SANKAR PRASAD MITRA, J.

( 1 ) THIS is an application by the official liquidator of the Ballygunge Real Property and Building Society Ltd. (in liquidation) for an order that (a) leave be given to the applicant to continue the misfeasance proceedings against the heirs and legal representatives of the respondent No. 1, Dr. Sailendra Nath Sinha, since deceased, and (b) for substitution of the said heirs and legal representatives in the place and stead of the deceased and for other incidental and ancillary reliefs. The official liquidator instituted the misfeasance proceedings on the 2nd January, 1963, under Section 543 (1) of the Companies Act, 1956, which runs thus :" 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, managing agent, secretaries and treasurers, 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 application of the Official Liquidator, of the liquidator, or of any creditor or contributory, made within the time specified in that behalf in Sub-section (2), examine into the conduct of the person, director, managing agent, secretaries and treasurers, manager, liquidator or officer aforesaid, and compel him to repay or restore the money or property or any part thereof respectively, with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust, as the Court thinks just. "

( 2 ) THIS application under Section 543 has to be made, under Subsection (2), within five years, (a) from the date of the order of winding-up, or (b) of the first appointment of the liquidator in the winding-up, or (c) of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer. In the instant case the order for winding-up was made on the 8th January, 1958, and this court was moved under Section 543 (1), as I have said, on the 2nd January, 1963. Sub-section (3) of this section provides that it would apply " notwithstanding that the matter is one for which the person concerned may be criminally liable ".

( 3 ) DR. Sailendra Nath Sinha, the respondent No. 1, was, at all material times, one of the managing directors of the company. He died on the 16th November, 1969, leaving, it is alleged, (1) Shri Partha Sarathi Sinha, his only son, (2) Smt. Maya Bose, and (3) Smt. Mira Mitra, the last two being his married daughters. These are the persons whom the liquidator is seeking to substitute in his place and stead. Needless to point out that if the liquidator fails in this application he will be without any remedy against the estate of the deceased in respect of the alleged misfeasance as a suit against these legal representatives is now barred by limitation. The Bombay High Court in Kathiawar Trading Co. v. Virchand Dipchand, [1893] I. L. R. 18 Bom. 119 held that a liquidator's suit against the directors for recovery of money spent by them in respect of ultra vires transactions was governed by Article 120 of the then Limitation Act corresponding to Article 113 of the Limitation Act, 1963. In fact, the period under Article 120 was six years from the date the right to sue accrued ; but it has now been reduced to three years. The Bombay High Court in Govind Narayan v. Rangvath Gopal, A. I. R. 1930 Bom. 572; I. L. R. 54 Bom. 226 has held that a suit against directors for misfeasance was also governed by Article 120 and the time would run from the date of loss or injury caused by such misfeasance. The Allahabad High Court in In re Union Bank, Allahabad Ltd. , A. I. R. 1925 All.

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