ORDER P.T. Raman Nayar, J. 1. By these proceedings under section 235 of the Indian Companies Act, 1913, the liquidator seeks to recover six sums of money from the respondent who was a Director of the banking company that is being wound up. With regard to three of these sums, items 2, 3 and 4, the respondent has succeeded in showing, with reference to the books of the bank, that although he took the moneys from one or the other of the branches of the bank, he duly paid them into another, and that he acted only as a- messenger for effecting the transfer of the funds. Therefore, these items are not pressed ; and that leaves us with items 1, 5 and 6. 2. Item 1 is a sum of Rs. 902-10-8 admittedly due from the respondent on an overdraft. The overdraft had been duly sanctioned ; and there was nothing in the law then prohibiting borrowings by a Director section 20 of the Banking Companies Act came into force only later. The transaction is therefore just an ordinary borrowing transaction, and no blame attaches to the respondent so as to bring the case within section 235 of the Act. The claim in respect of this item has therefore to be rejected. 3. I am told on behalf of the liquidator that, so far as this item is concerned, I should regard his application as one under section 186 of the Act and this course is commended for my acceptance on the score of, advantage to the company in that it would deprive the respondent of the set-off he has claimed in respect or certain sums due to him. But, in fact, this is not an application under section 186, and up to now no amendment has been sought for making it one. Moreover, the power of court to order payment under section 186 is discretionary: and, as laid down In re Benares Bank Ltd. A.I.R. 1940 All. But, in fact, this is not an application under section 186, and up to now no amendment has been sought for making it one. Moreover, the power of court to order payment under section 186 is discretionary: and, as laid down In re Benares Bank Ltd. A.I.R. 1940 All. 544 F.B following the dictum of Lord Russell of Killowen, in Hansraj Gupta v. Dehra Dun M.E.T.O. A.I.R. 1933 P.C. 63 at 65 the Court " may refuse to act under the section, leaving the liquidator to sue the name of the company, and it will readily take that, course in any case in which it is made apparent that the respondent under this procedure, if continued, would be deprived of some defence or answer open to him in a suit for the same moneys ". That by acting under section 186. I would be depriving the respondent of the set-off which he would get in a suit is therefore a reason for declining to act, rather than for acting, under that section. And I might add as another reason that an application now brought under section 186 would fail since a suit for the money would be barred by time. All this apart, it is brought to my notice that no list of contributories has yet been settled for this company ; and that being so there is no question of section 185 applying to the case even if I were inclined to apply it. 4. Items 5 and 6 stand on much the same footing. The former relates to a credit of Rs. 1,600 to the respondent's current account on 29th April 1950 by the entry Ext. K. This went in reduction of his overdraft. The respondent did not actually make any such payment into his current account. His case is that a sum of Rs. 2,000 was due to him from the bank by way of out-of-pocket expenses for which he had rendered an account to the Managing Director. On this account he was sanctioned and was paid Rs. 1,600. The payment was by adjustment, and that is the credit in question. Ext. K describes the credit as "By remittance ". The transaction however finds place in the day book of the bank only on 21st July 1950 under Ext. Q where the sum of Rs. On this account he was sanctioned and was paid Rs. 1,600. The payment was by adjustment, and that is the credit in question. Ext. K describes the credit as "By remittance ". The transaction however finds place in the day book of the bank only on 21st July 1950 under Ext. Q where the sum of Rs. 1,600 is shown as paid to the respondent on account of salary and as received from him towards his overdraft. The respondent's case both in the counter-affidavit and in his evidence that he was not entitled to any salary but that the amount was paid to him in re-imbursement of expenses incurred by him on behalf of the Bank. Actually he has been able to produce no evidence beyond his bare word of mouth either in proof of these alleged expenses or in proof of their having been sanctioned by the Bank. The position then is that nothing was due to him from the Bank ; and yet, in effect, he took Rs. 1,600 from the bank and put it into his current account. 5. Item 6 is a similar credit of Rs. 546-14-0 on the same day by the entry, Ext K1. It is said therein that the credit is on account of excess interest. The respondent has come forward with two inconsistent versions, one in his counter-affidavit and the other in his evidence, as to how this excess interest came to be charged against him. It is unnecessary to go into these versions for he has been unable to adduce any evidence beyond his bare oral assertions in proof of either. It would therefore follow that in this case also the respondent was given an undue credit. 6. What then is the proper order to be passed with regard to these two credit entries? Is it, as urged on behalf of the respondent, that the entries should be struck off leaving the bank to recover the sums as part of the overdraft with the result that the respondent would be enabled to claim set-off in respect of the sums due to him? Or, is it as urged on behalf of the Liquidator that these sums should be recovered from the respondent under section 235 of the Act in which case, of course, the respondent can have no set-off. I have no doubt that the latter is the proper course. Or, is it as urged on behalf of the Liquidator that these sums should be recovered from the respondent under section 235 of the Act in which case, of course, the respondent can have no set-off. I have no doubt that the latter is the proper course. The effect of the credit entries was, as the respondent himself has asserted, to transfer the monies of the bank to his own personal fund; and since the respondent had no right to the monies it is as much a misapplication of the funds of the bank as if the respondent had taken the money in cash and used it for his own personal purposes. It is true that the respondent has said in his evidence that he was not responsible for making the entries in question. But the point to note is that he has at no time said that the entries were made without his knowledge or authority, and that, far from repudiating the entries and disclaiming any benefit thereunder, he has all along affirmed the entries as being payments by the adjustment of monies due to him from the Bank. I see no merit in the contention that the respondent did not actually take away the money and that he left it with the Bank although to the credit of his personal account. Nor in the contention that an order cancelling the two credit entries in favour of the respondent and the corresponding debit entries against the bank would place the bank and the respondent in the same position as if the transactions complained of had never been effected. As I have already indicated it is as if the respondent had withdrawn the two sums in cash and had then paid them into his account. This is not a case of a mere mistake being rectified and the status quo ante being restored by a reversal of the entries. As a Director of the Bank who has misapplied its funds the respondent must restore those funds and be left to take such benefit as he can get from the entries to his credit. There can be no question of allowing the respondent any set-off, and hence his counter-claim does not arise for consideration. 7. There will be an order directing the respondent to pay the Liquidator the two sums of Rs. 1,600 and Rs. There can be no question of allowing the respondent any set-off, and hence his counter-claim does not arise for consideration. 7. There will be an order directing the respondent to pay the Liquidator the two sums of Rs. 1,600 and Rs. 546-14-0 with interest on these sums at six per cent per annum from 29th April 1950, the date of their misapplication. The respondent will pay the Liquidator the costs of these proceedings. Advocate's fee Rs. 50.