JUDGMENT
V.K. Singhal, J.
1. In the present matter ex parte orders were passed on January 16, 1987, and Vishnu Kumar Pradhan, Vishwambhar Dayal Pan-sari, Deokinandan Garg and Shankarlal Chaturvedi were held responsible for misfeasance for a sum of Rs. 35,502.42 jointly and severally. An application to set aside the ex parte order was moved and the prayer was accepted in respect of Vishnu Kumar Pradhan only while in respect of others it was rejected. In respect of Vishnu Kumar Pradhan preliminary issues were framed on November 4, 1988, as under :
“1. Whether the petition under Section 543 of the Companies Act, 1956, is not maintainable as the petitioner has not given out specific allegations with all details as required under the law ?
2. Whether there is non-compliance of Rules 261 and 262 of the Companies (Court) Rules. If it is so, what is the effect on the petition.”
2. The preliminary issues were decided by this court, vide its order dated March 2, 1990, and the case was directed to be heard. On the basis of the above issues the evidence was allowed to be produced. The official liquidator has filed his affidavit on November 4, 1991, and an affidavit of Shri Bhagwati Prasad Gupta was also filed. The official liquidator was offered to be cross-examined by learned counsel for the respondents on July 29, 1994, on which date Mr. Jain appearing on behalf of the respondents had declined to cross-examine him. Therefore, the matter was listed for final arguments.
3. I have heard arguments of learned counsel for both sides. In accordance with the report of the chartered accountant, N.C. Jain, it was found that the assets are of Rs. 39,855.62 which includes the debts of Rs. 32,840 which have become time-barred. It was further observed that a sum of Rs. 9,204 had been recovered from the debtors by Shri Deoki Nandan (ex-director) against the outstanding balance of Rs. 39,855.62 and a sum of Rs. 50,651.62 was still outstanding which includes the interest as well. The statement of affairs under Section 454 submitted by the ex-directors to the official liquidator was not found to be true and the correct statement of affairs was filed to the official liquidator on January 29, 1981. Material omissions in the statement of affairs were found attracting the provisions of Section 538 of the Companies Act. It is mentioned that the loan as mentioned in annexure C has become time-barred due to the failure of the ex-directors of the company. Shri Vishnu Kumar Pradhan remained the director of the company from July 3, 1976, till winding up of the company, i.e., January 29, 1981.
4. Learned counsel for the respondents has relied upon the affidavit submitted by Bhagwat Prasad in which it is mentioned that the entire affairs were managed by Babulal Gupta. He also argued that no action was taken against Babulal Gupta in spite of the fact that he was equally responsible for negligence and for the debt becoming time-barred.
5. I have gone through the record. Prima facie I find that Babulal Gupta is also responsible for which suitable action is directed to be initiated. So far as Vishnu Kumar Pradhan is concerned, learned counsel for the respondent has relied upon the following :
(i) Premier Credit and Motors Co. (P.) Ltd. v. Shafiqur Rehman [1987] 3 Comp LJ 197 (Kar), (ii) Official Liquidator, Karnataka High Court v. R.C. Marathe [1980] 50 Comp Cas 562 (Kar), (iii) Official Liquidator v. G. Shanmugham [1979] 49 Comp Cas 903 (Mad) and (iv) Official Liquidator v. Joginder Singh [1978] 48 Comp Cas 357 (Delhi).
6. The cases and the facts which have been produced by the official liquidator by way of affidavit have been perused. The respondents have relied upon the affidavit of Bhagwat Prasad and no counter has been filed to the affidavit of the official liquidator and the said affidavit remains uncontroverted. On the basis of the affidavit filed by the official liquidator it is amply proved that Vishnu Kumar Pradhan is also liable for misfeasance and he has been negligent in not taking timely action as a director. It is not necessary for fixing the liability that the director should be a shareholder or should actually participate in the management. The liability has been created under Section 543 and the respondent has become liable to pay the amount which has become time-barred on account of his misconduct by way of breach of duty which falls within the category of misfeasance and in exercise of the powers under Section 543 of the Companies Act, I hereby direct that the respondent Vishnu Kumar Pradhan shall also be liable jointly and severally along with Vishwambhar Dayal Pansari, Deokinandan Garg and Shankarlal Chaturvedi for which order has already been passed. The Additional Registrar of this court is directed to execute the decree. Any action if taken against Babulal Gupta would be in addition to the order which is being passed.
7. Consequently, the company miscellaneous application stands disposed of accordingly.