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2018 Supreme(Raj) 184
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SANJEEV PRAKASH SHARMA, J.
Official Liquidator of M/s Kalyan Sundram Cement Industries Ltd. - Petitioner
Versus
Shri Sanjay Modi S/o Late Shri K.M. Modi and Ors. - Respondents
S.B. Company Application No. 26 of 1999
Decided On : 15-02-2018
For the Petitioners: Mr. Gaurav Sharma, Mr. US Patole
For the Respondents: Mr. Sunil Nath, Mr. Alok Garg, Ms. Priyanka Tiwari
Headnote:
Companies Act, 1956 - Section 543 , 198(4) , 309(3) - State Financial Corporation Act, - Section 29 - Restore such money and properties – Liquidation – Compensation - Misapplication, retention, misfeasance - In support thereof, the Official Liquidator relies photo copy of the telephone bill (Exhibit-2) for a sum of Rs.52,844/- in respect of telephone no.4360214 installed at the Company’s Office at Mumbai. He also relies on another bill (Exhibit-3) of a sum of Rs.11,099/- received from Maha Nagar Telephone Nigam Limited, Mumbai to the Official Liquidator. It is his submission that respondent-Sanjay Modi was required to pay the aforesaid bills and after winding up order, the said Managing Director could not have used the telephone belonging to the Company; and did not get it disconnected. Information in this regard was also not given. – Held, The amount, as ascertained above, shall be recoverable from respondent No.1-Mr. Sanjay Modi as well as from his family members from all assignees etc. and their properties/assets which shall be attached by the Official Liquidator for recovery and the Official Liquidator is empowered to take all steps for the said purpose of recovering the said amount and if it is found that he has sold or disbursed his personal properties in any manner during the pendency of the proceedings before the BIFR or thereafter, the same be also recovered from the subsequent purchasers or assignees etc. - Application is disposed off
1. Instant company application has been filed by the Official Liquidator under Section 543 of the Companies Act, 1956 seeking following relief:-
“(i) Examine into the conduct of the respondents No. 1 & 2 and compel them to restore such money and properties of the Company in liquidation as may be thought fit and proper by this Hon’ble Court alongwith interest and/or direct the respondents to give compensation as may be ascertained in respect of the misapplication, retention, misfeasance as the Court may think just.
(ii) Any other relief as may be deemed fit & proper by this Hon’ble Court.”
2. This Court vide order dated 24/05/2002 framed following issues:-
(i) Whether the respondent No. 1 was using the telephone of the Company in liquidation after the order of winding up dated 12.08.1994 and thereby committed an act of misfeasance (Applicant)
(ii) Whether the respondent No.1 retained the properties of the company after winding up order dated 12.08.94 unauthorizedly and liable to be refunded the same or their value alongwith interest ? (Applicant)
(iii) Whether the company in liquidation suffered loss on account of not surrendering the mining lease by respondent No.1 and 2 to the O.L. and thus accountable ? (Applicant)
(iv) Whether the respondents are liable to give account of the money received by them in advance Rs.50,61,300/- from Government of Rajasthan for supply of cement and whether they are liable to make payment of this amount alongwith interest ? (Applicant)
(v) Whether the respondents are accountable for not recovering the amount from debtors and the persons whom the loans and advance were to be recovered ? (Applicant)
(vi) Whether the respondents are liable to refund the remuneration received by them without approval of the Central Government ? (Applicant)
(vii) Whether present application and any enquiry thereon are barred by limitation ? (Respondents)
(viii) Whether present application under Section 543 is maintainable though all movable and immovable assets of the Company stand taken over under Section 29 of States Financial Corporations Act by the Rajasthan Financial Corporation prior to winding up orders ? (Respondents)
(ix) Whether enquiry under Section 543 of the Company Act, 1956 is discretionary and deserves to be declined on account of long lapse of time between the date of the alleged incidents and the date of filing of the application ? (Respondents)
(x) Whether requisite prior sanction was obtained before filing present application and if not what is the consequence ? (Respondents)
(xi) Whether unrelated accusations and persons can be clubbed together in an omnibus application under Section 543 of Companies Act ? (Respondents)
(xii) Whether the application is not maintainable for not being in prescribed form ? (Respondents) “
3. Statements of Mr. RC Mishra, Official Liquidator and Mr. NC Jain, Chartered Accountant were recorded and they were cross-examined, whereafter counter affidavit was filed by Mr. Sanjay Modi on 02/05/2003 and his statement was recorded on 19/09/2011.
4. Learned counsel for the Official Liquidator has submitted general arguments relating to all the issues and has addressed on the charges which have been imbibed in the issues. In support thereof, the Official Liquidator filed an affidavit and placed on record the documents marked as Exhibits 1 to 5. No document was filed by the respondent in his counter affidavit.
5. Relying on the Chartered Accountant’s report, the Official Liquidator submits that after he had taken charge of the assets of the Company on 07/01/1997 and having received report of the Chartered Accountant on 04/08/1999, it was found that the respondent-Sanjay Modi had used telephone of the Company in liquidation after the order of winding up dated 12/08/1994 and thereby committed misfeasance.
5.1 In support thereof, the Official Liquidator relies photo copy of the telephone bill dated 01/08/1995 (Exhibit-2) for a sum of Rs.52,844/- in respect of telephone no.4360214 i
