TMI Blog1972 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... p of R.C. Abrol and Company Private Ltd. which was ordered to be wound up by an order dated August 19, 1966, of the Circuit Bench of the Punjab High Court at Delhi, on a petition dated March 4, 1966, filed for this purpose. On August 18, 1971, the official liquidator filed a petition under clause ( b ) of sub-section (2) of section 446 and section 543 of the Companies Act, 1956, against A.R. Chadha and Company and four others, one of whom (respondent No. 2), was the managing director of the company before its winding up and the other three (respondents Nos. 3 to 5) were said to have been working directly under his instruction and control. The claim of the official liquidator against respondent No. 1 was mentioned in paragraph 8 of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the claim of the company in liquidation at any rate was barred by limitation. The petition against respondent No. 1 was said to be liable to be rejected under Order 7, rule 11, of the Code of Civil Procedure on this score. Mr. Vijay Kishan, appearing on behalf of respondent No. 1, contended that the claim of the company in liquidation was for price of the goods alleged to have been sold to respondent No. 1. It was, therefore, governed by article 14 of the Schedule to the Limitation Act, 1963, under which the limitation was three years from the date of the delivery of the goods. Even if the period required to be excluded from computation under section 458A of the Companies Act is excluded, the claim for the recovery of the amount woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther matters, cheaply and without delay, so that winding up proceedings could be expedited. The amendment Act has introduced clauses ( b ), ( c ) and ( d ) to sub-section (2) of section 446, which, as amended, reads as follows : "446. (1) When a winding-up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose. (2) The court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "any claim made by or against the company". Such a claim, if pursued by a suit, would be covered by clause ( a ); but it may be pursued under clause ( b ), which can be done by an application, and which is something different from a suit. The Amendment of 1960 has brought section 446(2) of the Companies Act in line with section 45B of the Banking Companies Act, which was also designed to attain the same objective of providing cheap and speedy procedure. Referring to section 45B of the Banking Companies Act, the Supreme Court in Dhirendra Chandra Pal v. Associated Bank of Tripura [1955] 25 Comp. Cas. 19, 23; A.I.R 1955 S.C. 213 observed : "It appears to us that, consistently with the policy and with the scheme of the Amending Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt jurisdiction to entertain or dispose of claims made by or against the company. It acts both ways. If the company can pursue its claim under this provision against third parties, the third parties can also utilise this provision to press their claims against the company. Clause ( b ) creates a special jurisdiction and a special procedure for obtaining relief, in respect of claims which already exist and are alive in the sense that they are enforceable. It does not remove the bar of limitation and awaken the claims by or against the company, which have lain in repose and rendered incapable of pursuit by the law of limitation. The power of the company court under this clause is discretionary. It may refuse to act under the section, leaving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of the further question whether it is barred. In Raoji Bapuchand Pendharkar v. K. L. Bavachekar A.I.R. 1950 Bom. 399, Chagla C J., speaking for the Bench, held that by reason of the receiver making an application under section 4 of the Provincial Insolvency Act, 1920, rather than filing a suit, the party against whom the application was made could not be deprived of his right to plead the statute of limitation. The court was bound to consider all the defences open to the party in a suit. In Malabar Petroleum Co. v. Continental Oil Co. Ltd. [1963] 33 Comp. Cas. 367 ; A.I.R. 1963 Mad. 307 the expression "any money due" in section 469 of the Companies Act, 1956, was held to mean the amount due, which could not be said to be due ..... X X X X Extracts X X X X X X X X Extracts X X X X
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