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N.K. Misra Vs. J.N. Sen Sarma, Official Liquidator, Rajendra Paper Mills Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtOrissa High Court
Decided On
Case NumberCompanies Act Case No. 9 of 1982
Judge
Reported in[1985]57CompCas637(Orissa)
ActsCompanies Act, 1956 - Sections 454(1) and 545(3)
AppellantN.K. Misra
RespondentJ.N. Sen Sarma, Official Liquidator, Rajendra Paper Mills Ltd.
Appellant AdvocateH.B. Swain and ;S.S. Swain, Advs.
Respondent AdvocateParty in person and ;Standing Counsel
DispositionPetition allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........at titilagarh in the district of balangir under the provisionsof the companies act, 1956, and the official liquidator was directed tofunction as the liquidator.2. under section 545(3) of the act, the directors of the company were to submit a statement of affairs of the company within twenty-one days from the date of the winding-up order or within such extended time not exceeding three months from the date as the official liquidator or the court may, for special reasons, appoint. the petitioner who is an ex-director of the company was called upon by the official liquidator to submit the statement of affairs, books and records of the company. in response to the notice, the petitioner has come up with this application for a declaration that he has no liability for submitting the statement.....
Judgment:

P.K. Mohanti, J.

1. On December 24, 1959, there was an order for windingup of the company called M/s. Rajendra Paper Mills Ltd., having its registered office at Titilagarh in the district of Balangir under the provisionsof the Companies Act, 1956, and the official liquidator was directed tofunction as the liquidator.

2. Under Section 545(3) of the Act, the directors of the company were to submit a statement of affairs of the company within twenty-one days from the date of the winding-up order or within such extended time not exceeding three months from the date as the official liquidator or the court may, for special reasons, appoint. The petitioner who is an ex-director of the company was called upon by the official liquidator to submit the statement of affairs, books and records of the company. In response to the notice, the petitioner has come up with this application for a declaration that he has no liability for submitting the statement of affairs, books and records of the company. His contention is that he was only a nominal director and shareholder ; and he was not in charge of the books of account or the records of the company. He had no knowledge or information if the company functioned at all. There was no meeting of the directors at any time and, hence, he has no liability to submit any statement of affairs or the books and the records.

3. Though the petitioner as an ex-director of the company is liable to submit the statement of affairs of the company, it still remains for consideration whether, on the facts and circumstances of the case, there is any reasonable excuse for not filing a statement of affairs as required by Section 454(1) of the Act. It appears from the winding-up order passed in Companies Act Case No. 5 of 1957 that the company did not commence its business. It was not at all functioning or capable of functioning. No general body meeting was held at any time and no statutory return was ever filed. Thus, it appears, the company really ceased to exist, except on the records, and there was no question of maintaining any accounts or any other records. That being so, the petitioner would be unable to submit a statement of affairs of the company containing the particulars mentioned in Section 454(1) of the Act, after a period of about twenty-three years since the company was wound-up.

4. The petition is allowed.


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