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1933 (7) TMI 9

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..... in Khan, the chairman of the board of directors, was at first appointed as the liquidator. Later on, on application made to the High Court there was an order passed on July 5, 1929, for a compulsory winding-up and an official liquidator, Mr. Hazari Lal Kapoor, was appointed by the High Court. On May 28, 1930, the official liquidator filed an application under Section 235 of the Indian Companies Act against the managing agents charging them with various acts of misfeasance, misappropriation, negligence of duty and so on. The question of limitation has arisen in connection with this application. Admittedly the section which is applicable to this case is Section 235 of the Indian Companies Act. This section is a verbatim copy of the provision of Section 276 of the English Act of 1929, with this exception that there is an additional Sub section (3) in the Indian Act. So far as the main language of the section is concerned, it was copied out in the corresponding Section 214 of Act VI of 1882 from Section 165 of the English Act of 1862. At one stage there was some doubt whether there was any limitation applicable to applications made under the old section 214 of the Indian Companies .....

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..... icle 120, and that the right to sue under that Article would accrue only after the appointment of the liquidator, if not, after he discovers the Misapplication of the money. The learned Judges expressly dissented from the view expressed by the Lahore High Court in the case quoted above. The matter again arose in the case of Bhim Singh v. Official Liquidator, Union Bank of India Ltd. (I.L.R. 8 Lah. 167) which was also a case of an application under Section 235 of the Indian Companies Act in respect of an act of misfeasance complained of against a director. The learned Judges of the Lahore High Court adhered to the opinion previously expressed and held that the section merely provided a summary remedy of enforcing the existing rights which, apart from the section, might have been vindicated by means of a suit and that the Article applicable was Article 36 of the Limitation Act with the starting point from the date of the act of the misfeasance. The question also arose before the Madras High Court in -the case of Narasimha Ayyangar v. Official Assignee of Madras (I.L.R. 54 Mad. 153) which was a case of an application under Section 235 made against the directors of the Comp .....

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..... to enact that where there would be a bar to a company to recover a just claim, it would not be a bar to a director or a contributory. Their conclusion was that Section 235 enables any of the three classes of persons mentioned therein to recover what could not be recovered under the general law. Examining the words of the section the learned Judges came to the conclusion that the right which the section gives is not given to the company but to the persons named in the section. They pointed out that under the Act the Legislature has made provisions, for instance, in Section 156 for making the ordinary law of limitation inapplicable by creating a fresh liability and they also relied on the circumstance that according to the rulings of this Court it had been held that there was a fresh start for the purposes of limitation in the case of an application under Section 186 of the Act. Dealing with the question of the applicability of the particular Article of the Limitation Act it was pointed out that Article 36 would be inapplicable because it could only apply when the misfeasance would be independent of a contract; whereas in the case of directors, who are governed by the Articles of A .....

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..... s name: (2) it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new right, (3) The power of the Court to order payment is discretionary. It may refuse to act under the section, leaving the liquidator to sue in 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." The implications of these observations would be considered when I come to consider the provisions of Section 235. It may be pointed out at this stage that their Lordships went on to observe that the old Section 101 of the English Act of 1862 corresponding to Section 186 of the Indian Act had been judicially interpreted and administered in accordance with the views expressed in Stringer's case, namely, that the section is one which provides summary proceedings against contributories to avoid proceedings in different Courts and to permit a single proceeding in the winding-up Court but "In t .....

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..... section lays down and prescribes as special procedure and does not create any new right. Pollock, M.R., with reference to Section 215, which corresponds to Section 235 of the Indian Act, remarked: "I desire to say, though this is not the first time that this has been said, that that section deals only with procedure and does not give any new rights. It provides a summary made of enforcing existing rights." The learned Judge then pointed out that this was abundantely clear from a string of authorities in the English Courts. He also quoted the words of Lord Macnaghten in the case of Cavendish Bentinck v. Fenn (12 A.C. 652 at 669) that 'that section creates no new offence, and........it gives no new rights, but only provides a summary and efficient remedy in respect of rights which apart, from that section, might have been vindicated either at law or in equity.' He did not at all quote the remarks of Lord Herschell in the same case which were somewhat differently worded. Warrington, L.J., at page 526, observed: 'I need not read it (Section 215) again, it has been read very often, and it has already been accepted as stating, and accurately stating, what was the settled la .....

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..... 235 contains such a restriction. But both these sections empower the Court to make an order against the person complained against and neither of them profess to confer a new right on the person applying. Section 235 merely says: 'The Court may, on the application of the liquidator, or of any creditor or contributory, examine into the conduct of the promotor, director, manager, liquidator or officer and compel him to pay or restore the money etc' It really gives a discretion to the Court to make the order; but the significance of the expression 'on the application of the liquidator' is to restrict the power of the Court so as to prevent it from proceeding suo motu without any application before it. Before the Court should start an investigation, there should be some person before it who would be ultimately responsible for the costs in case the application does not succeed; whereas in a proceeding under Section 186 the contributories are already on the register and it is known how much they have paid and how much they have not paid and an elaborate investigation of the kind required under Section 235 is therefore not called for. Merely because the section says 'on the applicat .....

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..... ve been wholly inapplicable and could not have created any bar. Similarly in view of the course of decisions in India, the applicability of Article 181 would have been equally doubtful. It has been held that in view of the fact that all the preceding Articles apply to applications made under the Code of Civil Procedure, Article 181 also applies to other applications under the same Code, i.e ., the application contemplated therein is ejusdem generis with the other applications which are specially specified. In this view of the matter even Article 181 would not have been applicable. The result would have been that there would perhaps be no limitation at all. Then the observation of their Lordships that the well established practice that the court should not exercise its discretion but readily take the course of leaving the applicant to seek his remedy independently so as not to deprive the opposite party of some defence or answer open to him in a suit, would have applied with full force. The Legislature has, however, expressly added Sub-section (3) which makes the Limitation Act applicable to an application under the section as if such application were a suit. The object obvious .....

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..... f the company is conferred upon him by Section 179 of the Act. It, therefore, follows that whatever suit he files or whatever legal proceeding, civil or criminal he takes, he must take it in the name and on behalf of the company. No doubt the liquidator is an officer of the court having been appointed by the court, and he is under the direction and control of the court. But when a proceeding is started by him, that proceeding is not initiated in his personal capacity but in the name and on behalf of the company, and it must be deemed as if the proceeding is being continued not only in the interest of the company but actually by the company through its liquidator. The fact that the present liquidator can file an application against a past liquidator also shows that the application must be deemed to be in the interest of and on behalf of the company and not in his personal right or capacity. There is no right in a liquidator as against a previous liquidator who has retired. No doubt under Section 235 persons other than the liquidator, namely, a creditor or a contributory also can apply. But, in my opinion, similar considerations apply to these applicants as well. There is no right .....

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..... gainst whom an application is made which would be open to him in a regular suit under the Indian Limitation Act. The learned counsel for the liquidator then argued that even if in one sense no new right be held to have been created by Section 235, nevertheless the section necessarily gives a fresh start to the liquidator, creditor and contributory, because they have a right to file an application under this section and that right cannot be exercised till the liquidation proceedings have started. It seems to me that only when a new right is really created by this section, that there can be a new start for the purposes of limitation. But if no new right has been created at all, and only a summary procedure has been prescribed and a new forum has been created to which recourse may be had, then there is not necessarily a new start for purpose of limitation. If one were to concede that a new right is created resulting in a new start for purposes of limitation, the result would be that every applicant may have a fresh and a different starting point. For instance, there may be thousands of contributories in a company and if under the Articles of Association the relation of principal and a .....

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..... ight of the applicant. This section allows proceedings to be taken not only against a director, past or present, or manager, but also against officers of the company. If the view advocated for by the learned counsel for the liquidator were accepted, a transaction which is many years old may be re-opened and people, who have ceased to have any connection with the company, may be brought in again and asked to explain their conduct and justify it after the lapse of a large number of years. No doubt in special cases the court has discretion to refuse to inquire into a stale claim. But if a court is determined to brush aside all considerations of limitation, there would be nothing to prevent it from calling upon such persons to vindicate their conduct in respect of matters which took place long long ago. Had the intention of the Legislature been to give a power to the court, if it so decides to re-open old questions, there would have been no necessity to add Sub-section (3) in it. It would have been quite sufficient to say that the court may, when it considers fit, investigate into the conduct of the persons complained against. It may be pointed out that if a new right were created in .....

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..... are started. It is the duty of the liquidator as well as the share-holders and creditors to act promptly and discover acts of misconduct and seek relief forthwith. If they allow the opportunity to pass away, they have themselves to thank for. Similarly in the case of past directors it is the duty of the present directors to proceed inasmuch as they represent the company. In the case of the present directors, even if they be not considered to be trustees, they may well be agents of the share-holders and time may not begin to run against them till this agency terminates or knowledge is brought home to liquidators and share-holders. I do not see that there is any particular hardship or impracticability in holding that the law of limitation has been left altogether unaltered by the provisions of Section 235. The question what should be the starting point for purpose of limitation would, of course, depend on the particular Article which applies to the facts of that case. It cannot be laid down broadly that no other special Article can ever apply and only Article 120 would apply. Creditors and contributories existed before the company came into liquidation. The liquidator is, of cou .....

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..... ight to apply accrued which time would not be earlier than the date of the winding-up order. That observation is obviously intended to mean that if there were a new right to apply under Article 181, that right, of course, would not have accrued earlier than the date when the person applying could have made the application. It may also be pointed out that out of the Articles in the Limitation Act applicable to applications there is none which can apply to an application under Section 186 except Article 181; whereas there are numerous Articles prescribed for suits which may apply to a suit against directors, contributories, managers etc., contemplated by Section 235, which are other than Article 120. It, therefore, seems to me that although the recent case decided by their Lordships of the Privy Council was a case under Section 186 of the Act, the principles laid down therein are of equal application to Section 235, and, therefore, in one sense it may be said that by implication the cases of this Court have been overruled. But even assuming that those cases have not by implication been overruled, it seems to me that the principles laid down therein compel me to put a similar interp .....

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..... The point before the Full Bench is one of limitation. The plea of limitation was not urged in the court below and was not urged as one of the grounds of appeal in this Court. But in view of a certain recent decision of their Lordships of the Privy Council to be noticed later on, a plea of limitation was taken, and the learned counsel for the appellant has been heard on that plea. In two cases decided in this Court it was held that the misfeasance application under Section 235 is governed by Article 120 of the Limitation Act and the starting point of limitation is the appointment of the official liquidator. To both these decisions I happened to be a party. The earlier decision is In the matter of the Union Bank Ltd., Allahabad, and the later decision is unreported and will be found in the case of Official Liquidator of Jaunpur Sugar Factory v. Bihari and Co. I have heard the learned counsel for the appellant at length and had the benefit of discussion on his part of the recent Privy Council judgment in Hansraj Gupta v. The Official Liquidators of the Dehra Dun Mussoorie Electric Tramway Company Ltd. Having regard to certain remarks to be noticed later on, contained .....

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..... he learned Judge, who heard the application, in the first instance, was of opinion that the remedy of the liquidator lay by a suit and not by an application. In appeal the question was whether an application was a proper remedy and in deciding that it was, the following remarks were made: 'In those summary proceedings every objection is just as open to the person sought to be charged as it would have been if a bill had been filed'. Their Lordships pointed out that if a suit had been filed on behalf of and in the name of the company by the official liquidators against Hansraj Gupta, Hansraj Gupta would have had a defence by way of limitation; and, therefore, the Judges of the High Court were not right in holding that there was no question of limitation after the winding-up order had been made provided that the claim was not barred at the date of the winding-up order. Beyond this, the decision of their Lordships' judgment does not go. It is true that in dealing with the section corresponding to Section 186 of the Indian Companies Act, their Lordships said that three things were certain, on the decisions given in England, one being that the section created only a special proced .....

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..... at the end of Sub-section (3), Section 235, namely, "and it was a suit in the name and on behalf of the company". Thus the entire Sub-section, according to the argument of the learned council for the appellant, should be read as follows: (3) The Indian Limitation Act 1908 shall apply to an application under this section as if such application were a suit and a suit in the name and on behalf of the company. I will notice his arguments in detail and try to find out whether there can be any justification for such an addition. Ordinarily I may point out, it is against all canons of interpretation to read additional words in an enactment of the Legislature. The argument of the learned counsel for the appellant is this. Section 235 is only a provision prescribing a procedure and is a procedure in addition to the remedy which is open to the applicant by way of suit. He argued that it was open to the liquidator to bring a suit and his remedy was not confined to an application under Section 235. This may be the case with the liquidator, but what about the "creditor" and the "contributory?" Could a creditor, independently of Section 235, bring a suit in a court of ordinary jurisdicti .....

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..... reditor; there may be an application by the contributory; there may be an application by the liquidator. In each case it is the creditor or the contributory or the liquidator who is to figure as the plaintiff and not the company. There is yet another answer to the arguments of the learned counsel for the appellant. He says that the application is to be deemed to be a suit by or on behalf of the company. As to the liquidator, it may be suggested that he is allowed to maintain an application or a suit in the name or on behalf of the company. This is stated in Section 179, Clause ( a ) of the Indian Companies Act. But what about the creditor? What about the contributory? Is a creditor entitled to maintain a suit in the name and on behalf of the company? Is a contributory entitled to maintain a suit in the name and on behalf of the company? At least I have not been able to find any warrant for such a proposition and none has been placed before us. The argument is that every one of these three is maintaining the application for the benefit of the company. This is undoubtedly true. But what was the necessity of mentioning the three individuals by name if it was going to be an applicati .....

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..... at it had given relief to the persons to be proceeded against in a misfeasance case by saying that it would be open to him to plead limitation. If, as the result of judgments of the courts, it is found that the relief is not adequate, it would be open to the Legislature to step in and to give further relief. I may point out that it is open to the court to refuse to proceed where the, claim of the official liquidator or the creditor or the contributory is stale. In the instance given by Dr. Katju, namely where a promoter has left the company thirty years ago, the court will probably refuse to investigate into the actions of the promoters. When the company had been insolvent circumstances for twenty years and nobody thought it fit to proceed against the promoters, the Court would be justified in refusing an investigation. Then, Section 281 of the Indian Companies Act provides some relief in certain cases. However, we cannot interpret the statute law on grounds of mere harshness or hard cases. Then it was argued that if a contributory or a creditor or a liquidator, each comes forward with an application against, say, an ex-director, there may be different rules of limitation for d .....

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..... d still be open to a contributory or to a creditor to come and make an application under Section 235. In article 120 in third column the words are " when the right to sue accrues ". This would not mean the right to sue as it accrues to the individual who is suing, but to him or to his predecessor-in-title or to any person generally who would be interested instituting a suit. A right to sue within the meaning of Section 235, Sub-section (3) of the Indian Companies Act would accrue even if there were no liquidators, no creditors and no contributories. If this argument be correct, then the date when the right to sue accrues is definitely fixed for all possible applicants. The argument would thus fail that in the case of successive liquidators the date when the right to sue accrues would be different or the date when the right to sue accrues would be different or the date when the right to sue accrues to a creditor or to a contributory may be different from the date when the right to sue accrues to a liquidator. I have already spoken at length and I do not wish to prolong my judgment. I am of opinion that the only Article applicable to an application like the one out of which the app .....

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..... erial for our purpose, runs as follows: 1.Where in the case of winding-up a company it appears that any person who has taken a part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company, has misapplied, retained or become liable or accountable for any money or property of the company or been guilty of any misfeasance or breach of trust in relation to the company, the court may, on the application of the liquidator or of any creditor or contributory, examine the conduct of the promoter, director, manager, liquidator or officer and compel him to pay and restore the money or property or any part thereof respectively, with interest at such rate as the court thinks fit or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust as the court thinks just. 2............................................................... 3.The Indian Limitation Act, 1908 shall apply to an application under this section, as if such application were a suit. It will be noticed that in the particular cases mentioned in the section, th .....

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..... liquidator is in no sense a representative of the company. Section 175 of the Act says as follows: For the purpose of conducting the proceedings in winding up a company and performing such duties in reference thereto as the court may impose, the court may appoint a person or persons called an official liquidator or official liquidators. If this rule of law defines the position of an official liquidator, it is impossible to say that he is a representative of the company. Primarily, an official liquidator is an officer of the court. The object of his appointment is the conduct of the proceedings in winding-up and further doing such duties with reference to the winding up as the court may impose. Where does then the representative character of the liquidator for the company come in ? The liquidator looks after the interest of the company and it looks after the interest of the creditors of the company. Such a person can in no sense be called a representative of the company. If he might be called a representative of the company, he might with equal truth be described as a, representative of the creditors of the company. Where no liquidator is appointed ( see Section 178 (2)) or du .....

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..... tor represents the company is only a partial truth. The fact of the matter is that from the very definition of an official liquidator, he is neither a representative of the company nor a representative of the creditors. He is merely an officer of the court appointed by it for the purpose of "effectually" conducting the proceedings in winding-up (Section 175, Indian Companies Act, 1913). The official liquidator has, by the very definition, to perform such duties as the court may impose and although he has been given some powers, he can exercise many important powers only with the sanction of the court and not otherwise {see Section 179, Indian Companies Act). If the official liquidator were a representative of the company, surely he would not stand in need of the court's sanction to institute suits on behalf of the company or to defend suits on behalf of the company. Thus we find that none of the three persons who has been authorised by Section 235 of the Indian Companies Act to move the court is a representative of the company. It would follow, therefore, without further reasoning, that if a suit by the company be time-barred, it should not necessarily follow that a suit by the .....

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..... to a pair of inverted commas have been quoted from several case in which they have been used and to appreciate those words, one must look into the cases themselves in which they found expression. Three English cases in which these words occur, have been laid before us and on an examination of these cases it will be found that none of these use the words in the sense in which the learned counsel for the respondent would want them to be interpreted. The learned counsel for the respondent would read the words. "Section 235 creates no new rights" in the sense that the liquidator and others can enforce their claims under Section 235 only as a representative of the company and not by virtue of their being official liquidators or creditors or contributories. As I have said, an examination of these cases will amply show that the words have been used in the English cases only in this sense and this sense alone, namely, Section 235 (English Sections 165 of the Act of 1862 and 215 of the Act of 1908) does not enable any of the applicants (official liquidator or creditor or contributory) to recover what could not be recovered under the general law. In other words, where there is an act which c .....

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..... Legislature has not done so.' Having said so, the appellate court proceeded to see whether any such liability was created by Section 165 (English Act of 1862). Then Lord Justice James remarked as follows: 'I am of opinion that that section does not create any new liability or any new right but only provides a summary mode of enforcing rights which must otherwise have been enforced by the ordinary procedure of the Courts.' These words, namely, "Section 165 does not create any new liability or any new right" must be read with the facts, in connection with which they have been used and it would be fraught with the greatest danger to take the words out of the context and treat them as if they are of universal application, capable of being applied to any set of facts whatsoever. As we already stated, the learned Judges of the appellate court found that the fact that the directors had not subscribed to any shares did not entail on them any liability to pay for those shares. Baggallay, L.J., at p. 672 said: The circumstances under which these gentlemen accepted office as and acted as directors did not involve them in any contract whatever to take shares. Bramwell, L.J. at p. 6 .....

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..... Throughout the judgments of the four Lords Justices who took part in the case, no suggestion has been made that a liquidator or creditor or contributory cannot recover if a suit by the company happen to be barred by time. This case also, therefore, does not support the contention of the respondent. On the other hand the remarks of Lord Herschell at p. 662 establish that a claim under Section 165 (English 1862) is different from a claim by the company. The last case on the point quoted to us is the case of In re City Equitable Fire Insurance Co. Ltd. The learned counsel for the respondent quoted the following words from p. 507 in support of his argument: I desire to say, though this is not the first time that it has been said, that that Section (215 of the English Act of 1908) deals only with procedure and does not give any new rights. As in the other two cases already discussed, the sentence relied on, if taken without regard to the facts of the case in connection with which they have been spoken, any use whatsoever might be made of them. Pollock, M. R., who used those words was considering whether one Mr. Lepine was acting honestly or was acting fraudulently. His Lordship .....

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..... of limitation in England after having stated the facts of the second case relied on by the learned counsel for the respondent. This case is In re Lands Allotment Co. (1894 1 Ch. D. 616.) In this case there was a company by the name of Land Allotment Co. which was not allowed by its articles to invest its money in the shares of other companies. Under certain circumstances however and in good faith, the directors accepted the shares of another company in lieu of a debt owing to their own company. When the Land Allotment Co. went into liquidation, compensation was claimed from the directors who had allowed the investment. The directors pleaded the Statute of Limitation of 1888. It will be remembered that under that statute, a trustee who is not acting fraudulently is allowed to plead limitation. It was held in this case that the directors were ' trustees ' within the meaning of the statute of limitations and they would be protected by the rule of limitation if their act was not fraudulent. It was found that their act was not fraudulent and therefore they were found not to be liable for the investment. In respect however of another matter, one of the directors, Mr. Brock was held .....

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..... eem to follow from the decision. On the question of limitation, therefore, the two cases just quoted, namely, 36 Ch. D. 787 and (1894) 1 Ch. D. 616, are no authorities, inasmuch as they do not profess to deal with the point of limitation. If the point of limitation had been discussed, we would have known on what ground the decision went. It is, therefore, not permissible to draw an inference only from the fact that the argument was not pressed that the starting point of limitation was the appointment of the liquidator. Before we leave this point, we may mention a case decided by their Lordships of the Privy Council. This case is Ranodip Singh v. Parmeshar Prasad, (I.L.R. 47 A. 165). In this case, the father made an alienation in 1893 and the fourth" plaintiff, being the youngest son of the alien or, was not born at the date of the alienation. It was held by their Lordships of the Privy Council that Article 126 of the Limitation Act was the article that applied to the case, being meant to be applied to a suit "by a Hindu governed by the law of Mitakshara to et aside his father's alienation of ancestral property". According to the 3rd column of Article 126, the time from whic .....

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..... to see which is the most applicable. Before Sub-section 3 of Section 235 of the Indian Companies Act, 1913 was enacted, on the use of the word "application" in the first Sub-section, it appears to have been held in Connell v. Himalaya Bank Limited ( in liquidation ) (I.L.R. 18 All. 12) that no rule of limitation applied. On the other hand, in Ramasamy v. Streeramulu (I.L.R. 19 Mad. 149) it was held that the application was one which fell under the heading of 'applications' in Schedule 1 of the Indian Limitation Act and not under the heading of "suit". This was a Letters Patent appeal and the learned single Judge had dismissed the application on the ground that it was barred by Article 36 of the Indian Limitation Act. It was pointed out that it was an "application" that was before the court and not a suit. It was probably owing to these decisions that the legislature declared that although what the liquidator, creditor and contributory produced before the court was in the shape of an application, it was to be treated as a suit and not as an application. In our opinion the Third Sub-section of Section 235 has no significance beyond this. Before leaving this point we may poi .....

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