Delhi High Court
Neeraj Gupta vs Official Liquidator on 5 October, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th October, 2012
+ Co. App. No.76/2012
% NEERAJ GUPTA ....Appellant
Through: Mr. Vibhu Bakhru, Sr. Adv. with
Ms. Chitra Sharma, Adv.
Versus
OFFICIAL LIQUIDATOR ..... Respondent
Through: Mr. Kanwal Chaudhary, Adv. for
Official Liquidator.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The appellant is aggrieved from the order dated 17 th July, 2012 of the
learned Company Judge dismissing (with costs of Rs.25,000/-) Co.
Application No.2188/2011 preferred by the appellant seeking his discharge
from criminal prosecution against him in terms of Section 454 of the
Companies Act, 1956. Notice of the appeal was issued and the senior
counsel for the appellant as well as the counsel for the Official Liquidator
have been heard.
2. The appellant sought discharge pleading that he had resigned as
Director of the Company in liquidation on 25th March, 2001; that the
petition for winding up was presented on 8th October, 2002 and the order of
appointment of the Provisional Liquidator was made on 3 rd April, 2003 and
the winding up ordered on 11 th August, 2004.
3. It appears that there was a dispute about the date of resignation of the
appellant and the learned Company Judge called for the records from the
Office of the Registrar of Companies and which disclosed that Form 32 qua
the resignation of the appellant as Director was uploaded only on 3 rd March,
2003.
4. However even if the appellant is deemed to have resigned on 3 rd
March, 2003, it was still before the appointment of Provisional Liquidator
on 3rd April, 2003. It appears to have been the contention of the appellant
before the learned Company Judge that he was thus not liable for filing the
Statement of Affairs. The learned Company Judge however negatived the
said contention observing "That apart, in terms of Section 454(2) (a) a past
officer is also liable to file his Statement of Affairs".
5. We had during the hearing invited the attention of the counsels to the
recent dicta dated 13th July, 2012 of the Division Bench of this Court in Co.
Appeal No.44/2012 titled Ashwani Suri Vs. M/s Ganga Automobiles Ltd.
(In liquidation) reported as MANU/DE/3171/2012 holding that under
Section 454, the duty to submit the Statement of Affairs is cast on two
categories of persons; the first category consists of only those persons who
are officers of the Company on the date of appointment of Provisional
Liquidator or on the date of winding up order; the second category of
persons comprises of those who "have been" the officers of the Company;
the duty to submit and verify Statement of Affairs is automatically cast on
the first category and is not dependent on any direction of the Court or a
notice from the Official Liquidator but in case of second category of
persons, the obligation to submit and verify the statement arises only when
there is a direction of the Court or when the Official Liquidator issues notice
requiring them to submit and verify the statement.
6. We have thus enquired from the counsel for the Official Liquidator as
to whether there is any order of the learned Company Judge, of a date prior
to the initiation of prosecution of the appellant, directing the appellant to file
the Statement of Affairs, in as much as the appellant falls in the second
category aforesaid and the learned Company Judge, in the impugned order,
has proceeded on the premise that the liability of the second category of
persons to file Statement of Affairs is automatic, as of the first category of
persons and which is contrary to the dicta aforesaid of the Division Bench.
7. The counsel for the Official Liquidator seeks time to file an affidavit
on the aforesaid aspect.
8. We are however of the opinion that no purpose will be served in
keeping this appeal pending and in conducting the inquiry aforesaid in terms
of Ashwani Suri supra in this appeal, when the same has not been
undertaken by the learned Company Judge. Even otherwise it is felt that it
will be more expedient for such inquiry to be held by the learned Company
Judge.
9. We accordingly set aside the order dated 17 th July, 2012 impugned in
this appeal and remit Co. Application No.2188/2011 (dismissed vide
impugned order) for consideration afresh by the learned Company Judge in
accordance with law and particularly the judgment in Ashwani Suri.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
OCTOBER 5, 2012
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