DEEBE POWER SYSTEMS PVT. LTD. (IN LIQUIDATION) REP BY OFFICIAL LIQUIDATOR ATTACHED TO HIGH COURT OF KARNATAKA, IV FLOOR, D AND R WING, KENDRIYA SADAN KORAMANGALA BANGALORE - 560034 Vs. SRI K. BALASUBRAMANIAM NO. 2062, 16TH D MAIN HAL II STAGE, I

JUDGEMENT

(1.) THE Instant application is filed by the Official Liquidator on behalf of the Company in liquidation under Section 543(1) of the Companies Act. By the said application, the Official Liquidator has alleged misfeasance and breach of trust against the respondents who were the erstwhile Directors of the Company in liquidation. In that regard, under different leads, a total sum of Rs. 11,66,171/ - with interest at 18% p.a. is claimed.The respondent Nos. 1 and 2, though served are unrepresented. The 3rd respondent has appeared through counsel and filed his statement of objections disputing the claim put forth in the application in so far as the 3rd respondent is concerned. In that light, the matter had been set down for evidence. The witness on behalf of the applicant was examined as PW -1 and the document at Exs.P1 and P2 were marked. The 3rd respondent filed his affidavit by way of evidence as RW -1.

(2.) HEARD Sri V. Jayaram learned counsel appearing for the applicant and Sri G. Krishnamurthy, learned counsel appearing for the 3rd respondent and perused the application papers.

(3.) THE upper division clerk M. Ramamurthy was examined as PW -1 by filing his affidavit by way of evidence. In fact, he has reiterated the points stated in the application. The statement of affairs was marked as Ex.P1 and the relevant entries therein to make the claim in the application have been marked as Exs. P1(a) and P1(b). The valuation report of M/s. Tecsok is marked as Ex.P2. The said witness has been cross -examined at length on behalf of the 3rd respondent. Keeping in view the contention put forth by the 3rd respondent, appropriate suggestions have been made to the witness. The witness in that regard, admits that the 3rd respondent herein has not filed the statement of affairs and no action has been initiated against him. The witness also admits that the 1st respondent was incharge of the day -to -day affairs and the 3rd respondent does not know the details. The said portion of the cross -examination coupled with the evidence tendered by the 3rd respondent as PW -1, would indicate that the 3rd respondent infacts was not incharge of the day -to -day affairs of the Company in liquidation though no documentary evidence have been filed with regard to the resignation in the year 1997. Even assuming for a moment that the fact of resignation has not been established, the allegation of misfeasance and breach of trust against the director could be made and established only if it is found that such Director was incharge of the day -to -day affairs of the Company, Therefore, when admittedly the 3rd respondent was not incharge of the day -to -day affairs, the claim intiated herein against the 3rd respondent cannot be sustained.