9911796707
Advanced Search 
TMI Blog2010 (11) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation for the loss caused by them to the company in liquidation to the extent of Rs.2,36,49,643 and the future claims from the creditors with interest at the rate of 12 per cent. per annum thereon from the date of winding up, viz., September 17, 2003, till the date of recovery of the entire amount ; to declare the liabilities of respondents Nos. 1 to 4 for the said amount and the future claims of the creditors together with interest thereon shall constitute the first charge on the property and effects in their possession ; and to direct payment of costs. 2. By an order dated September 17, 2003, passed in C. P. No. 6 of 2001, M/s. Indus Marketing Ltd., was wound up and the official liquidator was directed to take charge of the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belonging to the company under liquidation by public auction and realised an amount of Rs. 1,03,000. After the sale consideration was received from the auction purchaser, as per the order of this court dated April 17, 2008, an official from the office of the official liquidator had handed over the vacant possession from the registered office to Mrs. Kothai Rajan, the owner of the premises on April 22, 2008. 5. It is stated that the statement of affairs was filed by the ex-directors belatedly, after the delay of 1,033 days. On going through the statement of affairs as on March 31, 1993, it is revealed that the stock-in-trade has not been valued, while as per the audited balance-sheet as on March 31, 1993, the stock-in-trade has been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have failed to furnish the amount regarding stock-in-trade to the tune of Rs. 14,07,045 and defaulted in submission of proper explanation ; that while the amount due from the trade debtors as per the balance-sheet as on March 31, 1993, was given as Rs. 5,57,212.57, it is shown as " nil" in the statement of affairs and there are no details of names, address and other particulars ; that there is a difference of Rs. 2,20,90,829 in the matter of dues towards unsecured creditors shown in the statement of affairs and the balance-sheet as on March 31, 1993 and there is no clarification given by the ex-directors for the said excess amount shown in the statement of affairs and therefore, it should be presumed to be an amount accrued due to the mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributable to the directors with any motive. 14. It is stated that the company was originally engaged in the business of marketing and distribution of various automation, consumer durables, office equipment and telecommunication products and the business was declining over the years and the company was selling its existing stocks and did not have the wherewithal to purchase new stocks and the unsold stocks had negligible realisable value at the time of winding up. It is also stated that since the financial position of the company was low, it had to borrow amounts. Therefore, the list of unsecured creditors increased over the last ten years and the debtors of the company declined over the years. 15. As regards the motor vehicle, it is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge the dues to Bank of Baroda and as stated in the original counter affidavit, the Union Bank of India has also been satisfied and the account has been closed in the month of June, 2006. 19. It is also stated that the first respondent has given collateral security to the Union Bank of India and he has borrowed money from his family members and settled with the Union Bank of India as a one-time settlement and he has also enclosed the said proceedings from the Union Bank of India accepting the one-time settlement, apart from producing a letter from the Bank of Baroda stating about the clearing of loan. The Bank of Baroda in the letter dated January 20, 1999, has stated that the company under liquidation has discharged its dues in ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The charges in these sort of cases have to be specific and it must be brought to the notice of this court that the term misfeasance or breach of trust is certainly relatable not only to intentional act of the directors, but also to the deliberate conduct of the ex-directors which has resulted in the loss to the company under liquidation, for the rule actus non facit reum nisi mens sit rea is applicable in these cases of misfeasance. 23. This court in Official Liquidator v. V. Selvaraj [2011] 106 SCL 56 (Mad.), while construing sections 542 and 543 of the Companies Act, 1956, has held as follows (page 185) : " . . . it is clear that when an application under sections 542 and 543 of the Companies Act is made relating to the allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
