C.A.No.2937 of 2007 in C.P.No.72 of 2000 VINOD K.SHARMA, J. This application has been filed under Sec.460(4), 542 and 543 of the Companies Act, 1957 read with Rule 9 and 11(b) Companies (Court) Rules, 1959 by the Official Liquidator for initiating action against the Ex-Directors/respondents. 2. The petition filed is not competent as it does not meet with points of claim as prescribed in form 122 of Companies (Court) Rules 1959. 3. The prayer made in the petition is also to allow the Official Liquidator to place/accept further facts, at the time of hearing of this case, and further permit the Liquidator to meet the cost of this application from the funds of the Company. Thus, no relief in terms of Sec.452 of the Companies Act has been prayed for. 4. Even as per the report of the Official Liquidator, the averments made in this petition to sanction proceedings read as under: "STEPS TAKEN FOR RECOVERING THE ASSETS OF THE COMPANY IN LIQUIDATION 6. That pursuant to the winding up of the company, the Official Liquidator deputed his officials to the Registered Office of the company situated at 112, Sterling Road, Nungambakkam, Chennai 600 34. On 31.10.2002 to take possession of the assets and effects of the said company after giving prior intimation to the respondents herein. The deputed officials have reported that the representative of the Landlord of the premises Mr.S.S.Venkatesan informed that the premises was already sealed by the Official Liqudator for M/s.Maxworth International (I) Limited. He further informed that the said premises was leased only to M/s.Maxworth Orchards (I) Ltd. And Maxworth Country (I) Ltd. The Deputed officials then proceeded to Companies another premises at No.26, Murray's Gate Road, Alwarpet, Chennai 600 018 and reported that the said company was not functioning and it was locked since the company has already vacated 5 years back and do not know the address of the landlord. Hence the Deputed officials could not take the possession of the books and records and assets of the company in liquidation. STATEMENT OF AFFAIRS 7. That in accordance with Section 454 of the Companies Act, 1956, the ex-directors of the company in liquidation are required to submit with the Official Liquidator the Statement of Affairs showing the assets and liabilities as on the date of winding up within 21 days from the date of winding up order or within such time as extended by this Court. In this case, as the ex-directors have not filed the Statement of Affairs so far. Since the whereabouts of the company and its directors are not known the quantum of debts and loans and advances could not be arrived at. This office has done an inspection on the records of the Registrar of Companies, Madras and a copy of inspection report is annexed to this report as Annexure 'A'. CLAIMS:- 8. That the Official Liquidator has not called for claims from the creditors of the Company. ACCOUNTS:- 9. The funds position of the company as at 31.3.2007 Cash: Rs.16/- Bank Rs.8,091/- Investments Nil 10. That in terms of provisions of Section 542 and 543 of the Companies Act, 1956, if in the course of winding up proceeding, if it appears to the Official Liquidator that the directors of the company administered the company with intent to defraud the creditors of the company or any other persons, or for any fraudulent purpose, the court on application of the Official Liquidator, or the Liquidator or any creditor or contributory of the company, may, if it thinks it proper to do so, declare that any persons who were knowingly parties to the carrying on of the business in the manner aforesaid shall be personally responsible, without any limitation of liability,for all or any of the debts or other liabilities of the company as the court may direct. Further, if in the course of the winding up proceedings, it appears that any person who has taken part in the promotion or formation of the company, or any past or present director (Managing Agent, Secretaries and Treasures) Manager, Liquidator or Officer of the company has misapplied or retained or become liable or accountable for any money or property of the company or has been guilty of any misfeasance or breach of trust in relation to the company, the court may, on the application of the Official Liquidator made within 5 years from the date of winding up or of the first appointment of the Liquidator in winding up, or of the misapplication, retainer, misfeasance, or breach of trust, as the case may be, which ever is longer examine into the conduct of the person, direction or any officer and compel him to repay or restore the money or property or part thereof respectively with interest at such rate as the court deems fit. In the course of the winding up proceedings if the Liquidator finds that the ex-directors of the company in liquidation acted against the interest of the company and its shareholders, conducted the business of the company contrary to the provisions of the Companies Act and the Rules made under and filed to account for, to the Liquidator, then the ex-directors are liable for their acts and account for the same. In the present application, the Liquidator in the absence of the Statement of Affairs is not able to investigate the affairs of the company and frame charges for the liability of ex-Directors formisfeasance/malfeasance etc. Moreover, the Ex-Directors who are statutorily obligated under section 454 of Companies Act, 1956 to file a statement of affairs showing particulars as to details of assets and liabilities has not done so and hence, the affairs of the company could not be examined/verified. It is therefore submitted that due to non filing of Statement of Affairs, no material evidence is available with the Official Liquidator to frame charges under section 542 and 543 of Companies Act, 1956 against the Ex-Directors. Hence, Ex-Directors may be directed to file the Statement of Affairs with the Officials Liquidator with all particulars as enshrined in Sec.454 of the Companies Act, 1956 so as to enable the Official Liquidator to investigate the affairs of the company in the light of section 542 and 543 and come up with necessary application against the Ex-Directors/ respondents herein." 5. Thus, reading of the averments made would show that there is no allegation of illegal, fraudulent conduct by the ex-directors of the Company. There is no averments as envisaged under Sec.452 of the Companies Act, nor any evidence has been let to prove the allegations so as to prosecute the ex- directors of M/s.Maxworth Townships Private Limited. 6. The averments even if we take on face value, does not make out any case to pass an order against the ex-directors. 7. Consequently, this petition is ordered to be dismissed. No costs. 08.03.2011 vaan VINOD K.SHARMA, J. vaan C.A.No.2937 of 2007 in C.P.No.72 of 2000 08.03.2011