Permod Kohli, J. - (1.) PRESENT Company Application No. 131 of 1995 has been preferred by the Official Liquidator attached to this Court against respondent Nos. l and 2 and 4 with the following prayers: i) As respondents be called upon to make good the loss of Rs. 11,98,724.82 caused to the company (in Liq.); ii) the respondents may be directed to restore the property, movable & immovable held by them out of the funds of the company; iii) they may also be punished with imprisonment under Section 538(p) of the Companies Act, 1956; iv) any such other order being fit & proper in the circumstances of the case may also kindly be passed.
(2.) IT is stated that the learned District and Sessions Judge (V), Haryana, after recording evidence has submitted his report dated 31.03.1995 and returned a finding that a fraud has been committed by the Directors of the Company in the promotion, formation and conduct of the business of the Company. It is further mentioned that the creditors have claimed a sum of Rs. 11,98,724.82 which is required to be recovered from the respondents. Briefly stated, the facts leading to the filing of the present application are that the Company, namely, M/s Shivalik Savings & General Investment Limited, was wound up vide order dated 27.01.1989, passed in C.P. No. 34 of 1988. Statement of affairs was filed by the Ex Directors on 10.04.1990. The Official Liquidator ordered investigation by the Chartered Accountant on 6.7.1992. The Official Liquidator pointed out various discrepancies based upon the report of the Chartered Accountant M/s A.K. Chadha and Company. The Official Liquidator also found that the Ex. Directors of the Company have committed fraud in the formation and promotion of the company in liquidation. Based upon the aforesaid reports, the Official Liquidator filed C.P. No. 26 of 1993 under Section 478 of the Companies Act (hereinafter referred to as 'the Companies Act') read with Rules 249 to 254 and 256 of the Companies (Court) Rules'), for public examination of the Ex Directors of the Company. In proceedings initiated in C.P. No. 26 of1993, this Court, prima facie, formulated an opinion that fraud ha' been committed by the Ex. Directors of the Company and the Ex. Directors were directed to attend the Court on 27.01.1994 for public examination in terms of Section 478 of the Companies Act, vide order dated 18.11.1993. The aforesaid order was challenged in appeal and a Division Bench of this Court vide order dated 15.03.1994 dismissed the appeal. The afore - "said order was followed by another order dated 24.03.1994 whereby the District and Sessions Judge (V), Haryana, was asked to examine the Ex Directors of the Company publicly in terms of Section 478 of the Companies Act and the Ex Directors were directed to appear before the said officer for public examination and the District and Sessions Judge (V), Haryana, was asked to submit his report on conclusion of the examination.
(3.) THE District and Sessions Judge (V), Haryana, submitted his report dated31.3.1995. The concluding part of the report is as under: For the reasons given above, it is fully established that fraud has been committed by the Directors of the Company in the promotion, formation and conduct of the business of the Company as propounded in the application moved by the Official Liquidator.;