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TMI Blog1963 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... irector, Venkatesalu Naidu had in his hands a sum of ₹ 25,585.23 nP. belonging to the company, and was also in possession of the company's account books. In spite of the request of the liquidator, he failed to hand over the cash or the account books. He, however, remitted into the bank to the credit of the company various amounts between 21-10-1955 and 18-4-1957, aggregating to ₹ 6,000. Venkatesalu Naidu died in or about July 1957. In this suit, the liquidator claims, after giving credit to the sum. of ₹ 6,000/- paid by Venkatesalu, balance of ₹ 19585.23 nP. left with him. It is alleged in the plaint that the defendants are his undivided sons, and that the amount claimed belong to the company, but was improperly utilised by Venkatesalu, for the purpose of his family business and for improving his family lands. It is stated further that the defendants were benefited by reason of the utilisation of the company's funds, and that therefore they are liable to re-pay the amount to the company from and out of the assets of their joint family. 3. The defendants no doubt resisted the suit, but they did not deny that Venkatesalu, their father, had with him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch deserves serious consideration is as regards the scope of Section 543 of the Indian Companies Act, and whether that provision negatives the jurisdiction of the Civil Court to sustain a claim of the present description. We shall immediately refer to the provision itself, in so far as it is material:. 6. Section 543(1): If in the course of winding up a company, it appears that any person who has taken part of in the promotion or formation of the company, or any past or present director, managing agent, secretaries and treasurers, manager, liquidator or officer of the company- (a) has misapplied or retained or become liable or accountable for any money or property of the company, or (b) has been guilty of any misfeasance 01 breach of trust in relation to the company; the Court may, on the application of the Official liquidator, or the liquidator ............ made within the time specified in that behalf in subsection (2), examine into the conduct of the person, director, managing agent ...... and compel him to repay or restore the money or property or any part thereof respectively, with interest at such rate as the Court thinks just, or to contribute such sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred (Explanation omitted). Any civil right can be agitated in a suit, but the legislature can enact a measure barring the jurisdiction of civil Courts, in respect of certain classes of suits. Generally, the barring statute contains express words like, No civil Court shall entertain a suit ......... or, the decision passed by a certain officer shall not be called in question in any Civil Court.......... There can be no difficulty in understanding such explicit words as ousting the jurisdiction of the civil Court. The problem assumed proportions, when the question is, whether in any given case, the civil Court's jurisdiction is impliedly barred. This is a vexed question, which has often come up for consideration before the Courts. Cases on the subject are many. They are of such varied types that they elude analysis and formulation, notwithstanding the development of law to attune to the needs of a fast changing society, the locus classicus on the subject is the following observation of Willes, J., in Wolverhampton New Water Works Co. v. Hawkesford, (18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of misfeasance proceedings is described thus: The foregoing provision does not create any new liability or new right; it only provides a summary mode of enforcing rights including rights created by the winding up which must otherwise have been enforced by the ordinary jurisdiction, of the Court. We are of opinion that Section 543 is only an enabling provision, and it cannot be construed as depriving the aggrieved parties of a remedy by way of suit by reason only of the special procedure provided for therein. The present case falls directly within the first category of cases described by Willes, J., in (1859) 6 CB (NS) 336 at p. 356. There is no principle of law, so far as we are able to see, which would disable a suitor from pursuing one of several remedies which he may have under the law of the land. The utmost that can be said is that he should not pursue all the remedies concurrently, as that would result in multiplicity of proceedings and perhaps also in conflicting judicial pronouncements. So long as a right of suit cannot be said to have been taken away expressly or by necessary implication, the suit must be held to be maintainable. In our opinion, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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