2010 (11) TMI 844 - HC - Companies Law

Application under sections 542 and 543 of the Companies Act, 1956 Held that - In the case on hand, the respondents have given explanation about the clearing of dues with the two secured creditors and the same is borne out on records. As regards the vehicle, the respondents have given a reasonable explanation stating that even though the vehicle was shown at a depreciated value of ₹ 1,67,816 as on March 31, 1993, due to wear and tear over the past ten years, the value of the vehicle declined and therefore, the same was ultimately sold. This, in my considered view, cannot be a reason for the purpose of invoking sections 542 and 543 of the Companies Act, 1956. Having regard to the seriousness of the provisions and there being no material against the ex-directors, the allegations stand unproved. This application does not merit acceptance and therefore, the same stands dismissed.

Issues Involved:
1. Personal liability of respondents for the debts and liabilities of the company under liquidation.
2. Examination of respondents' conduct under sections 542 and 543(1) of the Companies Act, 1956.
3. Joint and several liability to contribute to the assets of the company by way of compensation.
4. Declaration of liabilities and future claims of creditors as the first charge on the respondents' property.
5. Direction for payment of costs.

Detailed Analysis:

1. Personal Liability of Respondents for Debts and Liabilities:
The official liquidator sought a declaration that the respondents are personally liable for the company's debts and liabilities under liquidation. The company, M/s. Indus Marketing Ltd., was wound up on September 17, 2003, and the official liquidator was directed to take charge of the company's assets and effects. The company had two secured creditors, the Bank of Baroda and the Union Bank of India, and the liquidation was initiated by M/s. Sundaram Finance Ltd. Despite an interim stay on the winding-up order, the appeal was dismissed due to non-compliance with the condition to deposit one-third of the amount due.

2. Examination of Respondents' Conduct Under Sections 542 and 543(1) of the Companies Act, 1956:
The official liquidator alleged that the ex-directors failed to provide accurate financial details, including discrepancies in the stock-in-trade valuation, unsecured creditors' amounts, and sundry debtors' details. The liquidator argued that these discrepancies indicated mismanagement and maladministration, making the ex-directors liable for the losses incurred by the company.

3. Joint and Several Liability to Contribute to the Assets of the Company by Way of Compensation:
The liquidator sought an order that the respondents be jointly and severally liable to contribute Rs. 2,36,49,643 to the company's assets as compensation for the loss caused. The ex-directors were also accused of not handing over a vehicle listed as a fixed asset in the balance sheet.

4. Declaration of Liabilities and Future Claims of Creditors as the First Charge on the Respondents' Property:
The liquidator requested that the liabilities of the respondents and future claims of creditors, along with interest, be declared as the first charge on the respondents' property and effects.

5. Direction for Payment of Costs:
The liquidator also sought a direction for the respondents to pay the costs incurred during the liquidation process.

Court's Findings:

Mens Rea Requirement:
The court emphasized that under sections 542 and 543 of the Companies Act, 1956, liability for misfeasance or breach of trust requires proof of intentional acts or deliberate conduct that resulted in loss to the company. The court referenced the principle of "actus non facit reum nisi mens sit rea," meaning an act does not make a person guilty unless there is a guilty mind.

Lack of Specific Allegations and Proof:
The court found that the liquidator did not provide specific instances of intentional misconduct or deliberate actions by the ex-directors that led to the company's losses. The court cited a previous judgment, Official Liquidator v. V. Selvaraj, which held that allegations of fraud or breach of trust must be specifically pleaded and proved.

Explanations Provided by Respondents:
The respondents explained the discrepancies in financial details as arising from normal business operations over ten years. They stated that the company had been selling its existing stocks and borrowing funds, leading to changes in the values of assets and liabilities. The respondents also provided evidence of settling dues with secured creditors and explained the sale of the vehicle due to wear and tear.

Conclusion:
The court concluded that there was no material evidence to substantiate the allegations of misfeasance or breach of trust against the ex-directors. The application by the official liquidator was dismissed due to the lack of proof of intentional misconduct or deliberate conduct causing loss to the company. The court did not find any basis for holding the respondents personally liable for the company's debts and liabilities or for ordering them to contribute to the company's assets.

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