Prakash Krishna, J. - (1.) HEARD Shri Raj Nath N. Shukla, advocate, learned counsel for the Official Liquidator in support of the application and Shri Ashok Mehta, learned counsel appearing on behalf of Ex-directors of the company in liquidation.
(2.) THIS is an application under Section 454 (5)/468 read with Section 630 of Companies Act, filed on behalf of the Official Liquidator for taking cognizance of offence committed by Ex-directors of the Company in liquidation for non-filing of the statement of affairs within the prescribed limit of time under Section 454 (5) of the Companies Act. The further prayer in the said application is for taking cognizance of Section 468 for non-handing over the assets of the Company in liquidation. The facts of the case for the purposes of disposal of this application may be noticed in brief. On 3rd of November, 1999 the provisional Official Liquidator was appointed on a petition filed by Shri Neeraj Kumar Srivastava, one of the creditors. The Official Liquidator was appointed as provisional liquidator. The Official Liquidator issued notices under Section 454/456 (2)/468 of the Companies Act to all the Ex- directors of the Company (in liquidation). Shri Dharmendra Kumar Srivastava, Shri Virendra Kumar Srivastava, Shri Manoj Kumar Srivastava and Shri Ajay Kumar Srivastava were admittedly Directors of the Company at the relevant point of time. There is some dispute as to whether Shri Rajesh Kumar Srivastava was continuing as Director of the Company on the relevant point of time or not. Shri Ashok Mehta, the learned counsel appearing for Shri Rajesh Kumar Srivastava, submits that he had resigned earlier. For the purposes of this application, he is not taken into consideration and the said controversy shall be adjudicated upon at appropriate stage. However, the fact remains that in spite of service of notice, the persons who were, admittedly, Ex-directors named above, failed to file statement of affairs within the prescribed limit of time. The final winding up order was passed on 25.1.2000. Shri Ajay Kumar Srivastava, one of the Ex-directors filed the statement of affairs after about 5 years i.e. on 17th November, 2005. Hence, the present application. Replies have been filed through paper Nos. 13 and 14. Shri Ajay Kumar Srivastava has filed his reply separately being paper No. 15. The stand taken by him is that he along with the other Directors was appointed on 2nd of November, 1998 and no business was carried out by the Company even at that time. The records of the company were never handed over by the previous Directors who were in hold of affairs till 1998. On liquidation, he made efforts to collect necessary documents and that is the reason that he could not furnish the requisite documents within the prescribed limit of time. The other Directors namely Dharmendra Kumar Srivastava and others filed their reply vide paper No. 16 and have adopted the affidavit of Shri Ajay Kumar Srivastava. From the facts stated above it is apparent that, admittedly, there is a default in filing the statement of affairs. Shri Ashok Mehta learned counsel appearing on behalf of the Ex-directors strenuously submit that even if there was default, there was reasonable cause for not complying with the requirements of Section 454 of the Act. He submits that in view of sub-section (5) of Section 454 of the Act, the Court may excuse the delay in filing the requisite documents. Shri Rajnath N. Shukla, advocate, on the other hand, submits that the default being statutory default, the Ex-directors are liable to be penalized under sub-section (5) of Section 454 of the Companies Act. Elaborating the argument he submits that taking the defence as set out by them on their face value, no reasonable cause for not filing the requisite documents within the statutory time, is made out.
(3.) CONSIDERED the respective submissions of the learned counsel for the parties and perused the record. So far as the facts are concerned, they are not much in dispute. The default on the face of it is established. Only question which survives is as to whether there was reasonable cause for not making deposit within time or not. Having heard the learned counsel for the parties, this Court is not satisfied that the Ex-directors had any reasonable excuse for not filing the statement of affairs within the prescribed limit of time. Except making a bald allegation in the affidavit, no material has been placed before this Court in support of the contention that records were not handed over to them by the outgoing Directors of the Company. In absence of any corroborative material in support of the said plea, it is not possible to accept the same.;