OFFICIAL LIQUIDATOR OF SHUBH Vs. BRIG MOHAN GOGNA

JUDGEMENT

(1.) BY way of judge's summons taken out under Section 454(5) of the Companies Act, 1956 (for short 'the Act') the official liquidator has prayed for an order to punish non -petitioners Nos. 1 and 2 for committing the offence under Section 454 of the Act and to direct the non -petitioners to hand over the records of the company in liquidation to the official liquidator.

(2.) THE contextual facts depict that M/s. Shubh Laxmi Savings and Finance Pvt. Ltd. having its head office at Gopalji ka Rasta, Johari Bazar, Jaipur and branch office at Naya Bazar, Ajmer, Gumanpura Choraha Kota, Jalori Gate, Jodhpur and Alakh Sagar Road, Bikaner, was directed to be wound up vide order dated May 5, 1989. The non -petitioners Brij Mohan Gogna and Dhanna Lal Sharma were ex -directors of the company. The official liquidator was required to take all proceedings for winding up as per the provisions of the Act to take charge of all the properties and assets of the said company. The ex -directors of the company in liquidation retained all the assets movable and immovable properties of the company in liquidation. As per the provision of Section 454 of the Act read with 124 of the Companies (Court) Rules, 1959, every ex -director of the company is under statutory obligation to file statement of affairs of the company. The non -petitioners are guilty of misfeasance and breach of trust in relation to company in liquidation. Vide order dated January 18, 1995, the official liquidator was allowed to file application for prosecution under Section 454(5) of the Act against the ex -directors.

(3.) NON -petitioner No. 2 -Mr. Dhanna Lal Sharma, ex -director of the company in liquidation submitted that he already resigned from the company on October 1, 1979, and he was not managing the affairs of the company. He never retained movable and immovable properties and after his resignation the same were under the control of non -petitioner No. 1. He submitted that he had no knowledge about the application under Section 439(5) and 433(e) of the Act. He also submitted that it is not the duty of the chartered accountant to explain the duties and powers of the directors, the same have been laid down in the Legislature in the Act itself. He further submitted that he was a LDC in a private institution earlier and now he is UDC having 3 children, out of them one daughter is yet to get marry. Lastly prayed to dismiss the application.