1. - By way of judge's summons taken out under section 543 of the Companies Act, 1956 (for short "the Act") the official liquidator has prayed for an order :

(i) the non-petitioners be held to be liable jointly and severally and they be directed to restore immediately the money and other properties, assets, actionable claims of the company in liquidation, as appearing in the balance-sheet dated June 30, 1981, amounting to Rs. 11,96,091/- forthwith to the official liquidator along with interest and other relief in the form of damages as the Hon'ble court may deem just, proper and expedient in the facts and circumstances of the present case ;

(ii) the non-petitioners be further directed to contribute such sum to the assets of the company in liquidation by way of compensation as may be thought fit and proper in the facts and circumstances of the present case ;

(iii) the non petitioners be further directed to immediately restore to the official liquidator the properties and assets of the company in liquidation which the company may have come into possession of the same during the conduct of the business of the company after June 30, 1981, till the date of passing of the winding up order by this court, i.e., May 5, 1989.

2. Contextual facts depict that M/s. Subh Laxmi Savings and Finance Private Limited having its head office at Gopalji Ka Rasta, Johari Bazar, Jaipur and branch offices at Naya Bazar, Ajmer, Gumanpura, Choraha Kota, Jalori Gate, Jodhpur and Alakh Sagar Road, Bikaner was directed to be wound up vide order dated May 5, 1989. The non-petitioners Brij Mohan Gogna and Dhanna Lal Sharma were directors of the company. The official liquidator was required to take all proceedings for winding up as per provisions of the Act to take charge of all the properties and assets of the said company. The ex directors of the company in liquidation retained all the assets movable and immovable properties of the company in liquidation. The non-petitioners are guilty of misfeasance and breach of trust in relation to company in liquidation. Though the non-petitioners are criminally liable for the offences committed by them under various sections of the Act including sections 538 and 539, however the present application under section 543 of the Act is being filed within the limitation as prescribed.

3. The Registrar of Companies had filed winding up petition alleging that the company is irregular in filing its statutory returns, balance-sheets and such the company and its directors are acting in contravention of the provisions of the Act and the company is commercially insolvent and is unable to pay-off its debts in full. Shri Om Prakash Agarwal, UDC and Shri Heera Ballabh, LDC were appointed under section 457(2)(v) of the Act to take over the possession of the company, they went at the registered address of the company and gave a report that company has gone away five to six years back after vacating the premises and the premises are in possession of one Shri Shyam Printers (Press). There was no assets of the company. The statutory notices sent to non-petitioners for submitting statement of affairs of the company in liquidation received back undelivered. Ultimately on a notice, Shri Dhanna Lal (non-petitioner No. 2) submitted his reply on June 27, 1991, that he resigned from the said company from October 1, 1979, nothing remained in his possession and there is no due against him of the company. The resignation of non-petitioner No. 2 is not according to law and there is no evidence of acceptance of the same. No return was submitted by the directors in Form No. 32, nor is there any endorsement of such resignation. Therefore, the story of resignation is after thought and has no value and consequence. The ex-directors have not handed over record, account books, details of bank accounts and assets or properties of the company in liquidation. The application under section 457(1) of the Act has already been filed on November 14, 1991.

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