Shri Sudhendu Chowdhury and anr. Vs. the Official Liquidator - Court Judgment

Excerpt:
prayer: petition filed seeking for a writ of mandamus, directing the 1st and 2nd respondents herein to release the goods viz.,237 units of old and used digital multifunction print & copying machines, imported vide bill of entry no.801230 dated 07.03.2011, under free as second hand capital goods in terms of para 2.17 read with definitions under para 9.12 of the foreign trade policy of 2009-14 without imposing any restriction in the absence of specific restriction in para 2.17 of foreign trade policy and in para 2.33 of handbook of procedures 2009-14 and any notification by 3rd respondent.1. this appeal is at the instance of two former directors of a company in liquidation and is directed against an order dated may 14, 2010, passed by a learned single judge of this court in c.a. no.203 of 2008. by the said order, his lordship permitted the appellants to put the official liquidator with funds for the advertisement to be issued in the statesman and sambad pratidin, two daily newspapers, inviting claims from the creditors of the company in liquidation in a summarised form. 2. it was further ordered that such advertisement should be published within a period of four weeks and should indicate that if no claim relating to the company in liquidation was lodged within a fortnight from the date of publication, the official liquidator would proceed to take expeditious step for dissolution of the company. 3. being dissatisfied, the two former directors of the company have come up with the present appeal. 4. it appears from the record that on an application of a creditor, a learned single judge of this court by order dated february 24, 2006 passed an order of winding up and such order has attained finality. 5. subsequently, the official liquidator lodged a complaint under section 454(5) and 5a of the companies act for non-filing of the statements of affairs against the appellants thereby giving rise to c.a. no. 203 of 208. 6. in the aforesaid proceedings for violation of section 454(5) and 5a of the act, the learned single judge, by the order impugned, noted the statement of the official liquidator that he was not in fund and that although the assets, as would be evident from the statement of affairs filed, were of the value of rs.17.4 lakh, yet, those had not been accounted for and only a sum of rs. 14,000/- was recovered by way of bank balance. 7. after recording such fact, the learned single judge passed the direction for depositing the cost of advertisement as pointed out earlier. 8. the grievance of mr. tewary, the learned counsel for the appellants before us, was that the learned company court erred in law in directing his clients to deposit such amount for advertisement which was uncalled for and that there was no justification of continuing with the complaint case. 9. mrs. sikdar, the learned counsel for the official liquidator has, on the other hand, supported the order impugned and has prayed for dismissal of the appeal. 10. after hearing the learned counsel for the parties and after taking into consideration the fact that the order of winding up has attained finality and that the official liquidator has lodged complaint against the appellant alleging violation of the provisions contained in section 454(5) and 5a of the act which is pending, we are of the view that the learned single judge did not commit any illegality in passing the direction impugned in this appeal. whether the appellants have really violated the aforesaid statutory provisions would be decided in due course, but at this stage, there is no scope of discontinuing with the complaint case initiated by the official liquidator before decision on merit. 11. similarly, the direction for advertisement was also in tune with the law when the order of winding up has attained finality. 12. there is no illegality in the order impugned justifying interference. 13. the appeal is thus devoid of any merit and is consequently dismissed. 14. in the facts and circumstances, there will be, however, no order as to costs.

Judgment:
1. This appeal is at the instance of two former directors of a company in liquidation and is directed against an order dated May 14, 2010, passed by a learned Single Judge of this Court in C.A. No.203 of 2008. By the said order, His Lordship permitted the appellants to put the Official Liquidator with funds for the advertisement to be issued in The Statesman and Sambad Pratidin, two daily newspapers, inviting claims from the creditors of the company in liquidation in a summarised form.

2. It was further ordered that such advertisement should be published within a period of four weeks and should indicate that if no claim relating to the company in liquidation was lodged within a fortnight from the date of publication, the Official Liquidator would proceed to take expeditious step for dissolution of the company.

3. Being dissatisfied, the two former directors of the company have come up with the present appeal.

4. It appears from the record that on an application of a creditor, a learned Single Judge of this Court by order dated February 24, 2006 passed an order of winding up and such order has attained finality.

5. Subsequently, the Official Liquidator lodged a complaint under Section 454(5) and 5A of the Companies Act for non-filing of the statements of affairs against the appellants thereby giving rise to C.A. no. 203 of 208.

6. In the aforesaid proceedings for violation of Section 454(5) and 5A of the Act, the learned Single Judge, by the order impugned, noted the statement of the Official Liquidator that he was not in fund and that although the assets, as would be evident from the statement of affairs filed, were of the value of Rs.17.4 Lakh, yet, those had not been accounted for and only a sum of Rs. 14,000/- was recovered by way of bank balance.

7. After recording such fact, the learned Single Judge passed the direction for depositing the cost of advertisement as pointed out earlier.

8. The grievance of Mr. Tewary, the learned counsel for the appellants before us, was that the learned company Court erred in law in directing his clients to deposit such amount for advertisement which was uncalled for and that there was no justification of continuing with the complaint case.

9. Mrs. Sikdar, the learned counsel for the Official Liquidator has, on the other hand, supported the order impugned and has prayed for dismissal of the appeal.

10. After hearing the learned counsel for the parties and after taking into consideration the fact that the order of winding up has attained finality and that the Official Liquidator has lodged complaint against the appellant alleging violation of the provisions contained in Section 454(5) and 5A of the Act which is pending, we are of the view that the learned Single Judge did not commit any illegality in passing the direction impugned in this appeal. Whether the appellants have really violated the aforesaid statutory provisions would be decided in due course, but at this stage, there is no scope of discontinuing with the complaint case initiated by the Official Liquidator before decision on merit.

11. Similarly, the direction for advertisement was also in tune with the law when the order of winding up has attained finality.

12. There is no illegality in the order impugned justifying interference.

13. The appeal is thus devoid of any merit and is consequently dismissed.

14. In the facts and circumstances, there will be, however, no order as to costs.