9911796707
TMI Blog1992 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 1979. By virtue of section 449 of the Act, the official liquidator became the liquidator of the company from the date of the winding-up order. In the affidavit filed in support of the present company application, the official liquidator states that though under sub-section (2) of section 543 an application under sub-section (1) of that section has to be filed within five years from the date of the order for winding-up, by virtue of section 458A of the Act in computing the period of limitation the period from the date of commencement of the winding-up of the company to the date on which the winding-up order is made and the period immediately following the date of winding-up order shall be excluded and, therefore, the last date for filing Company Application No. 7 of 1989 was December 15, 1988. But the said company application was filed on January 16, 1989, as he was under the bona fide belief that the last date for filing the same was January 16, 1989, due to miscalculation in computing the period of limitation and that, therefore, the said delay of 33 days was neither intentional nor deliberate. On that basis he seeks condonation of the said delay. He further states that this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law." It cannot be disputed that section 543 of the Act is a special law and that it provides for a period of limitation different from that prescribed under the Limitation Act, 1963. The Companies Act, 1956, does not expressly exclude the application of section 5 of the Limitation Act. Therefore, the requirements of sub-section (2) of section 29 of the Limitation Act, 1963, are satisfied and section 5 of that Act can be invoked by the official liquidator for having the delay in filing the present application condoned on sufficient cause being shown. I am supported in this view by the decision of the Kerala High Court in Official Liquidator, Central Banking Corporation of Travancore Ltd. v. Dr. K. Ramakrishna Pillai [1970] 40 Comp Cas 441. Also in Phirojshah Pestonji v. Ramnath Janardan [1965] 2 Comp LJ 16, a Division Bench of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od anterior to the starting point for limitation and which could, therefore, never be included, could have the effect of postponing the date within which a proceeding has to be instituted, I am quite unable to understand." This decision of the Kerala High Court was not referred to in any of the three decisions of this court, referred to above, and anyhow the contention as advanced now was not advanced in those cases and, therefore, there was no occasion to consider the matter from this angle. The language of section 458A seems to support the contention of learned counsel for the respondents. A reading of section 458A makes this clear : "458A. Exclusion of certain time in computing periods of limitation-Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908), or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the court, the period from the date of commencement of the winding-up of the company to the date on which the winding-up order is made (both inclusive) and a period of one year immediately following the date of the windin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the winding-up of the company to the date of the winding-up order (both inclusive) and a period of one year from the date of the winding-up order should be excluded. The winding-up proceedings commenced with the filing of the application on April 6, 1972, and the order of winding-up was made on October 27, 1972, and that period which comes to six months and 22 days should be excluded. In addition, the period of one year from October 27, 1972, to October 26, 1973, has also to be excluded. Thus, in all, one year, six months and 22 days has to be excluded in computing the period of limitation for filing the application. If so computed the last date for filing the misfeasance application under section 543(1) in the instant case will be May 19, 1979. The present application was filed on February 23, 1979, and is, therefore, well within time and is not barred by limitation. I am unable to agree with the contention of Shri N. Seshachary that only one year from the date of the winding-up order has to be excluded for an application under section 543(2) read with section 458A. The provisions of section 458A are clear and both the periods, i.e., the period from the commencement of the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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