Punjab-Haryana High Court
Maruti Ltd. (In Liquidation) And Anr. vs P.R. Sasidharan And Ors. on 18 December, 1989
Equivalent citations: [1990]68COMPCAS5(P&H)
JUDGMENT G.R. Majithia, J.
1. Facts leading to the filing of this petition briefly are : Petitioner No. 1 was ordered to be wound up by an order dated March 6, 1978, passed by the learned company judge in C. P. No. 126 of 1977, which was presented on May 16, 1977. The official liquidator attached to this court was appointed as the provisional liquidator of the company by an order dated July 22, 1977. The undertaking of petitioner No. 1 had been acquired by petitioner No. 2 by virtue of the Maruti Limited (Acquisition and Transfer of Undertakings) Act 1980 (Act 64 of 1980), inclusive of the right, title and interest excepting the liabilities. Respondent No. 1 was an employee of petitioner No. 1. He was paid a sum of Rs. 6,247 (Rs. 2,247 plus Rs. 4,000 on account of leave encashment and supervision charges respectively). The said payment was made under the orders of respondent No. 3, Shri B. M. Pant, the then general manager of petitioner No. 1. Respondent No. 2, Shri S. M. Rege, who was the secretary of petitioner No. 1 at the relevant time, was asked to render his explanation as to how the payments had been made to respondent No. 1. In his explanation, respondent No. 2 stated that the payments had been made under the orders of respondent No. 3. Respondent No. 3 stated that the payments had been made on receipt of expert advice from respondent No. 2. Since the payment was made without a valid authorisation by the board of directors of petitioner No. 1, all the respondents have been made jointly and severally liable for refund of the amount with interest.
2. Respondent No. 3, in his written statement, justified the payment of the amount towards leave encashment and supervision charges. It was also pleaded that, the payments under the head "supervision charges and leave encashment" were made to various employees under the instructions of Shri Sanjay Gandhi, one of the directors of petitioner No. 1.
3. From the pleadings of the parties, the following issues were framed :
1. Whether this court has jurisdiction to try this claim ? OPD
2. Whether the petitioners have not obtained sanction from this court before filing this petition and as such the petition is not maintainable ? OPD
3. Whether the petition is barred by time ? OPD
4. Whether the amount in dispute was paid illegally by way of leave encashment and supervision charges and the company is, therefore, entitled to recover it from the respondents ? OPP
5. If issue No. 4 is proved, whether the petitioner-company is entitled to any interest; if so, from what date and at what rate ? OPP
6. Relief.
4. By an order dated March 27, 1987, with the consent of the parties, it was ordered that the statement of Shri B. M. Pant, respondent No. 3, who appeared as RW-2 in C. P. No. 60 of 1982, will be read as evidence in the instant case also.
Issue No. 1 : This issue was tried as a preliminary issue and the same was decided in favour of the petitioners and against the respondents by the learned companyjudge, vide his order dated October 12, 1984.
Issue No. 2 : This issue has to be decided in favour of the petitioners and against the respondents in view of the order dated July 22, 1977, passed by the learned company judge in Company Petition No. 126 of 1977, whereby the official liquidator attached to this court was appointed as the provisional liquidator of petitioner No. 1. The liquidator is fully competent to institute the present proceedings.
Issue No. 3 : This issue was decided by a Division Bench of this court in Maruti Ltd. (in liquidation) v. Parry and Co. Ltd. C. P. No. 82 of 1982, on February 4, 1988--[1989] 66 Comp Cas 309, wherein it was held as under (at page 316) :
"In view of our above observations, we are of the considered view that the period of limitation for an application making a claim under Section 446(2) of the Act on behalf of the company, which is being wound up, shall commence from the date of the winding up order and the period from the date of commencement of the winding up of the company to the date the winding up order is made, both inclusive, and a period of one year immediately following the date of winding up shall be excluded in computing the period of three years provided by article 137 of the Limitation Act."
5. In view of the Bench decision supra, issue No. 3 is also decided in favour of the petitioners.
Issues Nos. 4 and 5 : In support of these issues, the petitioners examined Shri Harkaran Singh, who was the official liquidator of petitioner No. 1 from August 5, 1977, to March 20, 1982, as P.W.-1. He stated on oath that the amounts in dispute were paid just before the order of winding up was passed by this court. He addressed letters to the directors who, in their replies, exhibits P.W.-l, P.W.-2 and P.W.-3, informed him that they never authorised the payments and these were made by the concerned officer without their knowledge or consent. He also deposed that there was no valid authorisation by the board of directors or an order by the managing director for payment of the amount in dispute. In his cross-examination, he admitted that some payments were made to Sarvshri Ashok Gulati and Mohinder Singh and he had also filed claim petitions against them, but he pleaded ignorance if those were dismissed in default His memory failed him when a question was put to him that similar payments were also made to Sarvshri Vijay Sharma, P.R. Azad, Kaul, G.S. Kalra and many others. .
6. Respondent No. 2 appeared as R.W-1 and stated that there was no resolution passed by the board of directors authorising the payments by way of leave encashment, but he stressed that the payments were made by Shri B. M. Pant under directions from Shri Sanjay Gandhi. He further stated that Shri Sasidharan was also paid money on account of leave encashment and Shri Pahuja was paid money on account of leave encashment as well as supervision charges. In his cross-examination he admitted that no written orders were passed by Shri Sanjay Gandhi authorising the payments on account of leave encashment and supervision charges. He admitted that he himself had received some amount on account of leave encashment and supervision charges, which was sanctioned by Shri Pant.
7. Respondent No. 3, Shri B.M. Pant, appeared as R.W.-2. He stated that he was the general manager of petitioner No. 1 from July, 1975, to September, 1977. In his statement, he admitted that till January 19, 1977, bills/ vouchers exceeding Rs. 2,000 used to be signed by Shri Sanjay Gandhi as he was the managing director. Authority for payment of leave encashment or extra payment for supervision was derived under the verbal instructions of Shri Sanjay Gandhi and he had assured that if it became necessary, he would ratify the act at the next meeting of the board of directors. He also stated that the payments were made to Sarvshri Mohinder Singh, Gulati and Ajit Singh towards leave encashment and supervision charges under his signatures. Cases were filed by the official liquidator against these three persons for the recovery of the amount paid to them on account of leave encashment and supervision charges, but he was not aware as to what had happened to those cases. In his cross-examination, he conceded that the cheque for Rs. 5,000, which was drawn in his favour on account of leave encashment, was signed by him and Shri J.K. Pahuja, finance manager.
8. It is correct that the payment towards leave encashment and supervision charges was not made under a regular resolution passed by the board of directors. It is also correct to say that the managing director of petitioner No. 1 did not issue any written orders authorising the payments. The managing director, in his letter dated August 8, 1978 (exhibit P.W.-3), addressed to the official liquidator, stated that the payments were not authorised by him. The conduct of the official liquidator in withdrawing the claim petitions against other employees to whom payments for leave encashment and supervision charges were made speaks for itself. The official liquidator, who was appointed as the provisional liquidator of petitioner No. 1, conveniently thought of withdrawing the claim petitions for the refund of irregular payments on account of leave encashment and supervision charges against some employees and prosecuting similar types of petitions against another set of employees. It appears that the then managing director wanted to compensate some of the officers of the company for the extra work done by them and he ordered payment for leave encashment and supervision charges, but when the company went into liquidation, fearing that he may be held personally liable for these irregular payments, he did not accept the suggestion that the payments were made under his authorisation. There is no plea of lack of bona fides on the part of the officers who had received payments or that they were acting against the interests of the company. In these circumstances, I am of the opinion that the petitioners are not entitled to claim refund of the payments on account of leave encashment and supervision charges from the respondents. Resultantly, issue No. 4 is answered against the petitioners and in favour of the respondents.
9. In view of my finding under issue No. 4, the question of payment of interest on the outstanding dues does not arise. Thus, issue No. 5 is also answered against the petitioners and in favour of the respondents.
10. For the reasons stated above, this petition is dismissed, but without any order as to costs.