TaxTMI 
TaxTMI 
2012 (11) TMI 567
X X X X Extracts X X X X
X X X X Extracts X X X X
.... insofar as the details of the sundry debtors not having been provided against which a sum of Rs. 25,00.000/- had been shown as outstanding to the Company in liquidation. Subsequently, during the pendency of the application, a Chartered Accountant was appointed to verify the accounts and based on the report filed by the Chartered Accountant, a sum of Rs. 1,57,02,216/- was added to the claim. 2. The respondents have filed their objection statement to the application. The claim made in the application is disputed. The correctness of the report submitted by the Chartered Accountant is also questioned. It is therefore contended that the respondents are not liable to pay the amount claimed in the application, Insofar as respondent No. 3, it is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....against the name of sundry debtors and also loans and advances, since it is contended that the erstwhile Directors have failed to furnish details of such debtors so as to enable the Official Liquidator to recover the said amount from them. Therefore, it is contended that the loss caused to the company in the said manner is to be recovered from the Directors. Insofar as the amount of Rs. 1,57,02,216 the same is based on the observation made by the Chartered Accountant appointed through this Court with reference to the remarks made by the Statutory Auditors stating that the said amount was released to one M/s Associated Precisions Spindles Limited, which is a Sister concern of the Company in liquidation. Since the Directors herein have certai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8. In the background of the evidence which has been tendered in support of the pleadings, the evidence tendered on behalf of the respondents requires to be noticed to ascertain as to whether the said claim made has been satisfactorily explained by the respondents as being' either beyond their control or not having indulged in an act so as to make gain unto themselves. In that regard, a perusal of the affidavit evidence of Sri Suresh Manoharlal Mehta, who was examined as R.W. 1 at the outset refers to the seizure of the factory premises at Dharwad by the Provident Fund authorities during October 1997 and public auction was undertaken by the said authorities on 09.12.1998. With reference to the same, it is pointed out that prior to the windin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om the documents which were available as taken possession by the Official Liquidator, that in itself cannot constitute an act of misfeasance to come to the conclusion that the names of the debtors had not been furnished by the respondents with an intention of avoiding recovery and causing loss to the company or on the other hand making gain unto themselves. 9. The question that would arise thereafter is with regard to the claim of Rs. 1,57.02,216/--. The claim in that regard as noticed has been made with regard to the amounts said to have been transferred to a Sister concern of the Company in liquidation. The basis for the same has been taken by that Chartered Accountant from the observation made by the Statutory Auditors in the 18th Annua....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o the Export Marketing had been reversed, the amount which in fact had not passed hands but had only been indicated by way of provision has been subsequently reversed. In this regard, reference is made to the balance, sheet as on 30,09.1995 where the provision for the earlier years viz., 1993-94 is indicated at an amount of Rs. 13,412,309/- and during the year 1994-95, the same is indicated as not payable. Reference is also made to the note which has been made in the financial statement wherein it is stated as follows: "K. Export Market Development Expenses: Export market development expenditure of Rs.15.7 millions incurred :by the company during the previous year has been written back, since the export order could not be materialised due....
X X X X Extracts X X X X
X X X X Extracts X X X X
....applicant viz., P.W.I had relied on the document at Ex.P1 i.e., the Annual Report wherein certain observations were made and in the subsequent document, the same have been clarified by the same Auditors. To that extent, there is no evidence to indicate that the said Auditors have also connived with the respondents. 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 ....