This Company Application by the Official Liquidator (for

short “OL”) on behalf of the company in liquidation i.e., M/s.

Shimbu Imports and Exports Private Limited is filed under

Section 543 of the Companies Act, 1956 r/w. Rule 260 of the

Companies (Court) Rules, 1959 seeking summoning of

respondent Nos.1 and 2 for the purpose of examination and

for direction to them to pay certain amounts, costs etc., to the

Official Liquidator and for other reliefs.

In the application, it is contended that the

aforesaid Company was directed to be wound up vide Order

dated 19.03.1999 passed by this Court in Company Petition

No.85/1998, on which date the respondents were the

Directors of the Company. On 17.11.1999, the Official

Liquidator filed a criminal complaint against the petitioner and

an application in C.A.No.1186/1999 against the respondents

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for non-filing of the Statement of Affairs, pursuant to which this

Court the OL engaged the services of Chartered Accountants,

who have been conducting investigation, which is in progress

and since the prescribed period of limitation of five years to file

an application under Section 543 of the Companies Act was

due to expire, applicant/OL filed the instant application

alleging misfeasance by the respondents and for appropriate

reliefs in this regard.

3.

The respondents have filed their Statement of

Objections inter alia contending that apart from the fact that

the application was barred by limitation and also not

maintainable in law, there has not been any misfeasance

committed by the respondents and that the various allegations

and claims made by the applicant/OL were absolutely false

and the same have been denied by the respondents. In

addition to controverting and denying the allegations and

claims

made

in

the

application,

the

various

facts,

circumstances and documents in support of their defence

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have been pleaded and produced by the respondents, who

sought for dismissal of the petition.

4.

Heard learned counsel for the Official Liquidator

and Dr. Adithya Sondhi, learned Senior counsel for the

respondents and perused the material on record.

5.

The material on record discloses that on behalf of

the applicant-OL, one Ramamurthy N., who is working in the

Office of the OL since 2004 has been examined as PW.1 and

documentary evidence at Ex.P-1 has been marked and he has

been cross-examined by the respondents.

6.

On behalf of the respondents, respondent No.1

has been examined as RW.1 and cross-examined by the

applicant-OL.

7.

Before adverting to the rival contentions, it is

necessary to state that it is well settled that the burden of

proving misfeasance, which is a serious charge of misconduct

or misappropriation or breach of trust rests heavily upon the

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applicant-OL, who has to discharge the said burden by

adducing and placing legal and acceptable pleadings and

evidence in support of the said charge. In the case of the

Official Liquidator Vs. Raghawa Desikachar and others –

(1974) 2 SCC 741, the Apex Court held as under:

“7. The above proceedings clearly show that no

opportunity was given to Respondents 1 to 4 because

proceedings of January 12, 1958 show that as soon

as written statement was filed on December 30, 1957

the District Judge fixed the case for argument. The

proceedings of July 7, 1958 further show that Mr Amin

had brought to the notice of the Official Liquidator that

he should be supplied with materials on which the

Official

Liquidator

would

rely

for

the

alleged

malfeasance on the part of his clients, but no

materials were furnished by the Official Liquidator.

Accordingly on the second hearing after the aforesaid

application, a petition for submitting fresh evidence

and for cross-examining Respondent 5 was made but

it was rejected. The show cause notice was given by

the Official Liquidator on the basis of the public

examination of Respondents 1 to 4. It is only in

answer to the show cause notice that Respondents 1

to 4 could lead evidence and cross-examine

Respo