CP No.35 of 2007 (O&M) - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CP No.35 of 2007 (O&M) Date of Decision: 17.09.2009 **** M/s.Ekadhikan Shiksha Niketan Pvt. Litd. ( in liquidation) . . . . Petitioner VS. 1. Sandeep Maan r/o 637/1, Sector 16-D, Chandigarh 2. Ms. Seema Maan r/o 637/1, Sector 16-D, Chandigarh 3. Ms. Vandana Rana, Doctors Comapus Room No.10, Sector 12, Chandigarh . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Ms. Puneeta Sethi, Advocate for the OL Mr. Anand Chibbar, Advocate for the respondents **** SURYA KANT J.(ORAL) This Company Petition under Section 454 (5) & (5-A) of the Companies Act, 1956 has been filed by the Official Liquidator, inter alia, alleging that respondents have failed to furnish the complete Statement of Affairs in terms of Section 454(2) of the Act and made themselves liable for prosecution. The undisputed facts are that the respondents were Managing Directors/Directors of M/s.Ekadhikan Shiksha Niketan Pvt. Ltd. (in liquidation) which was ordered to be wound-up by this Court vide order dated 21.07.2005 passed in CP No.7 of 2005. The respondents were at the helm of affairs of the Company and were obligated to maintain and update the records at the relevant time. CP No.35 of 2007 (O&M) - 2 - The Official Liquidator has averred that on his appointment as Liquidator of the Company in winding-up, the respondents/Ex-Directors failed to file the Statement of Affairs within 21 days of the date of passing of the winding-up order. Notices were issued and in response thereto a reply/affidavit has been filed by the First Respondent. In para No.5 thereof, he has submitted that though the Statement of Affairs was filed with the Official Liquidator on 16th October, 2007 but the Official Liquidator vide letter dated 16.11.2007 (Annexure A1) attached with the Affidavit pointed out various discrepancies in the said Statement of Affairs. The First Respondent has candidly admitted that “he tried his level best to remove the discrepancies but showed his inability to file the audited balance sheet as he was not in the possession of the accounts book”. Para 6 of the affidavit is to the following effect:- “That the deponent is unable to remove all the discrepancies in the statement of the affairs in absence of the account books and record about which the deponent was in the belief had been taken by the auditor of the Company and thus he wrote letters to the auditor of the Company Sh. Anoop Sharma on 01.05.2008. The copy of the letter is attached as ANNEXURE A-3. But the belief of the deponent proved wrong as in reply to this letter Sh. Anoop Sharma has categorically denied having any account books or any other record related to accounts of the Company. The copy of the letter is attached as ANNEXURE A-4. The letter dated 16.11.2007 (Annexure A1) sent by the Official Liquidator to the First and Second Respondents or the list of various discrepancies in the Statement of Affairs, in a way are admitted by the respondents. Though the respondents have made an effort to explain the cause of their inability to remove the discrepancies, however, in my considered view, the same does not constitute a reasonable excuse within the meaning of sub-Section (5) of Section 454 of the Act. The explanation rendered by the respondents is, therefore, rejected and they are held guilty of making default in complying with the requirements mandated by sub-Section (2) of Section 454 of the Act. CP No.35 of 2007 (O&M) - 3 - Faced with this situation, learned counsel for the respondents pleaded mitigating circumstances and pointed out that the respondents are teachers and due to tragic circumstances in the family that they could not retain or maintain the records of the Company. Having given my thoughtful consideration to the submissions made on behalf of the respondents No.1 & 2, it appears that no useful purpose shall be served by subjecting the respondents to civil imprisonment and the ends of justice would be adequately met if they are punished with imposition of fine in the sum of Rs.10,000/- each i.e. total Rs.20,000/-. Ordered accordingly. The respondents are directed to deposit the amount of Rs.20,000/- with the Official Liquidator in the Common Pool Fund Account within a period of 2 months failing which the Official Liquidator shall be entitled to get this petition revived by moving an appropriate application as contemplated under the law. On deposit of the fine, the respondents shall be absolved of all future consequences. (SURYA KANT) JUDGE 17.09.2009 shonkar