Masud, J. - (1.) The important point to be decided in this appeal is whether misfeasance proceeding in connection with a company in liquidation can lawfully proceed against the heirs and legal representatives of an alleged delinquent director after his death. The facts of the case may briefly be stated as follows :
(2.) On January 8, 1958, Ballygunge Real Property and Building Society Ltd. was directed to be wound up under the Companies Act, 1956. On January 2, 1963, the official liquidator took out summons under Section 543(1) of the said Act against its directors including Dr. S. N. Sinha for a declaration that the said directors were guilty of misfeasance and breach of trust and also for an order directing them to repay or restore the money or property of the said company which they were alleged to have retained wrongfully. On November 16, 1969, Dr. Sinha died intestate leaving his son, Parthasarathi Sinha, and two married daughters, Smt. Maya Bose and Smt. Mira Mitra, as his heirs and legal representatives. Thereafter, on February 12, 1970, judge's summons was taken out at the instance of the official liquidator for leave to proceed with the said misfeasance application against the said heirs and legal representatives of Dr. Sinha and for their substitution in place of Dr. Sinha. On November 9, 1970, S. P. Mitra J., as his Lordship then was, passed an order for substitution. This appeal has been preferred on December 7, 1970, against the said order.
(3.) Mr. R. Chaudhuri, counsel for the appellant, has drawn our attention to the words in Section 543(1) of the said Act, and relying upon several English and Indian decisions, has submitted that the misfeasance proceeding, in the very nature of such proceeding, cannot continue against the heirs and legal representatives of a deceased director. Mr. B. Das, counsel for the official liquidator, however, has justified the correctness of this order of Mitra J, mainly on the ground that the heirs and legal representatives of the said delinquent director have enriched themselves by inheriting money or property of the said company which Dr. Sinha wrongfully retained.;