9911796707
TMI Blog1993 (7) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... um of Rs, 1,11,00,260,18 together with interest thereon at the rate of 18 per cent. per annum being the prevailing rate charged by the nationalised banks from the date of liquidation until realisation. ( b )The respondents and/or each of them have misappropriated a sum of Rs. 39,14,443.75 being the unsecured loans collected mostly from various customers as and by way of advance and misappropriated the said sum. The said respondents are bound to restore the said sum of Rs. 39,14,443.75 together with interest thereon at the, rate of 18 per cent. per annum being the prevailing rate charged by the nationalised banks from the date of liquidation until realisation. ( c )The respondents and each of them have failed and neglected to discharge the various liabilities including statutory liabilities to the extent of Rs. 14,36,282.62 which they have misappropriated by withdrawing on various heads of expenditure. The respondents and each of them are bound to restore the said sum of Rs. 14,36,282.62 together with interest thereon at the rate of 18 per cent. per annum being the prevailing rate charged by the nationalised banks from the date of liquidation until realisation. ( d )The respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f claim had been filed. But by a judgment dated January 10, 1992, delivered by Mrs. Ruma Pal J. the hearing of respondent No. 3 on the basis of affidavit-in-opposition regarding the maintainability of the application was allowed. The operative part of the judgment is as follows: "Accordingly, I allow respondent No. 3 to be heard on the basis of his affidavit regarding the maintainability of the application. It is, however, made clear that if any disputed question of fact is involved the court will relegate respondent No. 3 to the normal procedure of trial of a misfeasance proceedings. Let this matter appear as 'for orders' on January 20, 1992, for the purpose of determining the preliminary issues as far as respondents Nos. 2 and 3 are concerned. Let xerox copy of this judgment be given to the parties upon the undertaking to apply for the certified copy of the judgment and payment of usual charges." It is submitted by the learned advocate, appearing for the official liquidator, that the official liquidator is empowered under section 543 of the Companies Act, 1956, to take appropriate steps against the delinquent director for the acts of misfeasance and/or breach of trust a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Clauses Act which is as follows : "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or riot" Mr. Dhandhania submits that section 64 of the IRBI Act, 1984, pro vides that no suit or other legal proceedings shall lie against any officer of the IRBI authorised to discharge any functions under this Act for any loss or damage caused or is likely to be caused by anything which is in good faith done or intended to be done. It is submitted by Mr. Dhandhania that in the instant case the allegations are vague and general allegations against all the directors and no specific allegation is made against respondent No. 3 and only were general allegations regarding misappropriation are not sufficient because the case of respondent No. 3 stands on a special footing as respondent No. 3 was a nominee director on the board of the company. Mr. Dhandhania refers to a decision in the case of Official Liquidator, Milan Chit Fund and Finance P. Ltd. v. Joginder Singh Kohli [1978] 48 Comp. Cas. 357 (Delhi) wherein it was held (at pages 363 and 366) : "It has been held that misfeasance was a serious charge and detailed narr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory immunity in accordance with the provisions of the Industrial Reconstruction Bank of India Act, 1984. There cannot be any dispute with regard to the provisions laid down under the said Act. Section 64 of the said Act, inter alia, provides that no suit or other legal proceedings shall lie on an official of the IRBI authorised to discharge the function under this Act for any loss or damage caused or likely to be caused which is "in good faith" done or intended to be done. The nominee-director, respondent No. 3, became a director of the said company by virtue of his employment in the office of the secured creditor, IRBI. Being a director of a company the respondent has its statutory obligation cast upon him under the Companies Act, 1956. Whether such duties and obligations have been complied with and have been performed "in good faith" is a question of fact to be decided on trial. From the documents and papers placed before me, it is very difficult to decide whether these respondents have acted in "good faith" or act done on behalf of IRBI. Those questions should be gone into and the official liquidator should be given a chance to file points of claim and the respondents may b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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