2009 (7) TMI 784 - HC - Companies Law

Winding up - liquidator prayed this court to direct the respondent to remit an amount of ₹ 80,76,906 with interest at 12 per cent per annum to the credit of the company in liquidation - Held that - In the absence of any clinching evidence to show that it is the company or the respondent as its managing director who resorted to illegal mining and extracted black granite of considerable value, it is not possible to draw any inference that the respondent is liable for the amount claimed. Therefore, the application under section 468 of the Companies Act is not maintainable. However, if the liquidator is able to get the information regarding those persons who illegally conducted mining operations in the lands belonging to the company in liquidation, it is always open to the liquidator to file appropriate application against those persons and claim the money.

Issues Involved:
1. Whether the respondent is liable to remit Rs. 80,76,906 to the company in liquidation.
2. Whether the application under section 468 of the Companies Act is maintainable.
3. Evaluation of illegal mining activities and their impact on the company's assets.

Detailed Analysis:

1. Liability of the Respondent:
The official liquidator filed an application under section 468 of the Companies Act, 1956, seeking a direction for the respondent, the ex-managing director, to remit Rs. 80,76,906 with interest to the company in liquidation. The liquidator alleged that the respondent failed to disclose certain lands and allowed illegal quarrying by third parties, thus making him liable for the claimed amount. The respondent denied any connection with the illegal mining activities and argued that there was no material evidence to show his liability.

2. Maintainability of the Application under Section 468:
Section 468 enables the court to direct any contributory, trustee, receiver, banker, agent, officer, or other employees of the company to pay any money in their custody or control to which the company is prima facie entitled. The liquidator must demonstrate that the company's money is in the custody or control of such persons. The court noted that the liquidator had not taken steps to ascertain the value of the property or money in the respondent's custody before or immediately after the winding-up order. The court referenced several cases, including Liquidator, Janda Rubber Works Ltd. v. Collector of Bombay and Deputy Custodian of Evacuee Property, to emphasize that the jurisdiction of the company court does not extend to enforcing orders against third parties not mentioned in section 468.

3. Evaluation of Illegal Mining Activities:
The Assistant Director of Mines and Geology inspected the company lands and reported illegal mining activities. The value of illegally mined minerals was estimated at Rs. 32,17,060, and legally mined minerals at Rs. 98,93,287. However, the report did not indicate that the illegal mining was conducted by the company or its officials. The court found no evidence that the respondent misappropriated the amount claimed. The report showed that third parties, such as K. Prabhakar and M/s. Unique Enterprises, had legal leases and conducted mining operations. The court concluded that the liquidator could file an application against those who illegally conducted mining operations if sufficient information is obtained.

Conclusion:
The court dismissed the application under section 468 of the Companies Act, finding it devoid of merit. The liquidator did not provide sufficient evidence to show that the respondent was liable for the claimed amount. The court suggested that the liquidator could pursue claims against third parties involved in illegal mining operations if adequate information is available.

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