NARMADA CHOUDHURY Vs. MOTOR ACCIDENT CLAIMS TRIBUNAL

JUDGEMENT

(1.) A short and simple point of law has been agitated in this writ application by two ex-Directors of a defunct company. Their grievance is that the Motor Accident Claims Tribunal purporting to act as an executing court substituted them as certificate-debtors in place of the defunct company against which an award was passed by the learned Tribunal. The pathology of the case is truly revealed by the following facts laid bare in its essential detail.

(2.) ON 21-9-1962 one of the vehicles owned admittedly by M/s. National Transport (India) Pvt. Ltd. (hereinafter, the company) collided with an engine of a running train at the Noonmati Railway level crossing near Gauhati. One Dulal Chandra Chakraborty, an young typist aged 21, in employment of the hirer of the vehicle (M/s. Oil India Ltd.), travelling by the said Bus, in the course of employment, sustained serious injuries in the said accident resulting in his death. On a claim being preferred by Mahim Chandra Chaktaborty, the father of the deceased, the Motor Accident Claims Tribunal, Gauhati, by its award dated 28-1-1975, passed in MAC Case No. 45(K)/72, allowed the same with interest and costs and by the same order also determined the respective liabilities of the aforesaid owner of the vehicle M/s. National Transport (India) Private Limited and M/s. New India Assurance Company Ltd. with whom the vehicle was insured. Taking into consideration the terms of the policy and the provisions of Section 95(2)(b) if the Motor Vehicles Act the insurer was directed to pay Rupees 2,000/- and the balance Rs. 13,000/- was made payable by the owner. A Bakijai Case being Case No. 24/74-75 was started against the company for realisation of the awarded amount and a notice under Section 7 of the Bengal Public Demands Recovery Act was issued on 29-12-1976 against the said Company as the certificate-debtor. Before the Bakijai Officer the petitioners filed an objection stating that the said company was dissolved under the Companies Act by a notification published in the Gazette of India dated 21-4-1973 and further that as members of the dissolved company they were not in any way liable for the debt of the dissolved company. On 12-7-1977 the Bakrjai Officer passed an order upholding the plea of the petitioners and directing that the proceeding may continue only against the assets of the company and not against the personal property of the objectors, who are the petitioners before us. On 19-11-1977 the Bakijai Officer passed an order to the effect that the company was not in existence and it had no moveable property and therefore it was not possible to realise the amount it was further directed that the demand certificate be returned to the departmental authority for necessary action. In the meantime, however, on 13-10-77, the heirs of the claimant, Mahim Chandra Chakraborty who, as it appears, passed away during the pendency of the proceeding, filed an application before the learned Tribunal for substituting the petitioners as ex-Directors of the dissolved company in place of the said company on which show cause notices were issued to the petitioners. After hearing the parties the learned Tribunal by its order passed on 16-8-78 allowed the prayer and directed that a fresh certificate in the name of the newly added opposite parties, namely, the petitioners, be issued. Accordingly, on 23-10-78, a certificate bearing No. STAT/105/78, dt. 3-10-78 was issued by the Certificate Officer, Gauhati, against the petitioners naming them as the certificate-debtors for realisation of the awarded amount The validity of this certificate and the learned Tribunal's order dt. 16-6-78 are challenged in these proceedings in this court.

(3.) WE have no doubt about the fact that and it is also not disputed before us that the company was dissolved, as it appears from Annexure--I to the petition, in accordance with the provisions of Section 560(5) of the Companies Act and that a notification to that effect was published in the Gazette of India on 21-4-73. The only question which fails for our consideration in this application is the effect in law of the said dissolution inasmuch as the learned counsel for the respondents-claimants, Mr. B. Sarma, contends that by virtue of the proviso (a) of the same provision the liability of the dissolved company has devolved on the ex-Directors. In our opinion, however, the provision relied on does not provide a correct and complete answer to the questions raised before us on the validity of the impugned order The relevant provisions may, therefore, be read : Section 560(5): At the expiry of the mentioned in the notice referred to in Sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gezette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved : Provided that--