L K PRABHU Vs. S M AMEERUL MILLATH

JUDGEMENT

(1.) M.C.A. Nos. 94/95 in C.P. No 23/88 and 29/96 in C.P. 2/87 are filed by Exdirectors of the Company in liquidator, under Section 543 of the Companies Act, 1956 alleging that the 2nd respondent as Official Liquidator, while conducting sale of movable and immovable properties of the Company in liquidation, contumaciously and wilfully acted in a manner detrimental to the interests of the Company and consequentially his action is misfeasance and malfeasance to be proceeded against. They therefore pray for a declaration that the 2nd respondent has committed misfeasance and breach of trust in relation to the company in liquidation and that necessary enquiries be made and accounts taken for ascertaining the liability of the 1st respondent to contribute to the assets of the company by way of compensation for the alleged misfeasance and breach of trust. They also seek an order directing the 1st respondent to contribute to the assets of the company in liquidation as he may be found liable, with 12% interest from the date of his misfeasance to the date of repayment. The averments are almost in same terms, in both the M.C.As.

(2.) The 1st respondent is the person who was holding the office of Official Liquidator at the material time of sale of the assets of the Company in liquidation and the 2nd respondent is the Official Liquidator. The same person is still holding the office of the Official Liquidator.

(3.) In both these M.C.As. the Official Liquidator has filed C.A. No. 191/96 and C.A. 20l/96 respectively, taking up preliminary objection that an application under Section 543 of the Companies Act will not lie against the Official Liquidator. Therefore, the parties were heard on the question of maintainability as a preliminary point. Accordingly, C.A. 191/96 and C.A. 201/ 96 were taken up first to decide the preliminary issue regarding the maintainability of a petition under Section 543 alleging misfeasance against the Official Liquidator. The term `Officer' is defined in Section 2(30) of the Act as follows :