TMI Blog1960 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... rade and Industries Corporation Ltd. The mistake was discovered some time in July, 1952, when the Bharat Nidhi Ltd. called upon the Trade and Industries Corporation Ltd. and its various directors to refund these amounts to the company. Having failed to get the money back, on 26th October, 1953, the petition, out of which this appeal has arisen, under sections 216 and 235 was filed in the court of the learned District Judge at Delhi. The contesting respondents opposed this petition inter alia on the ground of limitation and the learned District Judge came to the conclusion that the application under section 235 of the Companies Act (VII of 1913) should have been made within three years from the date of the first appointment of a liquidator in the winding up or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer. In the instant case the liquidator of the Trade and Industries Corporation Ltd. having been appointed before the year 1949, which was clearly more than three years before the presentation of the petition, the present petition would clearly be barred by time. It was contended before the learned District Judge that the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought and finally on the date when the decree is passed. I do not see how the ratio and the underlying principle of this decision can help the appellant. When asked to cite any authority in which a dead claim was revived by means of an amendment in the law of limitation, the counsel frankly expressed his inability to do so. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri AIR 1941 FC 5, is the next authority on which the counsel has placed reliance. From this decision support is sought for the proposition that the hearing of an appeal under the procedural law of India is in the nature of a re-hearing and, therefore, in moulding the relief to be granted in a case on appeal the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against, and, consequently, the appellate court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given. I fail to see how this decision can advance the appellant's case. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee of the Privy Council in Mathukumalli Ramayya v. Uppalapati Lakshmayya AIR 1942 PC 54, 56 , spoke thus: "Ordinarily, the suit would be governed by the Limitation Act (IX of 1908) which is the law in force when the suit was instituted ; but if the defendants are able to show that the right of action had become barred under the Act of 1859 then the title that they had acquired could not be defeated by the subsequent Limitation Acts." In Sarkar Dutt Roy Co. v. Shree Bank Ltd. [1960] 30 Comp. Cas. 416, 421 Lahiri C.J., while dealing with a similar question, observed as follows : "It is a settled rule of construction of statutes that retrospective effect is not given to an enactment so as to affect substantive rights unless the contrary intention appears by express language or necessary intendment. Section 45-O(1) has the effect of extending the period of limitation for filing an application for execution by a banking company and in the absence of express words or necessary intendment it cannot operate to revive and render effective a decree which has been barred under the previous law, namely, article 182(7) of the Indian Limitation Act. This point has been se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation bad not been passed." As a matter of fact so far as the instant case is concerned I find that the Companies Act (1 of 1956), itself contains a provision according to which this Act is clearly made inapplicable to the winding up proceedings commenced before the commencement of the Act; the only exception from the exemption being cases falling under section 555 (7). This is provided by section 647 which is in the following terms : "Where the winding up of a company has commenced before the commencement of this Act ( i )sub-section (7) of section 555 shall apply in respect of any moneys paid into the Companies Liquidation Account whether before or after such commencement; and ( ii )the other provisions with respect to winding up contained in this Act shall not apply, but the company shall be wound up in the same manner and with the same incidents as if this Act had not been passed." In view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directors of the Trade and Industries Corporation Ltd. The argument has merely to be stated to be rejected. Section 24, as its language clearly shows, is applicable to suits for compensation for acts not actionable without special knowledge. I fail to see how the principle underlying this section can at all be of any assistance to the counsel for the appellant. The facts of the case in hand can by no means attract the application of section 24. Before concluding I might also observe that in this case it is extremely doubtful if section 235 of the Indian Companies Act (VII of 1913) is at all applicable to the application filed by the appellant before me. Merely because the Trade and Industries Corporation Ltd. have withdrawn an amount from their own current account with the Bharat Bank Ltd., its directors cannot be considered to have been guilty of any misfeasance or breach of trust in relation to their own company, namely, the Trade and Industries Corporation Ltd. They may have done some wrong to the Bharat Bank Ltd. but for that wrong there may be or perhaps is some other remedy available by proper legal proceedings against those who have withdrawn an amount not legitimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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