TMI Blog1988 (7) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... t applies and the prescribed period is 3 years from the date of the winding up order. There is a further contention that there was no proper resolution by the board of directors for making the call. The date of commencement of the winding up is February 20, 1981. The winding up order was passed on March 23, 1982. These claims were filed on April 7, 1987. According to Sri T.V. RaMakrishnan, learned counsel for the official liquidator, the liquidator is entitled to exclude two periods under section 4S8A of the Companies Act, namely (1) the period of pendency of winding up petition and (2) one year immediately following the winding up order. The period of pendency of the winding up petition in this case was 1 year, 1 month and 2 days. Therefore, learned counsel submitted that 1 year 1 month and 2 days plus 1 year and the 3 years prescribed under article 137 of the Limitation Act brings the last date of filing the claims to April 24, 1987, since the date of the winding up order was March 23, 1982. On the other hand, the contention of learned counsel for the respondents was that if the period of pendency of the winding up is to be taken into account, time will have to be calculated fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation under any Act. But it has to be an application to a court for the reason that sections 4 and 5 of the 1963 Limitation Act speak of expiry of the prescribed period when the court is closed and extension of the prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period." Therefore, the article that is applicable in this case is 137. Learned counsel for respondents relied on Mahomed Akbar v. Associated Banking Corporation India Ltd., [1950] 20 Comp Cas 325 where the Bombay High Court held as follows (at p. 331): "It is a well-established principle of the law of limitation that once limitation begins to run no subsequent event will prevent the time from running and no authority has been cited, and there is nothing in principle to substantiate the proposition put forward by Mr. Seervai that although limitation began to run under article 112 from the date when the call was made payable the subsequent order of winding up the company stopped limitation continuing to run and a new period of limitation has to be calculated from the date of the order of winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Privy Council had occasion to consider whether the periods of limitation provided for suits in the Limitation Act will apply to applications made by the liquidator under the Companies Act and their Lordships held that the liquidator's application to realise an asset due to the company is not a suit. I respectfully agree with the principle laid down therein and applying it I hold that the periods of limitation prescribed by the Limitation Act for suits do not apply to claim applications filed by the liquidator. ............The question is, therefore, when can the liquidator's right to apply accrue ? This right to apply accrues to him when the winding up order was passed or when a provisional liquidator is appointed. Previously, the company's remedy was only by way of a suit. A new remedy to make a claim application accrued only when the company is wound up.........." In Faridabad Cold Storage v. Official Liquidator of Ammonia Supplies Corporation ( P .) Ltd. [1978] 48 Comp Cas 432 ; AIR 1978 Delhi 158, a Full Bench of the Delhi High Court held as follows (p. 436, 437 of 48 Comp Cas): "One of the basic principles for interpretation of statutes is that different pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the above conclusion by the following principles usually adopted in interpreting the provisions relating to limitation. It is well-settled that the language of an enactment especially like the Limitation Act must receive its natural meaning (see for example Norendra Nath Sarcar v. Kamalbasini Dasi [1895-97] ILR 23 Cal 563 PC and Abhiram Goswami v. Shyama Charon Nandi [1909-10] ILR 36 Cal 1003 at 1014 PC. The courts have noticed that the fixation of periods of limitation must always, to some extent, be arbitrary and may frequently result in hardship. However, the courts have held that in considering such provisions, equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. (See Kunju Naina v. Eapen Chacko, AIR 1954 TC 499, Boota Mal v. Union of India. AIR 1962 SC 1716 and Siraj-ul-hag Khan v. Sunny Central Board of Wakf [1959] SCJ 367, 375. The courts have also held that where the language is dubious, the construction should be that which favours the right to sue rather than that which bars the right. (See Jethmal v. Ambsingh, AIR 1955 Raj 97 [FB] and Raghuraj Singh v. Sobhaman, AIR 1951 All 485 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total call amount was Rs. 3,836, out of which the respondent paid Rs. 3,156. The claim is for the balance amount of Rs. 680 and interest. The liquidator has produced the notice as annexure A to the application which is marked as exhibit A-4. The notice in C.C. No. 210 of 1987 is marked as exhibit A-6. In exhibits A-1( a ) and A-1( b ), the respective amounts paid by the respondents, namely, Rs. 3,156 and Rs. 9,080 are seen credited. Learned counsel for the respondents contended that there are certain corrections in exhibit A-2( d ) minutes book and two minutes books were maintained for the same period and that is highly suspicious. In this connection, it may be mentioned that exhibit A-2( d ) and several other resolutions were passed in board meetings attended by the respondent in C.C. No. 210 of 1987. It was up to him to explain all these matters in court. He did not go to the box. Therefore, such contentions cannot be accepted. In the claims, twelve per cent. interest from March 23, 1982, is claimed. There is no resolution in the minutes regarding payment of interest. Under the circumstances, interest at the rate of six per cent. per annum from the date of filing of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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