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TMI Blog2013 (12) TMI 1756X X X X Extracts X X X X X X X X Extracts X X X X ..... on 543(1) of the Companies Act, 1956 (Hereinafter referred to as the 'Act', for brevity), read with Rule 260 of the Companies (Court) Rules, 1959 is filed in the following background:- That M/s Rekha Cements and Chemicals Limited, the company in liquidation was ordered to be wound up on 2.4.2002 in Company Petition No.105/1995. The Official Liquidator was appointed as the liquidator of the company. The present application is filed within the time prescribed under Section 543(1) of the Act. The company was incorporated in the year 1985 as a private limited company with its registered office at Gulbarga. The authorised share capital of the company in liquidation was Rs. 5,00,00,000/- divided into 5,00,000 equity shares of Rs. 10/- each and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the ex- directors of the company. Secondly, it is claimed that as per the balance sheet, there were loans and advances mentioned totalling to Rs. 11,00,694.37 and that the respondents had failed to remit the amount and furnish full details with necessary supporting documents. It is also noticed that a general purpose loan was obtained by respondent no.1 in violation of Section 295 of the Companies Act, 1956. This was specifically pointed out by the auditors in their report dated 2.9.2000 and therefore, the Official Liquidator claims that he is not in a position to recover the said amount. Thirdly, the cash and bank balances were mentioned as Rs. 14,29,403.23 and the respondents had failed to remit the said amount and hence they are l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned, it is contended that respondent no.1 had furnished the details of loans and advances in the Statement of Affairs as on the date of the winding up and it was only in a sum of Rs. 2,92,169/-, which was furnished as per Schedule-F to the Balance Sheet. This has not been taken into consideration by the applicant. The respondent no.1 claims to have repaid the entire loans and advances borrowed by him to the company in a sum of Rs. 2.97 lakh during the year 2000-01. And as on the date of the winding up order, the company was in fact, indebted to the first respondent to the tune of Rs. 3,00,000/- and this amount had been deposited at the time the matter was pending before the Board of Industrial and Financial Reconstruction (BIFR). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the basis of the calculation would not be sufficient in the absence of production of the complete books and records of the company. The mere denial of the application would not advance the case of the respondents and that the defects in the statement of affairs are not cured in the absence of the same being substantiated with books of records and other materials. 7. In the light of the above rival contentions, and on the basis of the evidence that is tendered, insofar as the first item of claim is concerned, as righty pointed out by the learned Counsel for the respondent, the difference between the balance sheet of the year 31.3.2000 and the valuation report of the KSSIDC being the basis on which the balance of Rs. 4.95 Crore is claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to the early period of incorporation of the company and absence of any receipts in respect of the same cannot be found fault with. 8. In the above facts and circumstances, it cannot be said that the application is substantiated as the very claim is apparently on a surmise that the amounts are to be accounted for. As per the language of Section 543 of the Companies Act,1956, the allegations of misapplication, misfeasance or breach of trust would have to be substantiated with specific details and the allegations are to be of a nature which can be met by the directors and answered specifically. The very claim being on surmises, it cannot be said that the respondents were obliged to explain the same as they did not relate to the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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