HON’BLE SRI JUSTICE K. LAKSHMAN Company Application No.547 OF 2002 in Company Application No.611 OF 1998, Company Application No.611 OF 1998, and Company Application No.477 OF 2010 in COMPANY PETITION No. 84 OF 1997

COMMON ORDER

Heard Sri G. Kalyan Chakravarthy, learned counsel for the Official Liquidator, Sri S.Ravi, learned Senior Counsel appearing for respondent No.2 and 4 in COMPA No.547 of 2002 and 611 of 1998, Sri Deepak Misra, learned counsel appearing for respondent Nos.3, 5 and 10 in COMPA No.547 of 2002 and respondent Nos.3 and 5 in COMPA No.611 of 1998. There is no representation on behalf of respondent Nos. 6, 7 and 9 in COMPA No.547 of 2002 and COMPA No.611 of 1998. Mr. S.Seshasayee, Respondent No.8 was discharged by this Court. Sri S.F.H.J.Manikshaw, Respondent No.1 is no more.

2. Vide order dated 19.08.1998, this Court disposed of C.P.No.84 of 1997 and ordered winding up of M/s. Asia Pacific Investment Trust Ltd.

COMPA No.611 of 1998

3. Thereafter, OL has filed COMPA No.611 of 1998 under Sections 454 (5) and (5A) of the Companies Act, 1956 ( for short, ‘the Act’) read with Rules 125 and 132 of the Companies (Court) Rules, 1959 ( for short, ‘the Rules’), to Summon the respondent Nos.1 to 9 herein/Accused Nos.1 to 9 and to punish them under sub-sections (5) and (5A) of Section 454 of the Act, for non-compliance with the requirements under the said section with the following contentions:-

i. OL attached to this Court has issued notices to Respondents No.1 to 9 (Ex-Directors) of the said company for filing of statement of Affairs and also to deliver possession of the books of accounts and other records on 07.10.1998, 09.10.1998 and 19.11.1998, since the Respondents /Accused failed to submit statement of affairs within 21 days from the date of winding up order, as prescribed under Section 454(3) of the Act, 1956. According to the OL, the default commenced on 10-09-1998 i.e. 21 days after the winding up of the company.

ii. The OL in his report dated 24.11.1998 stated that no extension of time was sought for by the Accused either from him or from this Court as stipulated under section 454(3) of the Act. Therefore, they are liable to be punished under subsection (5) and (5A) of the Section 454 of the Act, for their non-compliance of the Statutory requirements under sub-section (1) (2) and (3) of the Section 454 of the Act.

iii. Therefore, he sought to allow the present application.

4. On the other hand, the respondent Nos.1 to 7 have filed counter stating that Respondent No.1 resigned and his resignation was accepted by the Board of Directors held on 09.04.1997. Respondent No.2 resigned on 09.04.1997, Respondent No.3 filed an affidavit of concurrence to the statement of affairs on 08.03.1999 filed by one Sri M.C.Jain, and it was taken on record by the Official Liquidator. Respondent No.4 resigned and his resignation was accepted on 10.02.1996. Respondent No.5 resigned and his resignation was accepted on 07.03.1997. Respondent No.6 resigned and his resignation was accepted on 28.06.1997 and Respondent No.7 resigned and his resignation was accepted on 15.01.1997. No counter filed on behalf of A.9. They all stated that as they resigned long back, they cannot be expected to be aware of the current status of the company and prepare and file the statement of affairs thereof. They have also filed copies of Form No.32. Therefore, they sought to drop charges against them.

5. By an order dated 29.03.2000, Respondent No.8 was discharged as he was neither the Managing Director nor a Director in the Board of Directors of the Company which was not disputed by the OL. On 19.02.1999, One Mr. M.C. Jain, claiming as Ex-Director of the company, has submitted the statement of affairs as required u/s.454 of the Act.

ANALYSIS AND FINDING OF THE COURT:-

6. Perusal of the report dated 15.04.1999 of the OL would reveal that one Sri. M.C. Jain, Ex-Director of the company has submitted the statement of affairs of the company on 19.02.1999. OL filed a repo