9911796707
TMI Blog2012 (12) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... s on 07/02/2007. 2. The brief facts that culled out from the averments made in the application indicates that the original Company Application No.29/1993 was filed u/Sec. 542 & 543(1) of the Companies Act, 1956 for repayment and restoration to the Company in liquidation impleading the directors of the Company as respondents and late GC Bhandari, being one of the promoter director of the Company, was impleaded as respondent No.1 in the original Company Application No.29/1993. 3. Notices of the company application No.29/1993 were served upon late GC Bhandari, counsel appeared on his behalf and reply was filed and issues were framed and during pendency G.C. Bhandari died on 07/02/2007. This Court would like to note that Sh. TC Bhandari, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent NO.1 late GC Bhandari was deleted from the array of respondents vide order dt. 05/12/2008. However, at a later stage, another application came to be filed from the office of the Official Liquidator under O.22 R.4 CPC for taking legal representatives of late GC Bhandari on record and since the counsel appearing for other respondents had no objection about the same, that application was allowed on 29/07/2010 and the legal representative of late GC Bhandati was taken on record. However, the matter was not put to rest and immediately after the legal representative was served, written objections came to be filed that once the respondent-director late GC Bhandari stood deleted from the array of respondents vide order dt.05/12/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd further submits that it was the duty of the counsel for the respondents to trace out that there was any legal representative and when the second application came to be filed by the counsel himself on his personal knowledge, he too misled the Court by making a mention that late GC Bhandari has no son as legal representative but still the fact remains that admittedly late GC Bhandari has a daughter who could be his legal representative but since this fact was not brought to the notice of the Court at any point of time either by Sh. TC Bhandari, brother of late GC Bhandari or the counsel appearing for him and both misled the Court for one reason or the other and that has constrained the Official Liquidator to file application seeking permis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings in the original company application initiated at the behest of the Official Liquidator, cannot be presupposed at this stage and the only question which has to be considered is as to whether in the capacity of legal representative, she can be impleaded as a respondent in the original Company Application No.29/1993. 9. I have considered the rival submissions made by counsel for the parties and have also considered the material available on record. 10. As regards the proceedings initiated against the directors of the company u/Sec. 542 & 543 of the Companies Act, 1956, the question as to whether such proceedings can be allowed to be continued after death of the any of the director against his legal representative and liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the estate of the deceased in his hands. 18. The liability arising under the misfeasance proceedings is founded on the principle that a person who has caused loss to the company by an act amounting to breach of trust should make good the loss. Section 543 of the Act does not really create any new liability. It only provides for a summary remedy for determining the amount payable by such person on proof of the necessary ingredients. The section authorises the court to direct such persons chargeable under it to pay a sum of money to the company by way of compensation. This is not a provision intended to punish a man who has been found guilty of misfeasance but for compensating the company in respect of the loss occasioned by his mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that late GC Bhandari has a daughter who could be his legal representative but this fact for the reason best known was misled and concealed from this Court. 13. As already noticed, even after application came to be filed seeking deletion of the name of late GC Bhandari from the array of respondents, time was granted to the counsel to inform regarding legal representative of the deceased, if any but the counsel also shown his inability regarding the legal representative and even after best efforts made from the office of OL, it could not be traced out and by introducing O.22 R.10-A CPC, the legislative intention behind was that it is the duty of the pleader to communicate to the Court regarding death of a party and to subsist the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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