SAMDEV DASGUPTA Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) The above appeal has been filed by the lone appellant against the judgment and order dated December 20, 2007 (Official Liquidator v. Samdev Dasgupta, 2008 146 CompCas 119 passed on application made by the official liquidator making a claim under section 543(1) of the Companies Act, 1956. By the impugned judgment and order the appellant has been held to be guilty of committing misfeasance as having occasioned loss to the company by willful act of misappropriation. Therefore by the impugned judgment and order a direction was given to the official liquidator to recover the Sum of Rs. 59,70,423, Rs. 60,16,012, Rs. 2,99,30,589 and Rs. 37 lakhs from the first respondent with interest at the rate of 10 per cent, per annum from the date of the order, and also award cost of the proceedings in favour of the official liquidator assessed as 3,000 G.M. The company, namely, Stiffel Und Schuh (India) Ltd., was directed to be wound up by the order of the court dated July 15, 1999 and the official liquidator being the first respondent herein was appointed as the liquidator of the company. Thereafter the official liquidator approached this court on or about April 26, 2002, for obtaining a direction to appoint an auditor to investigate into the affairs of the company (in liquidation). Accordingly, in terms of the order of this court an auditor was appointed and one M/s. Sashi Agarwal was appointed as auditor and subsequently the said investigating auditor filed a report as to the affairs of the company. Thereafter based on the report of the said investigating auditor the official liquidator filed application on August 26, 2004, against the appellant herein, one Gautam Mitra, 10, Mahendra Road, Calcutta-700 025, Erich Gutmann, Brigitte Stockmann both residents of Austria, one Pramod Kumar Khaitan of 11/11A, Mayfair Road, 5th Floor Block-Q, Calcutta-700 019, one Ranjit Kumar Banerjee of Salt Lake, one Dr. Nitish Kumar Sengupta, Rajendra Nath Sengupta both residents of New Delhi, Subrata Ghosh a resident of Chetla Road, Calcutta, Salil Kumar Gupta resident of Jodhpur Park, Calcutta, Tapas Sengupta resident of Kamal Gandhar, Sarat Ghosh Garden, Sri Purnendu Gupta a resident of New Road, Alipur, Calcutta and one Arindrajit Chowdhury. In the said application the respondents and each of them are described to be persons having power of management and control of the said company at the time of winding up. They and each of them were charged with misapplication, misappropriation and/or retention of large fund of the company as such they had become liable and accountable for a sum of Rs. 7,30,00,470. They were also charged with guilty of misfeasance and breach of trust with the following particulars of charges :

(2.) There has been no affidavit filed by the official liquidator to deny and dispute the statement of defence made out as quoted hereinabove.

(3.) Thereafter the learned trial judge decided to dispose of the matter on witness action.