2012 (11) TMI 567 - HC - Companies Law

Misfeasance of Directors application for recovery from the director - respondent No. 3, it is contended that he is a Non-Residential Indian Director who was not engaged in the day-to-day affairs of the company and cannot be held liable Held that - Therefore, in a circumstance whereby the earlier report the observations made by the Statutory Auditors have been relied on by the Chartered Accountant, such observation by the very same Statutory Auditors for the subsequent years to indicate that the amount in fact had not been passed onto the Sister concern cannot be brushed aside, Therefore, if these aspects are kept in view, it cannot be said that there is deliberate attempt on behalf of the respondents to make unlawful gain unto themselves when it is not established that there was loss caused to the applicant-company by such provision in the balance sheet with regard to the marketing strategy of the applicant-company. When the element of misfeasance and there being wilful conduct on the respondents to make gain unto themselves to the detriment of the applicant-company is not made out, in any event this Court need not go into the question as to whether the claim itself was time-barred or not. - Application of the liquidator rejected.

Summary

Issues:
- Application under Section 543 of the Companies Act for misfeasance against former Directors.
- Dispute regarding the claim made by the Official Liquidator.
- Examination of evidence by Chartered Accountant and respondents.
- Evaluation of misfeasance allegations and liability of the Directors.
- Analysis of the claim amount and transfer to a Sister concern.
- Examination of evidence to ascertain misfeasance and gain by Directors.
- Consideration of involvement and liability of individual respondents.
- Decision on the application and dismissal of the claim.

Detailed Analysis:
1. The Official Liquidator filed an application under Section 543 of the Companies Act, alleging misfeasance by former Directors. Initially, the claim focused on sundry debtors, later increased based on a Chartered Accountant's report to Rs. 1,57,02,216. Respondents disputed the claim, arguing lack of liability, non-involvement, and resignation prior to winding up.

2. The matter proceeded to evidence stage with the Chartered Accountant and respondents examined. The Court emphasized the need for specific proof of misfeasance by Directors for recovery. The claim aimed to recover losses due to incomplete debtor details and alleged transfer of funds to a Sister concern.

3. The Chartered Accountant's evidence supported the claim, relying on Statutory Auditors' remarks in the company's annual report. Respondents' evidence countered the allegations, citing external circumstances like Provident Fund actions affecting record availability.

4. The Court evaluated the Rs. 1,57,02,216 claim, focusing on alleged fund transfer to the Sister concern. Respondents provided explanations from subsequent balance sheets, indicating reversals and non-transfer of funds, challenging misfeasance allegations.

5. The Court scrutinized the evidence, including balance sheets and notes, to determine if Directors gained unlawfully. Respondents' reliance on subsequent reports and explanations aimed to refute misfeasance claims and demonstrate no intentional gain at the company's expense.

6. The Court concluded that the evidence did not establish misfeasance or intentional gain by the Directors. Individual respondents' limited involvement, non-involvement in day-to-day affairs, and accepted resignations further weakened the misfeasance claims.

7. Considering the pleadings, evidence, and lack of proof of misfeasance, the Court dismissed the application under Section 543 of the Companies Act, ruling against granting the claim due to insufficient evidence of Director misconduct and intentional gain.

This detailed analysis covers the issues, evidence evaluation, misfeasance allegations, liability assessment, and the final decision regarding the application under Section 543 of the Companies Act.