Sabyasachi Mukharji, J. - (1.) This appeal arises out of an order made and judgment delivered on December 10, 1979, by Mr. Justice Salil K. Roy Chowdhury. By the said order the learned Judge directed that Sri Tulsidas Mundhra be arrested to suffer simple imprisonment for three months. This order came to be passed because there was misfeasance. The order was to the following effect ; "This Court doth hereby declare that the above named respondent Haridas Mundra and Gopidas Mundra and Tulsidas Mundra as the Directors of the said Company and in particular the said Haridas Mundra also as the proprietor of the said company had misappropriated, retained or become liable or accountable for the money or property of the said company or are guilty of misfeasance and breach of trust in relation to the said company in (i) that the respondent Directors of the said company in particular the said Haridas Mundhra made secret profits and/or obtained personal advantage by causing two lacs and ninety thousand shares of Rupees ten and valued at Rupees twenty nine lacs to be allotted in the name of F. C. Osier (India) Ltd., and wrongfully utilising the said shares for his/their personal gain and/or in making illegitimate profits by dealing with the said companies shares and/or by issuing or causing to be issued shares scripts of the said company fraudulent entry and without consideration to the extent of sixty five thousand shares of Rupees ten each valued at Rupees six lacs and fifty thousand and further extra shares to the extent of sixty three thousand and five hundred shares of rupees ten each valued at Rupees six lacs and thirty five thousand and (ii) that the Directors of the said company and the said Haridas Mundhra in particular are liable and accountable for loss of shortage of assets of the said company to the extent of at least Rupees sixty three lacs fifty thousand five hundred and thirty nine and ninety paise which the said company should have possessed at the rate of winding up having regard to paid up shares capital and the loan obtained on mortgage and the value of the Tea Gardens sold and the value of equity of redemption realised as mentioned in the statement of particulars and set out in the Schedule hereunder written whereby the sums mentioned in the said Schedule became wholly lost to the said company as insolvent on the sixteenth day of June in the year, one thousand nine hundred and sixty one and it is further ordered that the said respondents do jointly and severally contribute to the assets of the said company and do pay to the applicant all such sums as found liable to contribute to such assets as mentioned in Clauses (i) and (ii) as aforesaid together with interest on such sums at the rate six per cent per annum as from the several dates on which the said sums are payable until payment."
(2.) Sri Haridas Mundhra, as the order states, was the principal Director and Sri Tulsidas Mundhra, his brother, was another Director were found guilty of breach of the fiduciary manner in which the Directors are supposed to act. Mr. Justice A. K. Basu examined the judgment debtor under Order 21 of the Civil P. C. and certain facts came out which indicate that the gross income of the appellant was Rs. 70,000/- but his assessable income came to about Rs. 15,000/-per month, according to him. The appellant had employed an accountant. He had an office at the Tagore Castle and his wife was a Director of several companies and further the appellant, Sri Tulsidas Mundhra, was also a Director of several companies which had all gone into liquidation and in most of these companies, Sri Haridas Mundhra and other members of his family were interested. It also appears from the said examination as also from the subsequent examination by Mr. Justice Salil K. Roy Chowdhury under Section 51 of the Code that the appellant stays in a flat in Southern Avenue, which was quite spacious. Furthermore, he and his family members used to travel by Air for personal and business reasons to various parts of India. He does not seem to have given an indication that he had little income and money or he had any financial stringency either in his living or for his movement. He had also given an impression, that he could raise money from the market and he had credit in the market. Learned advocate for the respondent submitted that from the examination of the judgment debtor, on both occasions, the following facts emerged : (1) the judgment debtor had an income of Rs. 70,000/- per year, (2) he and the members of his family used to move by Air, (3) he was still carrying on the business, (4) he had an office at Tagore Castile, (5) he had a residential flat in the Southern Avenue, Calcutta, which was quite spacious, (6) the judgment debtor was a Director of several companies all of which had gone into liquidation, (7) his wife had substantial means, shares and assets. Before Mr. Justice Salil Kr. Roy Chowdhury, the judgment debtor was asked how he was able to raise money for his movement by Air and he said that he used to take loans from X, Y & Z. As we have mentioned hereinbefore, there does not seem to be any dearth of money either for his movement or for his living. He had also given in marriage four of his daughters and one of his daughters, at the relevant time, was still unmarried. In these facts and circumstances, Mr. Justice Roy Chowdhury found against the judgment debtor under Section 51 of the Civil P.C. and therefore, he directed his arrest and simple imprisonment for three months.
(3.) The appellant has now appealed be-fore us on the ground that none of the ingredients necessary to bring the appellant under the mischief of Section 51 of the Civil P. C. had been proved. It was, secondly argued that in any event Clause (c) of the proviso to Section 51 of the Code does not apply in the facts and circumstances of the case. Thirdly, it was urged that Section 51 in any event has given the Court discretion and that the learned Judge has not properly exercised in the fact is and circumstances of the case his discretion.;