1978 (8) TMI 161 - HC - Companies Law

Issues Involved:

1. Whether respondents Nos. 2 and 3 were "Officers" of Golcha Properties (P.) Ltd. during the relevant period.
2. Whether the claim is within limitation.
3. Whether the disputed amount of Rs. 15,000 was given to Shri S.P. Sharma and its effect on the application.
4. Whether non-applicants Nos. 1, 2, and 3 misappropriated and retained the amount of Rs. 15,000.
5. Whether non-applicants Nos. 4, 5, and 6 are responsible for the disputed amount.
6. Whether the suspense entry of Rs. 20,000 related to the remittance of Rs. 15,000 from the Jaipur office to the Delhi office.

Issue-wise Detailed Analysis:

Issue No. 1: Whether respondents Nos. 2 and 3 were "Officers" of Golcha Properties (P.) Ltd. during the relevant period

"Officer" as defined in sub-section (30) of section 2 of the Companies Act includes any director, managing agent, secretaries and treasurers, manager or secretary, or any person whose directions the board of directors is accustomed to act. The definition is broad to prevent dummy directors from implementing dubious policies while masterminds remain in the background. Based on the evidence, Shri P.C. Dhadda was the secretary, Shri G.L. Jain was the chief accountant, and Shri K.C. Jain was the cashier in 1965. They were involved in preparing and signing voucher No. 320 dated 25th August 1965, for Rs. 15,000. Thus, non-petitioners Nos. 2 and 3 were officers of the company as defined under the Act.

Issue No. 2: Whether the claim is within limitation

Section 458A of the Companies Act prescribes the exclusion of certain periods in computing the limitation period for any suit or application by a company being wound up. The period from the commencement of winding up to the winding-up order date and one year following the order is excluded. The winding-up order was made on 10th May 1968, and the claim was filed on 13th October 1971. Given these exclusions, the claim is within the limitation period.

Issue No. 3: Whether the disputed amount of Rs. 15,000 was given to Shri S.P. Sharma and its effect on the application

DW-2, Shri Satya Prakash Sharma, stated he arranged Rs. 20,000 for the company in liquidation, of which he got back Rs. 15,000. However, there is no entry in the Delhi office for Rs. 15,000. The name of the messenger who took the money was not disclosed, and the suspense account opened in 1971 could not be correlated to the Rs. 15,000 remittance. The evidence suggests that the Rs. 15,000 sent from Jaipur to Delhi was unaccounted for, and the non-petitioners are responsible for ensuring the amount was credited.

Additional Issue No. 1: Whether non-applicants Nos. 1, 2, and 3 misappropriated and retained the amount of Rs. 15,000

The evidence shows that the Rs. 15,000 was not accounted for in the Delhi office. Non-applicants Nos. 1, 2, and 3 did not ensure the amount was credited or accounted for. While it is difficult to conclude misappropriation, the evidence indicates the amount was not accounted for, and they cannot be absolved of responsibility.

Additional Issue No. 2: Whether non-applicants Nos. 4, 5, and 6 are responsible for the disputed amount

Non-applicants Nos. 4, 5, and 6, as directors, are bound by the actions of their secretary, chief accountant, and cashier. Since non-applicants Nos. 1, 2, and 3 are responsible for the unaccounted Rs. 15,000, the directors share this responsibility for ensuring the amount was duly credited.

Additional Issue No. 3: Whether the suspense entry of Rs. 20,000 related to the remittance of Rs. 15,000 from the Jaipur office to the Delhi office

The evidence, including statements from Shri S.P. Sharma and Shri P.C. Dhadda, fails to establish a correlation between the Rs. 15,000 drawn from Jaipur and the suspense amount of Rs. 20,000. The accountant and auditor could not find any co-relation, leading to the conclusion that there is no relationship between these amounts.

Conclusion:

The claim filed by the official liquidator is decreed against non-applicants Nos. 1 to 6 with costs. They are liable to pay interest at the rate of 6% from 25th August 1965 until the realization of the amount.

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