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Official Liquidator of Triveni Greenery Finlease (India) Limited (in Liquidation) Versus Dev Jeet Nag & Others

2016 (9) TMI 1082 - RAJASTHAN HIGH COURT

Default of respondents directors of the company in liquidation - commission or omission and/ or negligence on the part of the directors - winding up proceedings - Held that:- The case as laid is based on the report dated 6-10-2008 prepared by the Chartered Accountant on the basis of last balance sheet as on 31-3- 1996 and the last annual return dated 30-9-1996. The said report duly proved in court by the Official Liquidator's evidence indicates that the respondent directors had acted totally aga .....

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cted in breach of trust to cause loss to the company in liquidation to their corresponding enrichment/ benefits. The conduct of the respondent directors clearly fall within the definition of misfeasance, malfeasance and breach of trust. Further, from the evidence on record it can be gathered that the deeds and acts of the respondent ex-directors/others were of a nature not expected of prudent persons engaged in the business. - On consideration of the pleadings and evidence on record, I am of .....

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Petition No. 31/1998) - Dated:- 29-7-2016 - Alok Sharma, J. For the Official Liquidator : Gaurav Sharma For the Respondent : None ORDER The matter has come up on an application under Section 543 of the Companies Act 1956 (hereinafter "the Act of 1956") read with Rule 9 of the Companies (Court) Rules, 1959 (hereinafter "the Rules of 1959"). M/s. Triveni Greenery Finlease (India) Limited (in liquidation) incorporated on 28-7-1992 with the Registrar of Companies, Jaipur Rajasth .....

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the depositors. The company in liquidation had an authorised share capital of ₹ 15,00,000/- divided into ₹ 1,50,000/- equity share of ₹ 10/- each and issue subscribed and paid up capital of the company was ₹ 2,10,000/- divided into ₹ 21,000/- equity shares of ₹ 10/- each fully paid up. After the winding up order dated 17-10-2003, the respondent directors did not file statement of affairs. The Official Liquidator vide letter dated 14-8-2008 addressing to Shri N .....

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Yogesh Sharma were directors of the company in liquidation. In his report dated 6-10-2008, the Chartered Accountant found that furniture and fixtures of ₹ 1,71,840/- official equipments of ₹ 1,13,740/- and vehicles of ₹ 81,119/- had not been handed over by the respondent directors to the Official Liquidator, nor any amount or value thereof in lien was deposited by them. The fixed asset one motor car purchased for ₹ 95,000/- in the name of K.K. Purohit, Sirohi on behalf of .....

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ount ₹ 19,95,243/-. It was further found that as per balance sheet all advances were "good for recovery", therefore, it could be presumed that the entire amount due from loan and advances were realised outside the books of the company. It was further found that ₹ 7,00,570/- were cash in hand and ₹ 25,81,627/- were in bank aggregating to ₹ 32,82,198/- which had not been hand over to the official liquidator. Neither the statement of affairs nor account books nor a .....

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; 32,000/- deposit with P&T department, ₹ 6,939/- as TDS and ₹ 96,400/- as security deposit and hire purchase stock of ₹ 30,44,558/-) due against housing finance and suspense balance was ₹ 10,000/-. The Chartered Accountant found that prepaid expenses ₹ 4,950/- and ₹ 90,000/- for stationary has no realizable value. However out of current assets of ₹ 37,88,573/- advances, an amount of ₹ 31,85,397/- was realized by respondent directors as the sai .....

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ks and the records nor they filed balance sheet after 31-3-1996. Nor the annual return was filed after 30-9-1996. The respondent directors also did not file statement of affairs as required under Section 454 of the Act of 1956. The directors as per the last balance sheet of 31-3-1996 had collected deposits of ₹ 1,35,94,826/- under various deposit schemes and did not repay the same. While the capital base of the company in liquidation was only ₹ 2,10,000/-. Thus the respondent directo .....

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ts directors are liable for misfeasance, wrongful retention of money and property of the company in liquidation, and breach of trust under Section 543 of the Act of 1956. Consequently the respondent directors be held liable and a direction be issued that the amount of ₹ 1,02,57,288/- along with interest thereon be recovered from the respondent directors. Notices were issued to the respondent directors on 31-10- 2008 on several occasions both through normal process and registered post, but .....

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davit in evidence reiterated the allegations made in the application under Section 543 of the Act of 1956 and supported the same in his examination in chief appearing as PW.1. The Chartered Accountant Mr. N.C. Jain Chartered Accountant also filed his affidavit and examined as Pw.2. He supported his report and the allegations levelled against the respondent directors. No defence has emanated from the respondents. It has been prayed that in the circumstances, that the application under section 543 .....

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of the company in liquidation but also contravened the provisions of directions 10A, 14, 15 and 16 of the Residuary Non Banking Companies (RBI) Directions, 1987 and caused a loss to the company in liquidation to an amount of ₹ 1,02,57,288/-. Section 543 of the Act of 1956 provides that where in the course of winding up of 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, managing agent, secretaries or offi .....

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hava Desikachar [(1975)45 Com. Cases 136] held that the application under Section 543 of the Act of 1956 should contain a detailed narration of the acts of commission and omission on the part of the directors quantifying the loss to the company arising out of such acts or omissions". In the case of Security and Finance Private Limited Vs. B.K. Bedi [1991 (71) Com Cases 101 Delhi] it was held that the court is to examine the conduct of the directors or officers and to pass an order against t .....

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uld be pointed out and proved establishing that the act of commission or omission or negligence was with the knowledge and intent to cause loss to the company. In the case of Official Liquidator Vs. D.D. Sinha [SB Company Application No.5/1995 decided by the Rajasthan High Court] it was held that the allegation of misfeasance and misapplication has to be specifically pleaded with material particulars against each of the directors/ erstwhile directors of the company. The state of law having been .....

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