1998 (3) TMI 578 - HC - Companies Law

Directors found liable for misfeasance & breach of duty, ordered to pay Rs. 3,10,000 + 12% interest.

Kainth Finance (P.) Ltd. Versus Shri Karam Singh Kainth

The court held that the respondents were liable for misfeasance and breach of duty, causing a loss to the company. They were directed to pay Rs. 3,10,000 ... Winding up – Power of court to assess damages against delinquent, directors, etc. Issues Involved:1. Entitlement of the petitioner to receive a sum of Rs. 3,10,000 from the respondents.2. Entitlement of the petitioner to interest, and if so, at what rate and on what amount.3. Whether the petition is barred by time.4. Whether the petition is bad for non-joinder of Gopal Krishan Monga, the voluntary liquidator.5. Relief.Issue-wise Detailed Analysis:Issue 1: Entitlement of the petitioner to receive a sum of Rs. 3,10,000 from the respondentsThe court examined whether the petitioner, the official liquidator, was entitled to recover Rs. 3,10,000 from the ex-directors of the company. The official liquidator proved that the original pronotes, which were the basis for the claim, were handed over by the respondents to the voluntary liquidator and then to the official liquidator. The respondents failed to recover the debts within the limitation period, leading to a loss for the company. The court found that the respondents acted negligently and irresponsibly, causing a definite loss to the company. Thus, the court held that the respondents were liable to restore the amount to the company.Issue 2: Entitlement of the petitioner to interest, and if so, at what rate and on what amountThe petitioner claimed interest on the amount payable to the company. Some pronotes mentioned an interest rate of 18% per annum, but no evidence was provided to show that the company was entitled to the same rate on all pronotes. The court decided that a nominal rate of interest at 12% per annum from the date of the petition's institution until realization would be just. Therefore, the court held that the petitioner was entitled to interest at the rate of 12% per annum on the amount of Rs. 3,10,000.Issue 3: Whether the petition is barred by timeThe respondents argued that the petition was barred by time, as it was filed on November 25, 1992, while the company passed a resolution for voluntary winding up on March 24, 1980. The court examined the provisions of section 543(2) of the Companies Act, which allows an application to be made within five years from the date of the winding-up order or the first appointment of the liquidator, or the date of the misapplication, misfeasance, or breach of trust, whichever is longer. The court found that the winding-up order was passed on September 8, 1988, and the petition was filed within the five-year limitation period. Thus, the court held that the petition was not barred by time.Issue 4: Whether the petition is bad for non-joinder of Gopal Krishan Monga, the voluntary liquidatorThe respondents contended that the petition was bad for non-joinder of Gopal Krishan Monga, the voluntary liquidator. However, the court noted that Mr. Monga had already died during the pendency of the petition, and his liability was not relevant to the respondents' liability. The court held that Mr. Monga was not a necessary party to the petition and that the petition was maintainable without his joinder.ReliefThe court concluded that the respondents were liable for the misfeasance and breach of duty, which resulted in a loss to the company. Consequently, the court directed the respondents to pay a sum of Rs. 3,10,000 with 12% interest from the date of the petition's institution until realization. The petition was accordingly allowed.