Partly allowed

Ol of M/S Umiya Ceramic Pvt. Ltd. (in Liqn) v. Rameshbhai Tapubhai Bhoraniya

Gujarat HC15 Jul 2022OJCR/3/2021

Case brief

AI extract

What is this about?

The court addressed a criminal case under Section 454(5) of the Companies Act, 1956 regarding delay in filing the Statement of Affairs. While accepting the accused's affidavit explaining the delay due to the pandemic as a reasonable excuse, the court imposed a lump-sum fine of Rs. 25,000 on each accused, disallowing the requested daily penalty.

What did the court decide?

Imposition of a lump-sum fine of Rs. 25,000 on each accused and exoneratio n from criminal case upon payment.

Ol of M/S Umiya Ceramic Pvt. Ltd. (in Liqn) Vs… — Company and Corporate | Gujarat HC (2022)

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C/OJCR/3/2021 ORDER DATED: 15/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL CASE NO. 3 of 2021

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In R/COMPANY PETITION NO. 32 of 2015

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OL OF M/S UMIYA CERAMIC PVT. LTD. (IN LIQN) Versus RAMESHBHAI TAPUBHAI BHORANIYA

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Appearance:

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MR PT JASANI(361) for the Accused No. 1,2 MR ABHIJIT P JOSHI(1330) for the Complainant(s) No. 1

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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 15/07/2022

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ORAL ORDER

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Heard Mr. Abhijit P. Joshi, the learned advocate appearing for the complainant and Mr. P. T. Jasani, the learned advocate appearing for the accused Nos.1 and 2.

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The complainant herein has prayed for the following reliefs :-

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“(A) That, this Hon'ble Court be pleased to take cognizance of the default committed under Section 454(5) of the Companies Act, 1956 and to issue process against the Accused No. 1 & 2 to try and punish them in accordance with the provisions of the law;

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(B) That, the Accused No. 1 & 2 be also directed to submit forthwith the Statement of Affairs to the Complainant as on

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Page 1 of 5

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C/OJCR/3/2021 ORDER DATED: 15/07/2022

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the date of winding -up order dated 26.02.2020 with full details in statutory prescribed form;

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(C) That, this Hon'ble Court may be pleased to impose fine of Rs. 1,000/- per day or such amount as may be considered just and appropriate by this Hon'ble Court for delay in filing of the Statement of Affairs as provided in sub- section 5 of Section 454 of the Companies Act, 1956;

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(D) That, this Hon'ble Court may be pleased to direct the Accused No. 1 & 2 to attend the office of the Official Liquidator for recording their statements under Rule 130 of the Companies (Court) Rules, 1959;

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(E) That, the Complainant's cost and charges incidental to these proceedings may be provided for under Section 626 of the Companies Act, 1956,

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(F) That, this Hon'ble Court be pleased to direct the Accused No. 1 & 2 to forthwith handover possession of books of accounts, records and other relevant documents of the said Company to the Official Liquidator.

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(G) For such other and further directions asmay be considered necessary under the facts and circumstances of the case, may be passed by this Hon'ble Court.”

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Mr. P. T. Jasani, the learned advocate appearing for the

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Page 2 of 5

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C/OJCR/3/2021 ORDER DATED: 15/07/2022

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accused Nos.1 and 2 submitted that appropriate steps are required to be taken under Section 454(5) of the Companies Act, 1956 in view of the order passed in the OLR No.32 of 2015 dated 28.2.2020.

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2.1 Mr. Abhijit Joshi, the learned advocate appearing for the complainant submitted that by order dated 28.2.2020 passed in the Company Petition No.32 of 2019, the Official Liquidator was appointed as provisional liquidator of the said Company. By order dated 4.10.2016 passed in the Company Petition No.32 of 2019 the Official Liquidator came to be appointed.

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2.2 Mr. Joshi, the learned advocate submitted that under Section 454 of the Companies Act, 1956 the Ex. Directors of the Company were required and legally bound to file with the Official Liquidator, a Statement of Affairs of the Company within 21 days from the date of winding up order or such time as may be extended by the office of the Official Liquidator not exceeding three months. It was further submitted that the Official Liquidator by letter dated 11.8.2020 intimated to Ex. Director of the Company to submit the Statement of Affairs in the office of the Official Liquidator which is required to be filed in accordance with Section 454 as well as the statement pursuant to Rule 130 of the Companies Act, 1956.

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In view of above, letters were addressed to the Ex-

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Page 3 of 5

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C/OJCR/3/2021 ORDER DATED: 15/07/2022

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Directors of the Company. Accused Nos.1 and 2 are present in the Court and have appeared through the learned advocate Mr. Jasani.

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Mr. Jasani, the learned advocate appearing for the accused Nos.1 and 2 is not in position to dispute the submissions advanced by Mr. Joshi, the learned advocate appearing for the complainant. As stated by Mr. Joshi, the learned advocate for the complainant there is delay of 399 days in filing the Statement of Affairs by the accused Nos.1 and 2. Mr. Jasani, the learned advocate submitted that a lenient view be taken while deciding the amount of penalty.

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It is not in dispute that there is delay of 399 days in filing of the Statement of Affairs by the accused No.1 and 2. Section 454(5) of the Companies Act, 1956 reads as under :

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“454 (5) If any person without reasonable excuse, makes default in complying with any of the requirements of this section, he shall be punishable with imprisonment for a term which may extent to two years or with fine which may extend to one thousand rupees for every day during which the default continues or with both.”

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The accused Nos.1 and 2 have filed the affidavit dated 8.6.2022 giving reasonable excuse for delay in filing the Statement of Affairs which are duly produced at pages 91 and

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Page 4 of 5

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C/OJCR/3/2021 ORDER DATED: 15/07/2022

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95 respectively, wherein delay in filing the Statement of Affairs is explained and submitted that due to corona pandemic, the accused Nos.1 and 2 could not file the Statement of Affairs in time.

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Apart from the explanation given by the accused Nos.1 and 2 the fact remains that there is delay in filing the Statement of Affairs by the accused No1 and 2 and therefore, as per the provisions of sub-section (5) of section 454 of the Companies Act, 1956, a lump-sum fine of Rs.25,000/- is imposed upon each of the accused. The accused Nos.1 and 2 are directed to deposit the amount of Rs.25,000/- each before the office of the Official Liquidator within a period of four weeks from the date receipt of this order.

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On the payment of aforesaid amount of penalty, the accused Nos.1 and 2 shall stand exonerated from the criminal case.

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With the above observations, the present criminal case stands disposed of.

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(VAIBHAVI D. NANAVATI,J)

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K.K. SAIYED

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Page 5 of 5

Ol of M/S Umiya Ceramic Pvt. Ltd. (in Liqn) v. Rameshbhai Tapubhai Bhoraniya

Case brief

What is this about?

What did the court decide?

Ol of M/S Umiya Ceramic Pvt. Ltd. (in Liqn) v. Rameshbhai Tapubhai Bhoraniya

Case brief

What is this about?

What did the court decide?

What the court decided

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