TMI Blog1991 (12) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... section 543 of the Companies Act, 1956, praying for making all necessary enquiries to be made and to assess the damages 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be necessary for examining whether the extended period of one year would be available to an official liquidator 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the aforesaid persons. Action under the said section can be taken by the court only on the application of the official liquidator or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 543 of the Act undoubtedly conferred a new remedial right on the official liquidator and others named in that section for enforcement of some 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 compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dator must be deemed to be in the name and on behalf of the company, the result would be that the official liquidator would be entitled to the additional period 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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