TMI Blog1977 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of Rs. 504 and the return of empty cylinder in favour of the official liquidator and on the failure of the appellant to return the cylinder, the official liquidator was further held entitled, in the alternative, to the recovery of Rs. 340. The official liquidator was also awarded the costs of the petition. When the appeal came up before the Division Bench (S.N. Shankar and T.P.S. Chawla JJ.), the learned judges referred this appeal to the Full Bench along with Company Appeal No. 2 of 1969. That is how the present appeal has been placed before the Full Bench. Ammonia Supplies Corporation (P.) Ltd. was ordered to be wound up by order dated December 21, 1962. On February 1, 1966, the present petition, out of which the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) was within limitation. As noticed earlier, the view of the learned Additional District Judge was that the claim petition not being a suit, the provisions of the Limitation Act have no application. It is the validity of this view which has been canvassed before us and for which reference of the appeal was made to the Full Bench. It may be mentioned that no question was canvassed in this appeal on the maintainability of the claim petition as distinct from institution of a suit. The only question which was argued related to the meaning of the expression "any claim" as occurring in section 446(2)( b ) of the Companies Act, 1956 (hereinafter referred to as "the Act"), and whether any claim so made under the said clause was subject to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for enforcement of claims and this remedy was provided for the first time by the Amending Act of 1960. Before the amendment of section 446(2) giving this remedy by way of clause ( b ) to the official liquidator as well as to any person against the company in liquidation, there was already a provision in section 469 in the Act, which is as under : "469. (1) The court may, at any time after making a winding-up order, make an order, on any contributory for the time being on the list of contributories to pay, in the manner directed by the order, any money due to the company, from him or from the estate of the person whom he represents, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act. (2) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 186 must be confined to money due and recoverable in a suit by the company and they do not include any moneys which at the date of the application under section 1 86 could not have been so recovered." It will thus be noticed that under the scheme of the old Act and section 469 of the Act which is analogous to section 186 of the old Act, the company judge could pass a payment order even against a contributory only to the extent of the money due and recoverable in a suit by the company and did not include any money which at the date of the application under section 186 could not have been so recovered. The question then arises : Do the provisions of section 446(2), which applies to "any claim", refer to claims which were already barre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 391 by or in respect of the company; ( d )any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company " It will be noticed that clause ( b ) of section 446(2) of the Act gives to the company court 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. If there is a bar of limitation for making payment order against the contributories by the company judge under section 469 of the Act, can it be said that such a claim could be fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the winding-up order, a period of one year immediately following the winding-up order is also excluded for purposes of computing the limitation. As the right to avail of the remedy provided by clause ( b ) of section 446(2) of the Act arises only after the passing of the winding-up order, the appropriate date to be seen for purposes of determining whether the claim was enforceable at law or not is the date of the winding-up order. Of course, the claimant will be entitled to the full benefit of section 458A of the Act. The Supreme Court in the case of Kerala State Electricity Board v. T.P. Kunhaliumma, AIR 1977 SC 282, overruled its earlier view expressed in Town Municipal Council, Athani v. Presiding Officer, Labour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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