2011 (4) TMI 1207 - HC - Companies Law

Winding up official liquidator is seeking to incorporate the amendment by way of adding additional prayers Period of limitation - Held that - official liquidator was required to file the application within five years from the date of winding up order namely March 7 2005 and it has been filed in C. A. No. 130 of 2010 on March 1 2010. The present application seeking amendment has been presented by the official liquidator for raising certain additional points based on the chartered accountant s report dated September 17 2010. Time commenced between commencement of winding up and the date of winding up order i.e. July 22 2002 to March 7 2005 which would be two years and 8 months of which this court is not concerned with in this application. The application which has been filed on September 17 2010 is to be held as filed within the period of limitation since the benefit of exclusion provided under section 458A provisions of section 458A would be applicable to proceeding of misfeasance instituted by the official liquidator. that application filed by the official liquidator for amendments within the period of limitation. Appal allowed

Issues Involved:
1. Deletion of specific paragraphs from the points of claims and prayer column in C.A. No. 130 of 2010.
2. Insertion of new prayers in the prayer column of C.A. No. 130 of 2010.
3. Determination of whether the application is time-barred under section 543(2) of the Companies Act, 1956, and the applicability of section 458A for exclusion of time in computing the period of limitation.

Issue-wise Detailed Analysis:

1. Deletion of Specific Paragraphs from Points of Claims and Prayer Column in C.A. No. 130 of 2010:
The official liquidator filed an application under Order 6, rule 17 of the Code of Civil Procedure, 1908, read with rules 6 and 7 of the Companies (Court) Rules, 1959, seeking to delete certain paragraphs from the points of claims and prayer column in C.A. No. 130 of 2010. The paragraphs sought to be deleted are 9(a), (b), (d), (e), and (f) in the points of claims, and paragraphs 10, 11, and 12 in the points of claims, as well as paragraphs 3, 5, 6, 7, and 8 in the prayer column.

2. Insertion of New Prayers in the Prayer Column of C.A. No. 130 of 2010:
The official liquidator also sought to insert new paragraphs in the prayer column after prayer (8) in C.A. No. 130 of 2010. These new prayers included directions for the ex-directors to make good specific amounts of money, jointly or severally, to the official liquidator with interest at 18% per annum or any other rate as the court may fix from the date of winding up.

3. Determination of Whether the Application is Time-Barred Under Section 543(2) of the Companies Act, 1956, and the Applicability of Section 458A for Exclusion of Time in Computing the Period of Limitation:
The core issue was whether the application filed by the official liquidator had become time-barred by virtue of section 543(2) of the Companies Act, 1956, and whether the official liquidator could invoke section 458A for exclusion of time in computing the period of limitation.

The respondents contended that the amendments sought were barred by limitation and thus impermissible. They argued that section 543(2) is a self-contained code prescribing a five-year limitation period for filing an application for misfeasance or breach of trust, and section 458A's exclusion clause could not be applied to extend this period.

Conversely, the official liquidator argued that section 458A should be read in conjunction with section 543, allowing for the exclusion of one year from the date of the winding-up order in computing the limitation period.

Legal Provisions and Judicial Precedents:
Sections 446, 458A, and 543(1) and (2) of the Companies Act were examined. Section 543(2) provides a five-year limitation period for filing an application for misfeasance or breach of trust, commencing from the date of the winding-up order, the first appointment of the liquidator, or the misapplication, retainer, misfeasance, or breach of trust, whichever is longer. Section 458A, which starts with a non obstante clause, excludes the period from the date of commencement of winding up to the date of the winding-up order and an additional year from the date of the winding-up order in computing the period of limitation.

The court referred to the Supreme Court judgments in *Karnataka Steel & Wire Products v. Kohinoor Rolling Shutters & Engg. Works* and *Ajay G. Podar v. Official Liquidator, J.S. & W.M.*, which clarified that section 458A excludes specific periods in computing the limitation period for applications filed in the name and on behalf of the company in liquidation.

Court's Conclusion:
The court concluded that the application filed by the official liquidator on March 1, 2010, was within the five-year limitation period prescribed under section 543(2), considering the exclusion period provided under section 458A. The official liquidator's application for amendments, based on the chartered accountant's report dated September 17, 2010, was filed within the period of limitation. Thus, the application for amendments was allowed.

Order:
1. C.A. No. 782 of 2010 was allowed.
2. The official liquidator was directed to make necessary endorsements in the original application C.A. 130 of 2010 by filing the amended application.
3. The respondents were granted liberty to file an additional written statement to the amended application.

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