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TMI Blog1991 (12) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... ages against the delinquent director of the company for whose misfeasance and breach of trust, the company lost its assets and was led to a situation for its liquidation. The admitted facts are that the company was incorporated on March 19, 1956, when its head office was at Tulsipur, Cuttack. Subsequently, the office was shifted to other premises in the same locality. There was a proceeding for winding up of the company and the company was wound up with effect from April 9, 1975. This application under section 543 of the Companies Act was filed on April 9, 1981. It has been contended by respondent No. 8 that this application is barred by limitation. In support of the aforesaid contention, it has been urged that the limitation for filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an application under section 543 of the Act. Section 543 of the Act is quoted below for ready reference: "543. Power of court to assess damages against delinquent directors, etc.-(1) If in the course of winding up a company, it appears that any person who has taken part in the promotion or formation of the company, or any past or present director, manager, liquidator or officer of the company- (a)has misapplied, or retained, or become liable or accountable for, any money or property of the company; or (b)has been guilty of any misfeasance or breach of trust in relation to the company; the court may, on the application of the official liquidator, or the liquidator, or of any creditor or contributory, made within the time specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liquidator or of any creditor or contributory if made within the period of limitation specified in that behalf in sub-section (2) of the said section. Sub-section (2) of section 543 prescribes a period of five years for such an application from the date of the order for winding-up, or of the first appointment of the liquidator in winding up, or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer. The additional period of one year under section 458A would be available for any suit or application in the name and on behalf of the company. It is, therefore, necessary to examine whether the application under section 543 of the Act filed by the official liquidator is an application in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me rights as the company itself would have enforced by way of suits, although the application is meant for the benefit of the company. In making an application under section 543, the official liquidator has not exercised the powers conferred on him by section 457, subsection (1), but he exercised the powers which section 543 itself confers on him. Rule 26u of the Companies (Court) Rules, 1959, under sub-rule (1) requires summons of section 543 to be issued in Form No. 121. In the said form the official liquidator of the company or a creditor or a contributor of the said company and not the company itself is set out to be the applicant. Thus, it is the official liquidator who is authorised under section 543 to apply in his own behalf for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of one year limitation whereas any creditor or contributory would not be entitled to such benefit. Mr. Sinha, learned counsel appearing for the applicant, has relied on the provisions contained in section 457 of the Act which defines the powers of the liquidator. But the general power vested with the official liquidator under the said section is distinct from the special powers conferred on him by section 543 of the Act. This aspect of the matter has also been dealt with in the order passed in Company Act Case No. 1 of 1982. A decision of the Calcutta High Court in Modi Vanaspati Manufacturing Company v. Katihar Jute Mills (Pvt.) Ltd., AIR 1969 Cal 496, which has been relied upon is of no relevance so far as the point under consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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