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Implications of Failure to file Statement of Affairs

March 5, 2012
K. R. SUBRAMANIAN V. OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA [(2009) 147 COMP CAS 123(KER) ] J.B. KOSHY & K.P. BALACHANDRAN JJ. Companies Act,1956 [Section 454] [DECIDED ON 15.10.2008] Companies Act,1956 – Sections 454 – statement of affairs – failure to file – liability of managing director – liability of erstwhile director- managing director showed reasonable cause – OL did not obtain the orders from the court to direct the erstwhile directors to file statement of affairs – company court convicted the MD and erstwhile directors – whether correct – held , no Brief Facts: Upon failure of the company to file statement of affairs within the stipulated time, complaints were filed against erstwhile managing director and some erstwhile directors of the company in liquidation. The official liquidator contended that even though some of the accused were not directors at the time of winding up, they could be issued notice and that the Board resolution showed that after they resigned from the Company they had not handed over the documents, and therefore notice issued to them was in order. The notices issued to the directors were held valid and the erstwhile managing director and the erstwhile directors were convicted and sentenced. They appealed to the High Court. Decision: Appeal allowed Reasons: The official liquidator can demand a statement of affairs from the officers or erstwhile officers of the company in liquidation as mentioned in clauses (a) to (d) of Section 454(2) of the Companies Act, 1956, only by getting orders from the court. Merely by non-filing of the statement of affairs, it cannot be deemed that it was not filed without any reasonable excuse.
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