9911796707
TMI Blog2010 (3) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant-company, respondent Nos. 3, 7 and 8 herein have transferred the property and business of the company under liquidation; that under the circumstances, they are liable under section 536 of the Companies Act, 1956; that the conduct of these respondents also amounts to misfeasance; that it becomes necessary that the corporate veil of the appellant-company has to be lifted to find out the fraud, and hence, the above applications were filed for a direction against respondent Nos. 3 to 8 therein to file statement of affairs, to take cognizance of the offence under section 454(5) of the Companies Act against respondent Nos. 3 to 8 and to direct the Official Liquidator to examine the conduct of affairs of the company under liquidation by respondent Nos. 3 to 8 and file a report on the misfeasance and also for an interim injunction against the appellant-company from alienating, transferring or disposing of any assets or movables or immovables of the appellant pending decision in the above applications. 3. The other side was given an opportunity to file counter. 4. The learned Single Judge on enquiry, has directed the Official Liquidator to investigate about the affairs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by an order of the court in C.A. No. 246 of 2008, dated 17-3-2008. 9. This court paid its anxious consideration on the submissions made. 10. As could be seen above, while disposing of all the applications in Blaiklock Compass World Transport (HK) Ltd.'s case (supra), the company court has made the following order : "In such circumstances, I direct the Official Liquidator of this Court to investigate about the affairs of the second respondent-company, viz., M/s. Scanwell Logistics (P.) Ltd., especially with reference to the object of the said company and the transactions which have taken place from the date of its incorporation, viz., May 28, 2004, till date and file a report to enable this Court to pass final orders in the above applications. The petitioning creditor/applicant shall deposit an amount of Rs. 10,000 (rupees ten thousand only) with the Official Liquidator towards expenses relating to the said investigation within one week from this date. The Official Liquidator, after giving notice to the directors of the second respondent-company including the three ex-directors of the first respondent-company under liquidation and also after giving opportunity to the petitioni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Official Liquidator. 13. Before seeking the relief, the Official Liquidator has filed a report before the Court. From the perusal of the report, it is noticed that out of the directors, two directors, namely, Mr. S. Ramesh and V. Babu, put forth the statement of affairs though belatedly, and on verification, the Official Liquidator noticed the bank balance what was indicated in the statement of affairs was not available with the bank, and the cash balance mentioned in the statement was also not available. Though the directors gave the statement to the effect that a sum of Rs. 1,98,56,336 was available with the trade debtors and recoverable, but they did not furnish any particulars in that regard. Though a statement was given to the effect that furniture and fittings were worth Rs. 7,00,000 they were sold, and only a sum of Rs. 1,62,300 could be realised. That apart, though it was stated that a sum of Rs. 2,00,95,123.09 was due from various parties, no documents were furnished, and hence, the Official Liquidator has pointed out that all the above would be indicative of the mismanagement and also maladministration of the company. 14. The order under challenge came to be passed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of all the above, the contention put forth by the appellant's side that subsequent to the termination of the agency of the company under liquidation, the principal company had started its own subsidiary in India in which for the purpose of constitution, three of the ex- directors of the company under liquidation were added as directors cannot be accepted. Though it is contended that the company under liquidation and the appellant-company are different entities, the available materials would indicate otherwise. No doubt, all the above would create a suspicion on the conduct of the ex-directors whether the second company, namely, the appellant herein, would have been constituted with a fraudulent design of causing hardship to the creditors. Once the respondents were able to show that there was a transfer of the advance given by the company under liquidation pursuant to a letter given by that company to the appellant-company, it can be taken as a prima facie proof of transfer of a part of the assets of the company under liquidation in favour of the appellant-company. 16. The contention put forth by learned counsel for the appellant that as far as the appellant-company was conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended by learned senior counsel for the first respondent that if an investigation has got to be made as to the affairs of the appellant-company in order to find out the truth, it is necessary that the investigation should be done for the subsequent period also. So far as the second contention that opportunity was not necessary to the petitioning creditor is concerned, learned senior counsel would urge that what was all to be done by the petitioning creditor at the time of investigation was only an assistance and nothing more. 20. After hearing counsel on either side, this Court is of the considered opinion that as far as the first contention is concerned, the order of the learned Single Judge that the investigation has got to be done till the date of the order has got to be affirmed since, in the considered opinion of the court, if the investigation is done for the subsequent period also, it would be possible to find out and appreciate the merits of the contention on either side as to whether there was any illegality or fraud committed. 21. As far as the second contention is concerned, this Court is of the considered opinion that once there was a direction issued to the Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
