Directors of a company in liquidation have a reasonable excuse for not submitting a statement of affairs within the prescribed time if they do not have access to the necessary records.

Sanjeev Prakash Sharma, J.

This application moved by the Official Liquidator under Section 454 of the Companies Act 1956 on account of the failure of the respondents-directors of the company in liquidation, in not submitting the statement of affairs as required under Section 454(1) of the Companies Act, 1956 (hereinafter referred to as 'the Act of 1956').

2. The brief facts needs to be noted are that the company in liquidation namely M/s Rajasthan Commercial and Industrial Finance (India) Limited was incorporated on 08.11.1985. The winding up order was passed by this Court on 03.11.1989 in company petition No.20/1988 and the official liquidator was appointed from the date of winding up order. It is an admitted position that the respondents are Ex-directors of the company who were required to file statement of affairs of the company as per Section 454(3) within time or such extended time as mentioned therein. It is also admitted position that statement of affairs was not filed.

3. Learned counsel for the official liquidator submits that on 04.11.1989, the OL took possession of the registered office. There were about 28 to 32 branches of the company yet records were supplied to OL's office only to 5 branches. On 05.12.1989, the notice was sent under Section 454 read with Rule 124 of the Rules to the ex-directors for submitting the statement of affairs. On the said notice, reply was received from the respondent No.1 stating that he has resigned long back while respondent No.2 and 3 submitted their replies stating that due to their illness the statement of affairs cannot be filed. Company application No.11/1992 was also filed for dispensing with the requirement of filing statement of accounts as the entire record was with the official liquidator and further it was alternatively prayed to appoint chartered accountant for preparation of statement of affairs. As has come on record on 11.12.1992, this Court appointed Shri R.M. Khandelwal, the chartered accountant to prepare statement of affairs. He submitted the statement of accounts and affairs on 31.12.1987 instead of upto the date of winding up i.e. 03.11.1989. The statement of affairs submitted by Mr. R.M. Khandelwal does not contain the address of the branches, summery debtors and secured creditors, etc. Letter, therefore, was sent by the official liquidator to remove defects. The respondent Nos.2 and 3 were directed to provide the record subsequent to year 1987 but the said record was not made available. Ultimately, this Court while disposing of the application No.11/1992 vide its order dt.24.01.2003 give liberty to the official liquidator to move application under Section 454. Accordingly, the present application has been filed.

4. The official liquidator admits that respondent Nos.2 and 3 handed over the record but the same was not completed and only related to five branches instead of 28 to 32 branches. Thus, it is stated that the respondents have committed the offence within the meaning of Section 454 and they are liable to be punished. The reply has been filed to the application where it has been stated that when the company in liquidation was promoted by Late Shri Vijay Kumar Kaushl, who was the husband of the respondent No.3 and the business of the company in liquidation was flourished through his life time. On 04.01.1988, Shri Vijay Kumar Kaushal suddenly expired in a road accident and the respondent Nos.2 and 3 were appointed as directors in a meeting up of the shareholders whereafter an inventory of the articles in company was prepared. The respondents have stated that they had become Directors only for the purpose of making payment to the creditors of the company and to complete the unfinished work of late Shri Vijay Kumar Kaushal so that money belonging to the customers of the company may be repaid to them. They even made efforts to keep continuing the business of the company but the bankers of the company namely SBBJ did not allow the respondents to operate th