- (1.) An application under Section 543(1) of the Companies Act, 1956 was filed on 16-9-91 for and on behalf of the Official Liquidator by way of a Judge's Summons which are, inter alia, as follows : "1. Declaration that the Respondents and each of them, who were the Directors of the Company abovenamed at the time of winding up thereof and at all material times have misapplied, misappropriated and/or retained and/or become liable and/or accountable for Rs. 72,87,903.86 p. and/or guilty of misfeasance and breach of trust in relation to the said Company on the following grounds :- (a) The respondents have misappropriated a sum of Rs. 1,11,00,260.18 p. being the money lent and advanced by secured creditors and the said Respondents are bound to restore the sum of Rs. 1,11,00,260.18 p. together with interest thereon at the rate of 18% per annum being the prevailing rate charged by the Nationalised Banks from the date of liquidation until realisation. (b) The Respondents and/or each of them have misappropriated a sum of Rupees 39,14,443.75 p. being the unsecured loans collected mostly from various customers as and by way of advance and misappropriated the said sum. The said respondents are bound to restore the said sum of Rupees 39,14,443.75 p. together with interest thereon at the rate of 18% per annum being the prevailing rate charged by the Nationalised Banks from the date of liquidation until realisation. (c) The Respondents and each of them have failed and neglected to discharge the various liabilities including statutory liabilities to the extent of Rs. 14,36,282.62 p. which they have misappropriated by withdrawing on various heads of expenditure. The Respondents and each of them are bound to restore the said sum of Rs. 14,36,282.62 p. together with interest thereon at the rate of 18% per annum being the prevailing rate charged by the Nationalised Banks from the date of liquidation until realisation. (d) The Respondents and each of them have failed and neglected to collect various sums from the sundry debtors of the company as of 30/11/1983 to the extent of Rs. 4,64,565.31 p. The Respondents and each of them are bound to restore the said sum of Rs. 4,64,565.31 p. together with interest thereon at the rate of 18% per annum being the prevailing rate charged by the Nationalised Banks from the date of liquidation until realisation. (e) The Respondents and each of them have failed and neglected to deposit the Employees' State Insurance Corporation, Provident Fund, Sales Tax, Professional Tax, and other statutory liabilities to the extent of Rs. 3,30,391.00 p. The Respondents and each of them are bound to restore the said sum of Rs. 3,30,391.00 p. together with interest thereon at the rate of 18% per annum being the prevailing rate charged by the Nationalised Banks from the date of liquidation until realisation. (f) The Respondents and each of them have failed and neglected to deposit arrear Sales Tax arrear ESI Contribution and arrear salary Income-tax for which Certificate Cases have been instituted by the competent authorities for realisation of the said dues amounting to Rs. 41,961.00 p. which the Respondents have failed and neglected to pay and thereby misappropriated the sum. The Respondents and each of them are bound to restore the said sum of Rs. 41,961.00 p. together with interest thereon at the rate of 18% per annum being the prevailing rate charged by the Nationalised Banks from the date of liquidation until realisation. An order that all necessary enquiries be made and accounts be taken to ascertain as to what sum or sums the Respondents and each of them are liable to contribute in respect of the amount for which they have become liable and/or accountable. Examination of the conduct of the Respondents severally. Leave be given to the Official Liquidator to alter, amend and/or modify the application upon discovery and inspection of the Books of Accounts and/or documents of the company made by the Respondents." and for other reliefs.
(2.) It was contended by the learned Advocate appearing for the Official Liquidator that the respondents in an application under Section 543(1) of the Companies Act, 1956 have no right to file affidavit-in-opposition but may contest the proceedings by filing their points of defence only after the points of claim had been filed. But by a Judgment dated 10-1-92 delivered by Mrs. Ruma Pal, J. the hearing of Respondent No. 3 on the basis of affidavit-in-opposition regarding the maintainability of the application was allowed. The operative part of the judgment is as follows : "Accordingly, I allow the respondents No. 3 to be heard on the basis of his affidavit regarding the maintainability of the application. It is, however, made clear that if any disputed question of fact is involved the Court will relegate the respondent No. 3 to the normal procedure of trial of a misfeasance proceedings. Let this matter appear as "For Orders" on 20-1-92 for the purpose of determining the preliminary issues as far as respondents Nos. 2 and 3 are concerned. Let Xerox copy of this judgment be given to the parties upon the undertaking to apply for the certified copy of the judgment and payment of usual charges." It is submitted by the learned Advocate appearing for the Official Liquidator that the Official Liquidator is empowered under Section 543 of the Companies Act, 1956 to take appropriate steps against the delinquent director for the acts of misfeasance and/or breach of trust and for beneficial winding up of the company as also for causing investigation into the affairs of the company to find out the reasons of such winding up as also its state of affairs prior to the date of liquidation and upon such enquiry if it is found that anybody has misappropriated the funds of the company, to realise the said sum and to have the said sum restored back to the teal of the company. In the instant case the official liquidator investigated into the affairs of the company by appointing a Chartered Accountant from the approved panel of this Court and after going through the Investigation Report the Official Liquidator formed the opinion and initiated the present misfeasance proceedings.
(3.) Respondent No. 3 raised a preliminary issue by filing affidavit-in-opposition affirmed by Bidhan Kumar Dutt (the respondent No. 3 herein) as to the maintainability of the misfeasance proceedings. The case of the respondent No. 3 is that the company was wound up on 16-9-86 and by letter dated 25th/ 27/06/1984 addressed to A. Stock and Co. Ltd., I.R.C.I. withdrew the nomination of the respondent No. 3 as a director from Board of Directors of the company.;