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Judgment
K.A. Puj, J.—The Official Liquidator has filed this complaint u/s 454 of the Companies Act requesting this Court to take cognizance of the default committed u/s 454(5) of the Companies Act, 1956 and to issue process against the accused Nos. 1 to 3 to try and punish them in accordance with the provisions of law and in view of the facts stated in the complaint.
This Court has issued the process on 22.11.2007. On 26.12.2007, this Court has passed an order wherein it is observed that the Ex-Directors of the Company have filed the Statement of Affairs on 23.11.2007. On verification of the statement of affairs, the Official Liquidator has found that stock in trade of Rs. 59,334/-and Rs. 2,182/- has been shown in Schedule-V, but it was not disclosed as to where the stock was lying. The Official Liquidator, therefore, wrote letter dated 24.12.2007 to the accused and requested them to hand over the possession of the stock. The Court has further recorded on that day, submission made by Mr.Pavan Godiawala, learned advocate appearing for the accused, that the accused were prepared to surrender the said stock to the Official Liquidator. He has also submitted before the Court that at the time when the possession of the assets of the Company was taken over, this fact was disclosed to the representative of the Official Liquidator. The Court, therefore, directed the Official Liquidator to place all the details about panchnama and inventory qua the same and the report prepared by his officer when the possession was taken over.
On 27.12.2007, this Court has passed further order. The file of the Official Liquidator was perused by the Court and Court observed that while going through the file presented by the Official Liquidator, it was found that the statement of affairs of the Company has been filed and statement of Ex-Director of the Company was recorded. The Concerned representative of the Official Liquidator, Mr.N.J.Kansara as well as Ex-Director of the Company both were present in the Court. One Mr.Arvindbhai Patel was also present alongwith Ex-Director. He has reiterated before the Court that all these facts were pointed out to the representative of the Official Liquidator. The same has been denied by the representative of Official Liquidator. Hence, both these persons Directors were directed to place the correct facts on record by way of affidavit. Mr.Manoj Shah original petitioner was present when the possession was taken. The Court, therefore, issued notice to the said Mr.Manoj Shah and directed him to remain present before the Court on 10.1.2008. The original accused were also directed to file their affidavit with regard to the stock in trade.
Pursuant to the order passed by this Court on 27.12.2007, further affidavit was filed by Mr.Jaykumar Shah on 9.1.2008. In para-3 of the said affidavit it was stated that at the time of handing over possession, he and Arvindbhai informed the concerned officer of the Official Liquidator that stock of watches are lying at 124, Vrundavan Shopping Center, 132 Ring Road, Nr.Medilink Hospital, Satellite, Ahmedabad. It was further stated that the said officer also accompanied with Shri Arvindbhai Patel after few days and visited the above place (godown) where the stocks were lying. The concerned officer upon visit informed that the valuer would be required while taking possession and the office of the Official Liquidator would undertake the exercise of the same and simultaneously the possession would be taken. Even at the time of giving the statement, he being the Ex-Director informed that the possession of the stocks of watches were not taken by the office of Official Liquidator but unfortunately, the statement did not reflect the same as per the information available. An affidavit was also filed on 9.1.2008 by Arvindbhai Patel, pursuant to the direction of this Court, wherein more or less same facts have been reiterated by him.
Pursuant to the notice issued by this Court on 27.12.2007, the original petitioning creditor Shri Manoj K. Shah was personally present before the Court on 10.1.2008. Mr.Anip Gandhi, learned advocate appeared on behalf of Shri Manoj K. Shah. On being asked by the Court, he has specifically stated that in his presence, Shri Joykumar Shan and Shri Arvindbhai Patel have asked the officer of the Official Liquidator about the stock lying in the godown. For this limited purpose, notice was issued on him and he has confirmed the facts stated by Shri Jaykumar Shah and Shri Arvindbhai Patel. Since the presence of Mr.Manoj K. Shah was no more required in the matter, thereafter the notice issued on him stood discharge on 10.1.2008.
Vide order dated 27.12.2007, the Court has directed Mr.N.J.Kansara to file affidavit. Pursuant to the same, he has filed his affidavit on 10.1.2008 and stated that it was not made clear on that day i.e. 28.5.2007 to him that some more stock was also lying elsewhere. From his affidavit, the Court found that though affidavits were of Shri Jaykumar Shah and Shri Arvindbhai Patel on 9.1.2008 and both these affidavits have been read by him, the specific averments and/or allegations made therein have not been dealt with by him in his affidavit filed on 10.1.2008 and the Court has asked him as to whether he wanted to file further affidavit in the matter, he expressed his desire to file further affidavit dealing with the averments made in the earlier two affidavits. For that purpose, the matter was adjourned to 16.1.2008.
The Court has also perused the report filed by the Official Liquidator on 9.1.2008 and placed on record sealed cover containing the valuation report of the stocks which have been collected from the godown. The stock was ordered to be disposed of in the same manner and in accordance with the directions which were earlier issued by the Court.
Subsequent to the order i.e. 10.1.2008, a further affidavit dated 28.1.2008 is filed by Shri Navinchandra J. Kansara. It is stated therein that on 28.5.2007 he had been to take possession of the registered office of the Company as directed by the Official Liquidator. Thereafter, in the meantime, he had accompanied them to the godown where the subject stock was lying and he specifically informed them to give in writing to the Official Liquidator so as to take possession officially with the help of valuer but they could not do so till filing of Statement of Affairs i.e. 31.12.2007. It is further stated by him in the said affidavit that as per the office procedure the said file was re-allocated to one of the Company paid staff Mr.Chital Sheth for onward process. On 5.7.2007, Ex-Directors recorded their statement under Rule 130 of the Companies (Court) Rules, 1959 but the subject stock matter was not recorded therein. He has further stated in the affidavit that in the event of miscommunication on the basis of statement of Ex-director before this Court and the action of not taking timely possession was neither intentional or willful for which he was not having any malicious intention. He has also expressed his unconditional apology before the Court.
Keeping in mind the above referred two affidavits filed by Shri Navinchandra J. Kansara, 10.1.2008 and 28.1.2008 it appears to the Court that the fact regarding stock lying in the godown was well within his knowledge. It is also matter of fact that despite this knowledge, the possession of the stock was not taken by the Official Liquidator. The affidavits filed by the Ex-Directors and the affidavit filed by Shri Navinchandra J. Kansara give different pictures about stock. The stand of the Ex- Directors were consistent that they have informed Shri Navinchandra J. Kansara for the stock. They have disclosed this fact in the statement of affairs and they have also shown their willingness to surrender the stock. On the other hand, the version which has come from the representative of the Official Liquidator that he has communicated to the Ex-Directors to write a letter to the Official Liquidator and thereafter with the help of the valuer the possession was taken. However, this version appears to be modified version as in earlier affidavit he has stated that he was not sure about the stock etc. The Court therefore take a view that the affidavit does not give the clear indication about the happening of the event. The fact still remains that there is no short fall in the stock and same stock was there when the possession was taken. The Court take serious decision in the matter, but for the fact that the stock was found intact and however the learned advocate appearing for the Ex-Directors as well as Ms.Amee Yajnik, learned advocate appearing for the Official Liquidator have pleaded before the Court that this may be the result of miscommunication and there may not be malafide intention behind it hence lenient view is required to be taken in the matter.
Having considered the facts and circumstances of the case and having seen the explanation tendered by the parties, the Court closes this chapter here by directing the Official Liquidator to take some precautionary measures with the staff and see to it that when any possession is sought to be taken all the assets of the Company in liquidation pursuant to the winding up order, proper record should be maintained, panchnama should be drawn and inventory may be taken and immediate action for taking possession or proper reporting should be made to that effect so that such situation in future can be avoided.
As far as criminal case is concerned the Ex-Directors have filed statement of affairs though there is some delay, extension of time was sought for, within the extended period statement of affair is filed. All queries raised by the Official Liquidator have also been satisfied by the Ex-Directors and there is no further query. The statement was also recorded and hence all the formalities have been observed by the Ex- Directors which are required u/s 454 of the Companies Act. Since prior explanation has been made by the Ex-Directors with regard to the filing of the statement of affairs nothing further is required to be done in the matter. This criminal complaint is accordingly disposed of and no action is required to be taken against the Ex-Directors pursuant to the said complaint.
(In his report the Official Liquidator has observed that the Ex-Directors have informed that the godown in which the stock is lying is not owned by the Company in liquidation but the same is owned by Birenbhai Dipakkumar, Shri Harshadbhai R. Joshi representative of the owner of the godown has submitted papers of the godown to the representative of the Official Liquidator. He has also produced the copy of minutes dated 2.1.2008, alongwith ownership paper of the godown, alongwith the report dated 9.1.2008. Based on this report, Mr.Pavan Godiawala, learned advocate submitted that the godown sealed by the Official Liquidator may be released. Therefore, we would consider this issue as and when appropriate application is moved before the Court.)