TMI Blog2012 (11) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the detriment of the applicant-company is not made out, in any event this Court need not go into the question as to whether the claim itself was time-barred or not. - Application of the liquidator rejected. - CO. APPLICATION NO. 1893 OF 2003, CO. PETITION NO. 111 OF 1998 - - - Dated:- 30-5-2012 - A.S. BOPANNA, J. K.S. Mahadevan and Jayaram for the Applicant. S. Devaraj for the Respondent. ORDER 1. The Official Liquidator has filed the instant application under Section 543 of the Companies Act contending that the respondents who are the erstwhile Directors of the Company in liquidation have committed misfeasance and as such, the amount claimed should be recovered from the respondents, Initially the application was filed only insofar as the details of the sundry debtors not having been provided against which a sum of Rs. 25,00.000/- had been shown as outstanding to the Company in liquidation. Subsequently, during the pendency of the application, a Chartered Accountant was appointed to verify the accounts and based on the report filed by the Chartered Accountant, a sum of Rs. 1,57,02,216/- was added to the claim. 2. The respondents have filed their objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount was released to one M/s Associated Precisions Spindles Limited, which is a Sister concern of the Company in liquidation. Since the Directors herein have certain interest in the said M/s Associated Precisions Spindles Limited, it is alleged that there is misfeasance in transferring the money belonging to the Company in liquidation to an establishment in which the Directors are interested. 7. in support of the said claim, which has been put forth in the application, the Chartered Accountant Sri G.V. Sundar has been examined as a witness (PW I) and he has filed his affidavit of evidence. A perusal of the affidavit would indicate the brief reference made to the nature of the claim which has been put forth. The affidavit would indicate that his observation in the report is based on the remarks which had been made by the Statutory Auditors. The report submitted by M/s G.V. Sundar and Company has been produced and marked as Ex.P1, The said report refers to the indication in the annual report of the company which contains the balance sheet and the remarks made therein by the Statutory Auditors. The remarks as contained therein have been extracted in the report. The witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing available as the Provident Fund authorities had taken possession of the premises would indicate that there was an intervening circumstance prior to the date of winding up which had prevented the respondents from providing further details. Though it could be a position that the respondents could have secured further details from the documents which were available as taken possession by the Official Liquidator, that in itself cannot constitute an act of misfeasance to come to the conclusion that the names of the debtors had not been furnished by the respondents with an intention of avoiding recovery and causing loss to the company or on the other hand making gain unto themselves. 9. The question that would arise thereafter is with regard to the claim of Rs. 1,57.02,216/--. The claim in that regard as noticed has been made with regard to the amounts said to have been transferred to a Sister concern of the Company in liquidation. The basis for the same has been taken by that Chartered Accountant from the observation made by the Statutory Auditors in the 18th Annual Report (Ex.P3). In fact, the said report has also been relied by the respondents and marked as Ex.R1. The explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of expenditure of Rs. 15.7 millions incurred by it. However the company has reimbursed an amount of Rs.2 million being the actual expenses incurred by the associate company." The said note would indicate that in fact, at an earlier point, the reversal of Rs. 20,00,000/- had been indicated and the said amount in fact had not been passed on to the Sister Concern, The objection on behalf of the applicant however is that the said document viz., Ex.R2 is not a document which had been either filed along math Statement of Affairs or was filed In the Registrar of Companies and therefore, the same is a got up document. In this regard, it would be relevant to refer to the cross-examination of R.W. 1 wherein no doubt, such suggestion has been put forth to the said witness. But he has a categorically denied that the said copies of the balance sheet had not been filed with the Registrar of Companies and he has maintained that the same has been filed and it is available. When such suggestion has been denied, there is no other material available on record to indicate that in fact the said balance sheet had not been filed before the Registrar of Companies. 12. Further, what is also to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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