M/S Sunku Auto Ltd. (in Liqn) v. Sri Syam Karthik Upadhyay and 2 Others

Telangana HC2 Jul 2014COMPA/49/2007

Case brief

AI extract

What is this about?

This court disposed of Company Applications seeking prosecution for breach of filing duties by untraced directors of a liquidated company. Accepting the Statement of Affairs filed by an available director, the court closed the applications against untraced accused and marked related applications as infructuous.

What did the court decide?

Statement of Affairs filed by Sunku Santosh Kumar accepted; Company Applications 49 of 2007 and 1236 of 2012 closed.

M/S Sunku Auto Ltd. (in Liqn) Vs Sri Syam Karthik… — Specific Performance | Telangana HC (2014)

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HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY COMPANY APPLICATION Nos.49 of 2007 and 1236 of

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2012

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COMPANY PETITION No.176 of 2003 Date:02.07.2014

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COMPANY APPLICATION No.49 of 2007 Between: M/s Sunku Auto Limited (in liquidation), Reptd., by the Official Liquidator

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……Applicant

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And: Sri Syam Karthik Upadhyay, Ex-Director of M/s Sunku Auto Limited and two others.

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..…Respondents

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Counsel for the applicant: Sri M.Anil Kumar Counsel for respondent Nos.1 & 2: None appeared Counsel for respondent No.3: Sri Markandeyulu

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AND

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COMPANY APPLICATION No.1236 of 2012 Between: M/s Sunku Auto Limited (in liquidation), Reptd., by the Official Liquidator

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……Applicant

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And: Sri Sunku Santosh Kumar, Ex-Director of M/s Sunku Auto Limited and another.

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..…Respondents

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Counsel for the applicant: Sri M.Anil Kumar Counsel for respondent Nos.1 & 2: Sri C.Praveen Kumar The Court made the following:

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HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY COMPANY APPLICATION Nos.49 of 2007 and 1236 of 2012

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In COMPANY PETITION No.176 of 2003

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COMMON ORDER:

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Company Application No.49 of 2007 is filed under Section 454(5) and (5A) of the Companies Act, 1956 (for short ‘the Act’) read with Rule-9 of the Companies (Court) Rules, 1959, for an order to summon, prosecute and punish the accused under Section 454(5) of the Act and to dispense with the presence of the complainant during the trial of the complaint.

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By order, dated 23.06.2005, made in Company Petition No.176 of 2003, this Court has directed winding up of M/s Sunku Auto Limited (in liquidation) and appointed the Official Liquidator attached to this Court as the Liquidator of the said company. Upon taking over, the Official Liquidator has issued notices under Section 454 of the Act to the Ex-Directors of the company in liquidation, who were shown as the Directors of the company as on the date of passing of order to wind up the company in liquidation, directing them to file the Statement of Affairs. As the said direction was not complied with by the Ex-Directors, the Official Liquidator filed Company Application No.1294 of 2005 in this Court under Sections 454 (2) and (5A) of the Act. As the summons issued by this Court could not be served on the accused, this Court has ordered splitting of the said Company Application as Company Application Nos.564 of 2006, 1803 of 2006 and 49 of 2007.

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Further, as the summons on accused No.2 in Company Application No.49 of 2007, viz., M.N.Swamy, was not served, this Court has directed the Police

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authorities concerned to trace out the whereabouts of the said accused. The Sub-Inspector of Police, B.Kothakota Police Station, Chittoor District submitted his report, dated 10.11.2009, wherein he has stated that despite hectic efforts made by them, they could not trace out the whereabouts of the said accused.

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Subsequently, the Official Liquidator, on the information received from IndusInd Bank, Secunderabad, came to know that Dr.Sunku Balaram, Sunku Santosh Kumar and Sunku Annapurna were shown as the Directors of the company (in liquidation). This Court, vide order, dated 25.07.2011, in Company Application No.49 of 2007 in Company Application No.1803 of 2006 in Company Application No.564 of 2006 in Company Application No.1294 of 2005 in Company Petition No.176 of 2003, directed the Official Liquidator to issue proclamation in respect of the said M.N.Swamy (Accused No.2 in Company Application No.49 of 2007), as per Section 82 of the Code of Criminal Procedure, by way of paper publication in ‘Sakshi’ Telugu daily and ‘Indian Express’ English daily newspapers having circulation in Chittoor District. The proclamation was, accordingly, made qua M.N.Swamy, vide publication, dated 16.08.2011.

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On the permission granted by this Court, the Official Liquidator filed Company Application No.1869 of 2011, arraying IndusInd Bank as the respondent, for an order to direct the said Bank to furnish the details of the properties standing in the name of the company (in liquidation) and also the personal properties, if any, standing in the name of M.N.Swamy (accused No.2 in Company Application No.49 of 2007). The SubInspector of Police, B.Kothakota Police Station, vide his

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reports, dated 03.03.2010 and 14.06.2012, stated that he has examined Smt Sunku Annapurna, W/o Sunku Balaram, and Sunku Vishnu, S/o Sunku Balaram, who stated that after the demise of Sunku Balaram, Sunku Annapurna has resigned from the company and that due to labour problem, the company was closed in the year 2004 itself. This Court by order, dated 04.12.2012, directed the Official Liquidator to file a separate application against the Ex-Directors of the company. The Police reported that Sunku Balaram has since died. The Official Liquidator has, therefore, filed Company Application No.1236 of 2012 arraying Sunku Santosh Kumar and Sunku Annapurna as the respondents and sought for a direction to them to submit the Statement of Affairs of the company in liquidation as required under Section 454 (2) of the Act. In pursuance of the summons issued by this Court, both the said respondents appeared before the Court and assured that they will extend all the co-operation that is required for giving the available information to the Official Liquidator by filing the Statement of Affairs of the company (in liquidation).

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The Statement of Affairs filed on 22.04.2014 by the said Sunku Santosh Kumar along with the second report, dated 12.06.2014, of the Deputy Official Liquidator is placed before this Court. In the said report, the Deputy Official Liquidator has pointed out certain deficiencies for compliance by the accused.

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At the hearing, Sri M.Anil Kumar, the learned counsel for the Official Liquidator, stated that on 30.06.2014, the accused has given clarifications in writing on the objections raised in the report of the Deputy Official Liquidator. He further submitted that in

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the above-mentioned facts and circumstances of the case, where the whereabouts of some of the ExDirectors of the company (in liquidation) could not be traced out, the Statement of Affairs filed by Sunku Santosh Kumar, one of the Ex-Directors of the Company in liquidation, under Section 454(2) of the Act, as clarified on 30.06.2014, may be accepted and both the Company Applications may be closed.

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Considering the above submissions of the learned counsel for the Official Liquidator and having regard to the facts referred to above, the Statement of Affairs filed by Sunku Santosh Kumar is taken on record and both the Company Applications are closed.

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As a sequel to closure of Company Application Nos.49 of 2007 and 1236 of 2012, Company Application Nos.1228 of 2007, 1869 of 2011 in Company Application No.49 of 2007 and Company Application Nos.1236 of 2012 and 528 of 2013 in Company Petition No.176 of 2003 stand disposed of as infructuous.

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____________________________ JUSTICE C.V.NAGARJUNA REDDY

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02^nd July, 2014 DR

M/S Sunku Auto Ltd. (in Liqn) v. Sri Syam Karthik Upadhyay and 2 Others

Case brief

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M/S Sunku Auto Ltd. (in Liqn) v. Sri Syam Karthik Upadhyay and 2 Others

Case brief

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