@JUDGMENTTAG-ORDER
S.N. Hussain, J.@mdashHeard learned Counsel for the Official Liquidator as well as learned Counsel for Sri Mahendra Prasad, who was one of the petitioners filing this Company Petition but after winding up order has been relegated as defendant No. 1.
2. This Company Petition had been filed on 10-12-1998 by Sri Mahendra Prasad, his wife and three sons and Mahendra Prasad & Sons HUF through its Karta Sri Mahendra Prasad under the provisions of Section 433(e) and (f), read with Section 439(3) and (4) of the Companies Act, 1956 (hereinafter referred to as ''the Act'' for the sake of brevity) praying that Shree Vishnu Roller Flour and Oil Mills Private Limited (hereinafter referred as to ''the company under Liquidation'') may be wound up under the provisions of the Act and that any other order found just and proper be passed. In the said Company Petition, the Company under Liquidation was made opposite party No. 1, whereas Sri Naresh Kumar, the full brother of Sri Mahendra Prasad was impleaded as opposite party No. 2. Subsequently after hearing the persons concerned, a Bench of this Court vide order dated 2-5-2003 held that it was evident that the substratum of the Company had gone and the Company was not in a position to carry on the business and in that view of the matter, it was just and equitable to wind up the Company and the Official Liquidator was appointed as the Liquidator of the Company to proceed in the matter further in accordance with law. Since then the Company under Liquidation through the Official Liquidator became the petitioner and other parties were relegated as defendants.
3. It transpires that after winding up order, the said defendants did not submit the statement of affairs of the Company before the Official Liquidator within the time prescribed as per the provision of Section 454 of the Act. Thus, the Official Liquidator filed his report dated 21-12-2004 (Flag-20) stating that the ex-directors, namely, Sri Mahendra Prasad and Sri Naresh Kumar, have not submitted the statement of affairs in spite of notices sent to them, nor they have submitted any application for extension of time with the Official Liquidator or before the Court, and, hence, he prayed that the said ex-directors be asked to submit all other account books and records up to May, 2003 and the Official Liquidator may be permitted to file prosecution against the ex-Management of the Company under the provisions of Section 454(5) of the Act as already stated in the report of the Official Liquidator dated 6-9-2004 (Flag-15).
4. It also transpires that only when the said reports were submitted by the Official Liquidator, the aforesaid Sri Mahendra Prasad filed I.A. No. 1744 of 2005 (Flag-22) for being exonerated from filing the statement of affairs and for dropping the prosecution case against him. He also filed a reply dated 4-5-2005 (Flag-22A) to the report of the Official Liquidator dated 21-12-2004 (Flag-20) claiming that the petitioner was not liable to file statement of affairs and the proceeding may not be allowed to continue against Sri Mahendra Prasad. Thereafter a supplementary affidavit dated 12-5-2005 (Flag-22B) was filed on behalf of the said Sri Mahendra Prasad in support of his aforesaid contentions and annexing the relevant papers.
5. The said matters were taken up by this Court on 13-5-2005 and after considering the claim of Sri Mahendra Prasad and Sri Naresh Kumar that they were not the Directors of the Company on the relevant date and also that Form No. 32 was forged document, this Court specifically found that the said two persons were full brothers and one of them was the promoter Director of the Company and the other one was said to have been inducted as Director later on but they did not want to file statement of affairs and as such, it was difficult to ascertain the entire assets and liabilities of the Company in liquidation on the date on which the order of the winding up was passed, i.e., 2-5-2003 and, hence, this Court had no option, but to direct the Official Liquidator to proceed with the sale of the properties, which were seized in compliance of this Court''s order dated 16-8-2004.
6. This Court on the aforesaid date after considering the entire arguments of the parties as well as the materials on record also came to the conclusion that Mahendra Prasad was the promoter Director of the Company along with his father Sri Anant Ram and Sri Brijendra Prasad which fact is evident from paragraph 13 of the Articles of Association of the Company appended as Annexure-1 to the winding up petition. It was also found that the letter of the Registrar of Companies dated 15-3-2005 showed that in the records of the Registrar of Companies, Sri Mahendra Prasad was continuing as Promoter Director of the Company since no Form No. 32 communicating his resignation from the Board of Directors of the Company was ever filed and denying the aforesaid clear factual aspect the said Sri Mahendra Prasad through his counsel was asserting that he could not be compelled to file the statement of affairs as according to him he had already submitted his resignation to the Managing Director of the Company on 1-6-1993 and the Managing Director without filing Form No. 32 communicating his resignation to the Registrar of the Companies left for his heavenly abode.
7. It may be noted in this connection that vide an earlier order dated 11-1-2005, the then Company Judge had directed an enquiry to be lodged against Sri Mahendra Prasad under the provision of Section 454(5) of the Act and held that granting of permission to the Official Liquidator to launch prosecution in any manner would not affect the rights of Sri Mahendra Prasad because if he successfully proved in the inquiry before this Court, as asserted by him, that he had already resigned, then this Court may direct withdrawal of the prosecution lodged by the Official Liquidator. In view of the said order of this Court, the matter was heard and considered by another Company Judge on 13-5-2005 and the above-mentioned order dated 13-5-2005 was passed, whereafter the matter has finally come to this Court with respect to the inquiry.
8. No one appears on behalf of Sri Naresh Kumar, whereas learned Counsel for Sri Mahendra Prasad is present and has argued at full length and according to him, he had resigned from the Board of Directors of the Company in liquidation as far back as on 1-6-1993 and on the same date, he had sent his letter of resignation to the Managing Director of the Company as well as to the Registrar of Companies under certificate of posting (Annexure-20 to Flag-22/B). He further submits that on 24-5-1996, he had sent letters (Annexure-21 to Flag-22/B) to the District Magistrate, Gaya, Bihar State Financial Corporation, Gaya, Central Bank of India, Gaya, Director of Industries, Gaya, Assistant Commissioner, Commercial Taxes, Gaya and others stating that said facts, but although registry receipt of the said letter sent to the Director of Industries, Gaya is annexed as Annexure-21/A, but with regard to other addresses, no such registry receipt has been annexed. Another letter dated 9-7-1996 (Annexure-22 to Flag-22/B) is addressed to the District Magistrate, Gaya, Secretary, Marketing Board, Gaya and Assistant Commissioner, Commissioner Commercial Taxes, Gaya, but it shows that it was received only in the office of Marketing Board by someone hand to hand. Another letter dated 10-7-1996 (Annexure-23 to Flag-22/B) is addressed to the said authorities, but it shows receipt only from Bihar State Financial Corporation hand to hand. Another letter dated 2-11-1998 (Annexure-24 to Flag-22/B) sent by the Secretary of the Bazar Samiti to the Company in liquidation to which a reply was sent by Sri Mahendra Prasad on 5-11-1998 (Annexure-24/A to Flag-22/B).
9. From bare perusal of the said documents, it fully transpires that the letter of resignation (Annexure-20 to Flag 22/B) is claimed to have been sent by Sri Mahendra Prasad on 1-6-1993 to the Company in liquidation as well as the Registrar of Companies under certificate of posting, whereas other letters to the other authorities were sent either by registered post or hand to hand. It may be interesting to note that the Managing Director of the Company was none else than the father of Sri Mahendra Prasad himself and instead of handing over his resignation himself he had chosen to send the same under certificate of posting and there is no mention anywhere that the said letter of resignation was ever given or was even orally informed to his father, who was the Managing Director of the Company in Liquidation. Furthermore, the other communications vide the aforesaid Annexures 21 to 23 of Flag-22 /B, apart from being of a much subsequent period, i.e., 1996, are to irrelevant persons for the purposes of resignation and are not shown to have been sent either to the Registrar of Companies or to the Managing Director of the Company in liquidation. However, merely to show his genuineness, Shri Mahendra Prasad has produced a letter from the Secretary of Bazar Samiti, Gaya and his reply dated 5-11-1998 (Annexures-24 and 24/A) showing that he had asserted to have resigned on 1-6-1993, but the said assertion appears to be a mere ploy in the nefarious design of Sri Mahendra Prasad with a view to file the instant Company Petition which was filed immediately thereafter on 10-12-1998.
10. On the other hand, a letter dated 15-3-2005 (Annexure-B to Flag-21) had been sent by the Assistant Registrar of Companies, Bihar and Jharkhand to the Official Liquidator of the High Court informing that from the records of the office, no Form No. 32 showing resignation of Sri Mahendra Prasad from the Board of Directors has been filed and registered. In the said circumstances, the entire plea of the petitioner Sri Mahendra Prasad fails as it is well proved that Sri Mahendra Prasad never sent his letter of resignation either to the Registrar of Companies or to the Managing Director of the Company under liquidation through registered post and also in view of the fact that no verbal communication of resignation was ever made by Sri Mahendra Prasad to the Managing Director who was none else than his father.
11. In the aforesaid facts and circumstances, it is apparent that the said Sri Mahendra Prasad, who had filed the Company Petition, has raised an absolutely frivolous claim merely with a view to mislead this Court with respect to the assets of Company under liquidation and in that effort, he is not alone, rather his brother, namely, Sri Naresh Kumar, has also made some contributions. Thus, it is held that Sri Mahendra Prasad was a Director of the Company on the relevant date and, hence, he was liable to file statement of affairs of the Company, but he was intentionally not done so for the reasons best known to him. Thus, the report petition, reply and supplementary affidavit at flags 20, 22, 22A and 22B are hereby disposed of accordingly.
12. Furthermore, in the light of the aforesaid findings and observations of this Court, analogous Original Criminal Miscellaneous No. 02 of 2005 shall continue. Put up Original Criminal Miscellaneous No. 02 of 2005 after six weeks.
