2012 (6) TMI 103 - HC - Companies Law

Winding up - misfeasance against the directors of the company-in-liquidation - liability of non executive director - Respondent No. 10 contended that he joined the company as a non-executive director and the purpose of his induction was to maintain liaison between the company, State Bank of India and other financial institutions. - held that - there is no evidence to suggest involvement of this respondent in any act of misappropriation or misapplication of the properties of the company. Therefore, the proceedings against him are dismissed. Loss to company - liability of directors Held that - when on the face of materials on record it can be shown that none except the directors and other officers in control of the company could be responsible for any act of misappropriation, then there is a presumption of guilt against the directors and these officers, which they have to rebut. Non-payment of sales tax - held that - If the Government of Bihar deferred payment of sales tax there is a necessary implication that the amount collected as sales tax could be used for the purpose of the company and the tax paid later. Although such deferment was only up to September 30, 1994, still the official liquidator had the burden to prove that this sales tax amount had been misappropriated by the directors jointly or by some of them or one of them or by any other officer. Non-payment of Provident Fund, ESI and EDLI liabilities. - held that - this amount was collected from the customers or employees and the company could not use these funds. - There is no such explanation for misappropriation of Provident Fund - higher penal interest imposed.

Issues Involved:
1. Misfeasance proceedings against directors and officers of Jamshedpur Cement Ltd.
2. Application for discharge by the tenth respondent (non-executive director).
3. Applications for discharge by the second, sixth, and ninth respondents (former directors).
4. Validity and sufficiency of the auditor's report.
5. Responsibility and liability of directors for misappropriation and misapplication of company funds.

Issue-wise Detailed Analysis:

1. Misfeasance Proceedings Against Directors and Officers:
The court initiated misfeasance proceedings against ten respondents, all directors or responsible officers of Jamshedpur Cement Ltd., based on an auditor's report that alleged misapplication and misappropriation of company funds amounting to Rs. 1,52,07,388. The proceedings aimed at holding these individuals accountable for their roles in the mismanagement of the company's assets.

2. Application for Discharge by the Tenth Respondent (Non-Executive Director):
The tenth respondent, a non-executive director, applied for discharge from the misfeasance proceedings on two grounds:
- He had no responsibility for the company's business conduct and only facilitated negotiations between the company and financial institutions.
- The judge's summons and points of claim lacked particulars regarding his involvement in misappropriation and misapplication of funds.

The court found that the tenth respondent was indeed a non-executive director, resigned well before the company was wound up, and there was no evidence of his involvement in misappropriation. Consequently, the proceedings against him were dismissed.

3. Applications for Discharge by the Second, Sixth, and Ninth Respondents (Former Directors):
The second, sixth, and ninth respondents also sought discharge from the misfeasance proceedings. The court noted that the points of claim were a mere reproduction of the auditor's report and lacked specific details of misappropriation or misapplication of assets by these respondents. The court emphasized that liability must be clearly identified and justified, and the burden of proving misfeasance rested on the official liquidator.

4. Validity and Sufficiency of the Auditor's Report:
The court criticized the auditor's report for its lack of specific details and directed the auditor to file a supplementary report. The supplementary report did not add any new information. The court highlighted that the report failed to specify the period for which sales tax was not deposited, how the collection was made, and how it was utilized.

5. Responsibility and Liability of Directors for Misappropriation and Misapplication of Company Funds:
The court applied principles from various legal precedents, emphasizing the need for detailed allegations and proof of misfeasance. It was noted that directors and officers do not automatically become liable for all losses suffered by the company. Specific acts of misappropriation or misapplication must be identified and linked to the individuals responsible.

The court found no evidence of involvement by the second, sixth, and ninth respondents in the alleged acts of misappropriation, except for the sum of Rs. 1,33,144 related to Provident Fund, ESI, and EDLI liabilities. The court held these respondents liable for this amount due to the lack of explanation and imposed a high penal rate of interest, computing the total dues with interest at Rs. 5 lakhs.

Conclusion:
The court dismissed the misfeasance proceedings against the tenth respondent and most claims against the second, sixth, and ninth respondents due to insufficient details and lack of evidence. However, it held the second, sixth, and ninth respondents liable for misappropriation of Provident Fund and other dues, directing them to pay Rs. 5 lakhs with interest. The applications were allowed to this extent, and no costs were ordered.

← Previous Next →