Karnataka High Court
O/L M/S Karnataka Ball Bearings Corpn ... vs A P Mehta on 15 September, 2010
Author: H N Nagamohan Das
Bench: H N Nagamohan Das
IN THE HIGH COURT OF KARNATAKA AT BAN GALORE
DATED THIS THE 15:11 DAY OF SEPTE1\/113;."'*liT{_A;:»2_(_'}u3'..{):_:V %
BEFOREMW
THE HON'BLE MR. IUSTICE L
C.A.NO.938/2d0.i:EN CO3. 10,/k1938': }
BETWEEN: . ' " :
OFFICIAL LIQUIDATOR OFI V A _ »
M/S. KARNATAKA BAL:m:;EA1LrNGs'»%._ % .V A
CORPORATI()§\Z'L1§\,iITIE:ZD (:2~;€~i;1@:;iDAT1Qr§1)
A"£'1"ACHE_D~'I*'Q 3:19-11 COURT 0:: 1QaRNATA1<A
Ix/FLOOR;fD5i:?'W;:wG_"'--J.'.'jAvL. 'V --
KEN:)R:YA"sA:)AN; .KORA,MA1_\TGAI4A
BANGALORE»-5e0i'o34. V ~ L %
" " __APPLICANT
(B}f'S1i.K.S.1\/LF_AEADVEV15;N 3: V.IAYA.RAM, ADV.)
_
NO.19:3, P_ALACE UPPER ORCHARDS
BANGALORE.
'V2. j}'.A.MEHTA
"f'PARIIAT"
" V .fNO.I95, PALACE UPPER ORCHARBS
BANGALORE.
d. u\;~
' . 'A .VBANG3igLORg-3.
A '-~ 'V (By sr1 .i<R,1"_s1{j1xIfl.r5.; S.DIXIT, ADV. FOR R2
3. D-A.I\/IEHTA
'°W'INDROSE"
N024/1, LAVELLE ROAD
BANGALORE560 O01
BANGALORE560 078.
4. T.A.SHAMANNA
NOJ03, 14"" CROSS
II BLOCK, IAYANAGAR
BANGALORE--56O O1 1.
5. M.D.NARAYANA
"CASE--DE--PAZ" ._ ,
N0.60,9"mMAJNRoAD -.
RA] MAHAL EXEENSIQN" -- 1; V
BANGALoRE;sc:e,Q>3o.
6.
No.4g47,%'S1N:iiVsQcfi?:>;*:'Y ' ~ »
PUNE.¢413 007 'V
7. sMT.SU.sHEEiA fAYRA1»LvMEHTA
No.20, 9TH CROSS, Sm
MALLESWARA2vI,.}
_ RESPONEENTS
A A M/S..1vL;?sJ~iESH 8: co. you R6
Sri UDAYA HOLLA, SRCOUNSEL ma R7)
(APPLJQ4 TIONDISMISSEDASAGADVSTR3
V/O 191:7: 122007/IWNDASAGAHVSTR5 V/0
' ._ ' fj_~D1T1¢:3..3.200ci R1 &R4 REPORTED T0 BEDEAD)
THIS APPLICATION FILED UNDER SECTION 454(5)
"AND (SA) OF THE COMPANIES ACT, 1955, READ WITH RULE
132 OF THE COMPANIES (COURT) RULES, 1959 PRAYING TO
0""
TAKE COGNIZANCE OF THE OFFENCE COMMITTED BY
THE ACCUSED HEREIN NOT COMPLYING '.VI'TH.p
REQUIREMENT or PROVISION OF sECTr0N;'_"4'54,;_~Qjiff7
COMPANIES ACT 1956 AND ETC.
'1
This application coming on tor
made the foilowing;
04119513 .
This application 04504(5)*Eand (SA) of
the Companies Act for the respondents
for not filing up order of the
company passed. It is seen from the
record' that of this application, respondent I
and 4 are reported-toibve dead. Further against respondent 3 and 5
0' __ carnet'o""'oe dismissed vide order dated 7.12.2007 and
respfezctively. Now the petition is only against
res_pon<ierit}no.2, 6 and 7.
0 Learned counsei for the Officiai Liquidator contends
0 after the winding up order came to be passed on 18.10.2001,
the second respondent filed statement affairs. After verification
/__,.r
ordersthis --day,u 'Vcotxrt '4
of statement of affairs filed by the second respondent, the Official
Liquidator pointed out certain defects and called upon thievsecond
respondent to produce the books of accounts
The second respondent explained that waybac1<;»in: thegferapr 1_:9l8'3
in the proceedings before DRT a se'cure'dc cred'itor~ yyaslllappoirzted
as operating agency and theyh--.aV_f{r"e.. seized the assets"and'tl1'e books i
of accounts of the company inpvslilquidation and ass'uci:"1i he may not
be able to furnish the details sought:fo_-r.}§yi.t'he'Official Liquidator.
ails." *ss.jags9§i:ide;§t§ao,6 -contends that on 10.4.1996 he
tenderedhisiiresignationllaslipbirector of the company in liquidation
andltihe.reafter hedid not attend any of the board meetings of the
' _lc'0Ir1p-any in liquidation and as such he ceased to be Director and
ii notlliableiisifori punishment under Section 454 of the Companies
Act" Respondent no.7 contends that she was not the
l' --..pl'}3irector of the company in liquidation at any point of time and
W
she has not subscribed her consent and signaturevpptofbe the
Director of the company in liquidation. She fiirthcr ¢¢5:::'e;nds--'-~:,:1§ar
she has not participated in the .affairs of i
liquidation and as such she is not iiaiiie 2 ii ii
5. On the basis plteadipngsfltihei' "Officiaii
Liquidator examined onezpwitness and got Inarked EXP}
to P6. The statement of respondent .uoi..2,--if6 _and 7 under Section
313 of Cr.PC.aisi3..cZarne::to be V.
ii _ 'I"iear'd"s«arga1_:rr1ents on both the side and perused the
entire a iicationfia ersfi
_ . pp P P
ii;-._is seen from the record that sixth respondent
iitendered"hisdresignation on 10.4.1996. Ex.D2 is the copy of
resigiiriation letter. It is the contention of sixth respondent that
ii his resignation on 10.4.1996 he has not attended the board
" meetings. He further contends that he was not actively
."-4
J.»
participating in the day to day affairs and the managernent_'o£_the
company in liquidation. As against this assertion' .
respondent, no material is placed o.n»~~re_cord.'ltovlshowthat he ll
attended the board meetings subsequentgto his'resign«ation=,on._
10.4.1996 and he was a Directorqilllas on tll1_el'i.'l3.x'fe ism or
winding up. Further in nrhispered a
word With regardto theipactivje. 'lsixth respondent
in the day liquidation. On the
other hand, her evidence that second
respondent .Director of the company in
liquidation _oI1w.tl'rel'datéllof order of winding up. In the
"circumsta'n.ces,p the applicant has failed to make out a case against
1" sixt'h respon,,de;it.'s
8:.-~ _vilfAdmittedly, the second respondent was the
Maru1aging..Director of the company in liquidation as on the date of
of winding up on 18.10.2001. Second respondent also filed
.7\~.«
J"
Corripanriies Act.
statement affairs after winding up order came to be passed.
Further the second respondent aiso submitted his__ef:<pianation:"t.o' ~
the queries raised by the Officiai
expianation it is seen that Way back iinatheiiyear .1993,» the --as'sets~_
and books of accounts of the cornpangr in to be
seized by virtue of an such for the
period subseqnenttvo did not had
access to in Iiquidation.
This ofI:;A:rhe"-second"respdndent appears to be just,
reasonable Vii' no case is made out against the
second' respondent.to". proceed under Section 454 of the
id 9. respondent contends that she is not the
V"~Director. the company in liquidation, she has not subscribed her
. ' signature and had not given her consent to be the Director of the
i ii '''company in liquidation. She filrther contends that at no point of
J"
time, she participated in the affairs of the company in liquidation.
As against this defense taken by the seventh respondent.' the
evidence available on record is Ex.P2.»~~Ex.P2 thell
annual report of the company in liquidation for the ».asseis--srriegnt~.u
year 1991-92. PW.1 in her evidence»deposedtlhat-Ishepcolrnpared V
Ex.P2 with the original, fgliat gth.epVloriginal xtrlasliavailable as
on the date of the.preparat-ion and there was
no irnpedirnenii, the original of Ex.P2.
A it::i.s...a"l:ertified copy issued by the
authorised 9' of conipany in liquidation by name
S.I.l\/Iehta their Managing Director. Therefore, on the
9 * face" itl§:'theA~Q_rai evidence of PW.1 in support of Ex.P2 cannot be
accepted..l"'*;It ié.:'tl'"1'e case of seventh respondent that she was the
wired' Managing Director -- S.I.l\/Iehta and they have
A separated on account of misunderstanding. In the light of
strained relationship between the seventh respondent and her
husband, Ex.P2 cannot be relied on. In view of the strained
\N
relationship of seventh respondent and her husband, anvelernent
of suspicion and doubt arises with regard to the
Ex.P2. Even otherwise, there is no evitlence record to-.s'hoi'v;(
that seventh respondent actively partic'ipa1;e_d in Aaffairs 'oi"'the'«..
company in liquidation. In the absefice of any eyidence, no
liability can be fixed oitnsevenith ;:eVs'po_ndenyt_ for not filing the
statement of affairs, .
For the za'bo'Ve,lifthe application is hereby
dismissed. _6.and 7 are hereby discharged and
the proceedings agai hereby dropped.
.....
Judge 23x52?"-