Delhi High Court
M/S Dimensions Investment & ... vs Sh. Uday Dutt & Ors. on 5 July, 2019
$~CP-3 to 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 05.07.2019
+ CRL.O.(CO.) 2/2012
M/S DIMENSIONS INVESTMENT &
SECURITIES LIMITED ..... Petitioner
versus
SH. UDAY DUTT & ORS. ..... Respondents
+ CRL.O.(CO.) 11/2014
M/S UDAY DUTT ASSOCIATES (P) LTD ..... Petitioner
versus
UDAY DUTT & ORS. ..... Respondents
+ CRL.O.(CO.) 22/2015
KUBERSWAMY ASHUTOSH CONSULTANTS (P) LTD.(IN
PROV.LIQN.) ..... Petitioner
versus
SH. MUKUND KUMAR & ANR. ..... Respondents
Present: Mr.Kunal Sharma, Adv. for the OL.
Mr.Saurabh Soni and Mr.Kshitiz Rao, Advs. for Rajiv Bakshi,
ex-director.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CA No. 1446/2016 in CRL.O.(CO.) 2/2012
1. By this application, the applicant-Mr.Rajeev Bakshi prays that he may
be deleted from the array of the parties of the present Crl.O.(CO.) 2/2012. It
is submitted in the present application that the winding up petition was filed
in 2010 and the applicant had resigned from the claimant Company in 2009.
It is further stated that the applicant intimated the Registrar of Companies
about the factum of non-filing of Form 32 showing the cessation of the
applicant from the board of the claimant company by the company. It is
stated that the Registrar of Companies had filed a complaint against the
company for violation of Section 303 of the Companies Act for non-filing of
Form 32. Reliance is also placed on the report of the SFIO to state that the
SFIO has exonerated the applicant. Hence, the prayer to delete the name of
the applicant from the array of the parties.
2. A perusal of the record shows that the applicant resigned from the
board of the complainant company on 27.03.2009. The complainant has on
15.04.2009 acknowledged the receipt of the resignation and also accepted
the resignation.
3. A complaint was filed under Section 303 (3) of the Companies Act by
the Registrar of Companies against the complainant Company and Mr.Uday
Dutt, the Managing director for non-filing of form 32 for cessation of the
directorship of the company by the applicant-Mr.Rajiv Bakshi. Relevant part
of the application reads as follows:-
"3. That this office has received Complaint dated 25.06.2012
(copy enclosed as Annexure-III) from Shri Rajeev Bakshi
regarding non filing of Form 32 for his cessation from the
directorship of the Company. It appears from the complaint that
Company and its Director has not filed information about
Cessation of Shri Rajeev Bakshi from Directorship of the
Company as per the provisions of Section 303 of the Companies
Act, 1956."
4. Learned counsel appearing for the OL however states that under
Section 454 (2) of the Companies Act, the OL can direct the applicant to file
the necessary statement of affairs in as much as he has admittedly been
director for some time of the company.
5. The above stated contention has been denied by the applicant relying
upon the judgment of this court in the case of Dr.J.S. Gambhir vs.
Millennium Health Institute and Diagnostics (P) Ltd., (2014) 3 High
Court Cases (Del.) 11.
6. The Coordinate Bench of this court in the aforenoted case of Dr.J.S.
Gambhir vs. Millennium Health Institute and Diagnostics (P) Ltd.(supra)
held as follows:-
"25. A plain reading of Section 454(2) of the Act indicates that a
Statement of Affairs has to be filed by persons who are Directors
on the relevant date. Sub-section 8 of Section 454 defines the
relevant date to be the date on which a Provisional Liquidator is
appointed. And, in case where no such appointment is made, the
relevant date is defined to be the date on which the winding up
order is passed. In the present case, the relevant date would be
15.01.2010 when the order appointing the Official Liquidator as
a Provisional Liquidator was passed by this Court. Thus, all
persons who were Directors on 15.01.2010 were obliged to file a
Statement of Affairs.
26. The Official Liquidator could also require other persons as
specified in Section 454(2) of the Act to file a statement of
affairs, however, such a direction could only be passed in cases
where the Official Liquidator believed that such persons had
control over certain records of the company or had particular
knowledge regarding the affairs of the company. In the present
case, the liability was sought to be imposed on the applicant on
the assumption that the applicant was a Director of the company
at the relevant date (15.01.2010) and was thus, obliged to file a
Statement of Affairs. The Official Liquidator has proceeded on
the basis that the applicant was a Director solely on basis that the
records of the Registrar of Companies indicated the respondent to
be a Director of the company on the relevant date.
27. As stated earlier, the applicant is stoutly disputing the
assumption that he was a Director of the company on 15.01.2010.
It is apparent, from the reply filed on behalf of the company, that
the company represented the applicant to be a Director of the
company in spite of the applicant having submitted his
resignation only on the basis that his resignation had not been
accepted by the Board of Directors of the company. In
conformity with this stand taken by the company, the company
also did not file Form No. 32 with the Registrar of Companies.
28. In the aforesaid circumstances, the substratal controversy that
needs to be addressed is whether filing of Form No. 32 or
acceptance of resignation submitted by a Director is necessary
for the same to be effective. It is well settled that unless
otherwise specified in the Articles of Association of a company,
a resignation by a Director would become effective from the date
on which it is communicated. A resigning Director is not obliged
to file Form No. 32 with the Registrar of Companies. A
resignation by a director implies a relinquishment of his office.
This is a unilateral Act which unless the Articles of Association
otherwise provide, is not contingent on the acceptance by the
company. Directors act as agents of the company and are, thus,
also entitled to terminate their agency. The act of resignation or
relinquishment of the office would not require the consent of the
company and, therefore, would become effective from the time
when the intention to relinquish the office as a Director is
communicated."
In view of the above, in my opinion, in the absence of any other
material on record, it is quite clear that the applicant ceased to be a director
of the complainant company prior to the filing of the winding up petition.
Hence, the present complaint would not lie against him.
The application is allowed.
The applicant is deleted from the array of parties.
CA Nos. 1731/2017 and 1733/2017 in CRL.O.(CO.) 22/2015
CA No. 1447/2016 in CRL.O.(CO.) 11/2015
Learned counsel for the applicant states that the complainant company
here is a subsidiary of Dimension Investment & Securities Ltd. i.e.
complainant whose case has been dealt with by this court above. He states
that the facts are identical to the above matter.
In view of the above, the present applications are allowed.
The applicant is deleted from the array of parties of the present cases.
CRL.O.(CO.) 2/2012
CRL.O.(CO.) 11/2014
CRL.O.(CO.) 22/2015
List on 25.09.2019.
JAYANT NATH, J
JULY 05, 2019
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