M. Jeyapaul, J:— CM No. 13407-C of 2011 1. This application has been filed by the 1st appellant invoking the provisions under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure seeking permission to adduce additional evidence, namely, Memorandum of Association and Articles of Association, of the 1st defendant-M/s Crucible Steels India Private Limited. 2. It has been contended that the Memorandum of Association and Articles of Association could not be produced despite the exercise of due diligence as the aforesaid company was incorporated a long time ago. It is further submitted that in order to decide the controversy as to whether the appellants are personally liable to pay the suit amount, those documents are very much required. 3. I heard the submissions made on either side. 4. The suit has been filed on 7.9.1982 in connection with the suit transaction which took place on 14.1.1981. The present second appeal was preferred in the year 1987 but the above application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure was filed by the 1st appellant only on 20.11.2011. In other words, the present application has been filed about 29 years after filing of the suit. The 1st appellant was the constituted attorney and the 2nd appellant was the Managing Director of the 1st defendant-company. Very strangely, it has been contended that the appellants exercised due diligence but in spite of that, they could not produce the Memorandum of Association and Articles of Association of the said company in which they occupied the highest position. Firstly, I find that the appellants have come out with those documents after about 29 years in order to fill up the lacuna in their defence and secondly, the appellants have withheld wantedly those two documents in spite of the fact that the suit has been filed seeking a money decree as against them also. I do not find any reason nor is there any justification to entertain the present application at this distance in time. Therefore, the application stands dismissed. RSA No. 3832 of 1987: 5. The 2nd defendant-constituted attorney and the 4th defendant- Managing Director of 1st defendant, namely, M/s Crucible Steels India Private Limited (in short, 1st defendant-company) have preferred the present second appeal having suffered a money decree at the hands of the State Bank of Patiala. 6. Therefore, the application stands dismissed. RSA No. 3832 of 1987: 5. The 2nd defendant-constituted attorney and the 4th defendant- Managing Director of 1st defendant, namely, M/s Crucible Steels India Private Limited (in short, 1st defendant-company) have preferred the present second appeal having suffered a money decree at the hands of the State Bank of Patiala. 6. It has been contended in the plaint that the 4th defendant- Managing Director of the 1st defendant-company opened a current account with the plaintiff-bank on 9.11.1979. 2nd defendant was the attorney of the 1st defendant. The bill discounting facility was granted to defendants 1 to 4 and the 2nd defendant was authorized to operate the account. Three bills were purchased by the plaintiff-bank on 14.1.1981. The bills were sent for collection of the proceeds to the bankers of the 1st defendant at Calcutta. The bills for Rs.67,288/-, Rs.10,808/- and Rs.72,904/- were returned unpaid. The fixed deposit receipts worth Rs.1,00,000/- in the name of 2nd and 4th defendants were adjusted towards the said amount due to the bank. On 23.5.1981, the balance amount of Rs.2,10,000/- was found due and payable by the defendants. 2nd defendant issued a cheque dated 22.4.1982 for Rs.45,000/- for adjustment but the said cheque remained unpaid. After issuing legal notice to the defendants who made default in adjusting the said amount, the suit was filed by the plaintiff-bank. 7. Defendants 1 to 4 filed joint written statement wherein they have pleaded that the suit was bad for misjoinder of parties. The rate of interest claimed by the plaintiff was also challenged. It was contended that blank documents were signed by the defendants. Defendants 1 to 4 sought for dismissal of the suit. 8. The Courts below have held that defendants 2 and 4 were also jointly and severally liable to pay the suit amount with interest and costs along with the 1st and 3rd defendants. 9. At the time of admission of the second appeal way back on 20.1.1988, no substantial questions of law were formulated by this Court. Therefore, the following substantial questions of law are formulated for determination in this appeal:- (1)Whether the Courts below have misread the evidence on record and rendered perverse finding. (2)Whether the constituted attorney and the Managing Director of the company could be held liable to pay the suit amount jointly and severally with the company. 10. Therefore, the following substantial questions of law are formulated for determination in this appeal:- (1)Whether the Courts below have misread the evidence on record and rendered perverse finding. (2)Whether the constituted attorney and the Managing Director of the company could be held liable to pay the suit amount jointly and severally with the company. 10. Learned counsel appearing for the appellants would submit that M/s Crucible Steels India Private Limited has since been dissolved. After all, the 2nd defendant was only the constituted attorney and the 4th defendant was the Managing Director of the company. At best, they could be held to have clinched the transaction with the plaintiff on behalf of M/s Crucible Steels India Private Limited in their capacity as agents thereof. Referring to Section 230 of the Indian Contract Act, 1872, he would submit that the 2nd and 4th defendants being the agents, cannot be personally liable to pay the amount due and payable by the 1st defendant company. He also drew the attention of this Court to Section 322 of the Companies Act, 1956, and submitted that the 2nd and 4th defendants whose liabilities were not unlimited as per the Memorandum cannot be held liable to pay the suit amount liable to be paid by the 1st defendant-company. He would also submit that the Courts below having simply referred to the innocuous documents Exhibits P-14 to P-16, arrived at the conclusion that the 2nd and 4th defendants stood as guarantors. Therefore, it is his submission that the Courts below have totally misread the evidence and the provisions of law in the Indian Contract Act and the Companies Act and rendered perverse findings. 11. Learned counsel appearing for the 1st respondent-State Bank of Patiala would submit that the appellants had played a fraud upon the bank after availing bill discounting facility for their company called M/s Crucible Steels India Private Limited. He would submit that the conduct of the appellants had been taken note of by the Courts below and it was held that they stood guarantors for the bill discounting transaction. 2nd and 4th defendants had never acted as Agents. Therefore, the provisions under Section 230 of the Indian Contract Act would not apply to the case in hand. He would submit that the conduct of the appellants had been taken note of by the Courts below and it was held that they stood guarantors for the bill discounting transaction. 2nd and 4th defendants had never acted as Agents. Therefore, the provisions under Section 230 of the Indian Contract Act would not apply to the case in hand. He would also submit that Section 322 of the Companies Act cannot be invoked as 2nd and 4th defendants never chose to file the Memorandum of Association and Articles of Association before the trial Court. The appeal merits dismissal, he would submit. 12. It is found from the evidence of PW-3 I.C.Wadhawana, an official of the plaintiff-bank that the 1st defendant-company opened a current account with the plaintiff-bank only through its constituted attorney- 2nd defendant and its Managing Director-4th defendant in the suit. When the bills purchased by the plaintiff-bank were sent for collection of the proceeds to the bankers of the 1st defendant at Calcutta, they were returned unpaid and therefore, the same could not be settled and adjusted. When the defendants received an intimation, 2nd and 4th defendants who had fixed deposit receipts in their individual names, shot off letters, Exhibits P-14 and P-15 respectively, to the plaintiff-bank requesting it to adjust these two fixed deposit receipts towards the amount due and payable by their company, namely, M/s Crucible Steels India Private Limited. Thus, the total proceeds of the fixed deposit receipts in the individual names of 2nd and 4th defendants to the tune of Rs.1,00,000/- were adjusted towards part of the amount payable by M/s Crucible Steels India Private Limited. 13. If at all defendants 2 and 4 acted as Agents of the defendant company, they would not have chosen to request the bank to adjust the fixed deposit in their individual names. The 2nd defendant on behalf of defendant No.1-company sent a letter Exhibit P-16 admitting the entire liability payable to the bank. The above conduct of the 2nd and 4th defendants in the matter of opening of accounts in the name of the company and also in the matter of discharging liability of the company, would go to show that they had undertaken to liquidate the liability of defendant No.1-M/s Crucible Steels India Private Limited wherein they were the constituted attorney and the Managing Director respectively. Therefore, in my considered view, the Courts below have rightly held that the 2nd and 4th defendants traversed beyond their role in the 1st defendant-company and undertake to pay the amount liable to be paid by the company. Therefore, 2nd and 4th defendants are jointly and severally liable to answer the suit amount. 14. Of course as per Section 230 of the Indian Contract Act,1872, an agent cannot be personally held liable to pay the amount due and payable by his principal unless there was some contract to the contrary entered into by the agent with the principal. In my considered view, the conduct of 2nd and 4th defendants would go to show that they had not acted as Agents of the company. They had taken up the whole responsibility of the company in arranging the bill discounting facility from the plaintiff-bank and repaying in part the amount payable by the company. It is to be noted that all the Directors, Managing Directors and the constituted Attorneys cannot be classified as Agents of the company. 15. Learned counsel appearing for the appellants then submitted a decision of the Calcutta High Court in Steel Authority of India Limited v. Transworld Marine Limited AIR 1982 Calcutta 161. That was a case where the suit was filed by the Steel Authority of India as against the Agent also for liability of the principal to pay damages but the Court held that the Agent in view of the mischief of Section 230 of the Indian Contract Act, 1872, is not liable to answer the claim for damages filed as against the principal. The above decision, in my considered view, would not apply to the facts of this case inasmuch as the present suit was not filed as against the Agent for recovery of the amount due and payble by the company. 16. Learned counsel appearing for the appellants also drew the attention of this Court to a decision of the Madras High Court in The Pudukottah Textiles Limited v. B.R.Adityan (1975) 1 PLJ-356. That was a case where the High Court of Madras found from the conduct of the Director Incharge of the company that he functioned as an Agent of the company though normally a Director of the company was not an Agent of the company. That was a case where the High Court of Madras found from the conduct of the Director Incharge of the company that he functioned as an Agent of the company though normally a Director of the company was not an Agent of the company. Under such circumstances, the High Court of Madras held that the Director Incharge of the company who acted only as an Agent of the company was not liable to pay the amount owed by the company as per the ambit of Section 230 of the Indian Contract Act. But in the instant case, it is found from the communication under Exhibits P-14 and P-15 that the 2nd and 4th defendants had taken upon themselves the personal responsibility of honouring the commitment of the company which opened bill discounting facility through them. Therefore, the aforesaid decision also will have no application to the facts and circumstances of this case. 17. The Courts below after taking note of the conduct of the appellants have rightly held that the 2nd and 4th defendants stood guarantors for the bill discounting transaction and that they had never acted as Agents. Therefore, the provisions under Section 230 of the Indian Contract Act would not apply to the case in hand. Section 322 of the Companies Act cannot be invoked as 2nd and 4th defendants never chose to file the Memorandum of Association and Articles of Association before the trial Court. 18. In spite of their undertaking to liquidate the debt, the appellants had forced the public sector bank to loiter in the corridors of the Courts for 33 long years. The money collected from the public and kept by the public sector bank in trust was lent to defendants 1 to 4 in the shape of bill discounting facility but they have played hide and seek throughout this period and the public sector bank could not realize the amount so far. The 1st defendant-company itself has been dissolved and defendants 2 and 4 have now set up a plea that they also were not liable personally to pay any amount. Very unfortunately, 2nd and 4th defendants refused to shoulder any responsibility in spite of the fact that the 1st defendant-company has since been dissolved. The 1st defendant-company itself has been dissolved and defendants 2 and 4 have now set up a plea that they also were not liable personally to pay any amount. Very unfortunately, 2nd and 4th defendants refused to shoulder any responsibility in spite of the fact that the 1st defendant-company has since been dissolved. Nothing was brought to the notice of the plaintiff-bank or the Court as to which Director of the company or Managing Director of the company or constituted attorney of the company was fastened with the liability to pay the amount due to the plaintiff-bank on its dissolution. The defendants have not chosen to file the Memorandum of Association to establish before the Court that they had only limited liability in the 1st defendant-company. As the best evidence available with the 2nd and 4th defendants had been withheld by them, the Court will have to presume that 2nd and 4th defendants had been fastened with unlimited liability to answer the claim made as against the company. Therefore, the 2nd and 4th defendants cannot bank on the provisions under Section 322 of the Companies Act, 1956, to canvass the point that their liability had been restricted as per provisions of the Memorandum of Association and the Articles of Association. 19. In view of the above, I find that the Courts below have rightly held that 2nd and 4th defendants had undertaken to liquidate the liability of the company on the basis of their conduct. Further, this Court holds in the absence of Memorandum of Association and Articles of Association that the liabilities of 2nd and 4th defendants are unlimited and therefore, they are jointly and severally liable along with the company to pay the amount due to the plaintiff-bank. I do not find that the Courts below have misread the evidence and rendered a perverse finding as contended by 2nd and 4th defendants. The substantial questions of law formulated by this Court are thus, answered in favour of the plaintiff-bank and against the defendants. Consequently, the appeal stands dismissed with costs.