CA No.456 of 2011
With
CP No.456 of 2009
IN THE HIGH COURT AT CALCUTTA
ORIGINAL JURISDICTION
ORIGINAL SIDE
In the matter of:
M/s. Theta Computer Services Pvt. Ltd.
(In Liquidation)
And
HDFC Bank Ltd.
Before:
The Hon’ble Justice
I.P. Mukerji
Date: 08.06.2011
Appearance:
Mr. A. Mitra Adv.,
The Court: This is an application by the petitioning creditor in a
winding up application. The winding up order was made on 31st
January, 2011. Under Section 445 of the Companies Act, 1956, the
petitioner was required to file a certified copy of the order with the
Registrar of Companies, West Bengal within 30 days of the date of the
order.
Such was not done. On 6th April, 2011 the office of the Registrar of
Companies issued a show cause notice to the petitioner as to why
prosecution should not be instituted against them under Section 445. In
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that Section, in default of the above compliance, the petitioner is liable to
face prosecution and imposition of fine.
This Judge’s Summons was taken out on 25th April, 2011, after
issuance of the above show cause notice. It is averred that the winding
up order could not be filed due to inadvertence and oversight.
Affidavit of service is on record. None appears on behalf of the
Registrar of Companies.
There are no details as to how this oversight occurred. Neither are
there any reasons for “inadvertence”. However, it is specifically pleaded
that there was no intention to violate the statute.
The question of intention in an alleged act of violation of a statute
would have been more relevant in a criminal proceeding.
Here, this Court is not concerned with determination of such
“intention”.
In my view, non-filing of a winding up order is a very minor matter
and does not have any serious consequences. Moreover, there is a
pleading that there was mistake on the part of the petitioner. That in my
opinion could be possible. Everybody may not know all the requirements
of the statute.
Considering the minor nature of the violation, I allow the petitioner
to file the certified copy of the above order with the Registrar of
Companies within 15th June, 2011. But I have also considered that such
leniency may give encouragement to others, not to file winding up orders
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with the Registrar of Companies, within time. In that view of the matter,
the petitioner will be permitted to file the order as above, upon payment
of cost assessed at Rs.3000/- to the Registrar of Companies.
This application is accordingly allowed.
All parties concerned are to act on a signed photocopy of this order
on the usual undertakings.
(I.P. Mukerji, J.)
SP/