9911796707
TMI Blog2011 (4) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... as described in paragraph 9(g) above to the official liquidator together with interest at 18 per cent. per annum or any other rate as this honourable court may fix with effect from the date of winding up ; (10) to direct the ex-directors to make good the amount of Rs. 32,66,631 jointly or severally as described in paragraph 9(h) above to the official liquidator together with interest at 18 per cent. per annum or any other rate as this honourable court may fix with effect from the date of winding up ; (11) to direct the ex-directors to make good the amount of Rs. 18,53,116 jointly or severally as described in paragraph 9(i) above to the official liquidator together with interest at 18 per cent. per annum or any other rate as this honourable court may fix with effect from the date of winding up ; (12) to direct the ex-directors to make good the amount of Rs. 2,83,674 jointly or severally as described in paragraph 9(j) above to the official liquidator together with interest at 18 per cent. per annum or any other rate as this honourable court may fix with effect from the date of winding up ; and (13) to direct the ex-directors to make good the amount of Rs. 7,58,175 jointly or sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of computation of limitation. He would also contend that the provisions of section 446 of the Act is to be read in conjunction to section 458A and to that extent only the exclusion clause is to be made applicable and not to a proceeding under section 543 of the Act. He would also draw the attention of the court to rule 16 of the Companies (Court) Rules, 1959, to contend that it is a special provision whereunder specific period of limitation has been prescribed and as such exclusion clause cannot be pressed into service for the purpose of computation of period of limitation. 5. Per contra, Sri K. S. Mahadevan, learned counsel appearing for the official liquidator would submit that section 458A is to be read along with section 543 and he contends that section 543(2) prescribes the period of limitation and section 458A prescribes the exclusion period and thus the exclusion period of one year provided under section 458A would also extend to an application filed by the official liquidator under section 543(2). He would submit that words used in section 458A is with reference to the proceedings to be initiated in the name and on behalf of the company which is being wound up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company ; whether such suit or proceeding has been instituted or is instituted or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960. 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 Tribunal, 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 winding up order shall be excluded. 543. Power of Tribunal to assess damages against delinquent directors, etc.-(1) If in the course of winding up of a company, it appears that any person who has taken part in the promotion or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made and additional period of one year immediately following the date of winding up. By an amendment, the Legislature has enacted and inserted section 458A in the Act so that the official liquidator who is the custodian of the assets and liabilities of the company (in liquidation) would be able to file or lodge claim on behalf of the company which was legally enforceable on the date of winding up, after excluding the period indicated in section 458A and thereby the company or its shareholders who may have stake their claim, if any, for being adjudicated and would not suffer any loss on such account. It is held by the hon'ble apex court in the said decision as under (page 610) : "In other words, in respect of a legally enforceable claim, which claim could have been made by the company on the date on which the application for winding up is made, could be filed by the official liquidator by taking the benefit of section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under article 137 of the Limitation Act. The Legislature, by way of an amendment, brought into force the provisions of section 458A, so that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances mentioned in sections 12 to 24 for computation of the period of limitation. Similarly, section 458A provides for an additional circumstance which is not there in the Limitation Act which is required to be taken into account as an item of exclusion in the matter of computation of the period of limitation of five years prescribed by section 543(2). That circumstance is a period spent between the date of commencement of winding up of the company and the date on which the winding up order is passed plus one year therefrom. If this period of limitation is to stand excluded it is only by virtue of section 458A which circumstance is not contemplated by sections 12 to 24 of the Limitation Act. Just as a different period of limitation is prescribed for misfeasance proceedings vide section 543(2) so also vide section 458A a special circumstance is indicated as an item of exclusion of certain time in computing the period of limitation. Therefore, there is no conflict between section 458A and section 543(2) of the Companies Act. If so read, there is no extension of the period of limitation of five years as contended on behalf of the appellant. In our view, section 458A excludes the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. On this aspect more provision needs to be mentioned. Section 457 deals with powers of liquidator. Under section 457(1) the liquidator, in a winding up by the court, has the power with the sanction of the court to institute any suit prosecution or legal proceedings in the name and on behalf of the company. In the present case the winding up order indicates that the company court had granted such a sanction and the misfeasance proceedings have been instituted by the official liquidator in terms of section 457(1)(a) of the Companies Act. The claim on behalf of a company (in liquidation) filed by the official liquidator is in the form of application though it is really a plaint and hence it cannot be stated that the misfeasance proceedings are proceedings instituted by the official liquidator in his own independent right. Once it is held that the said application is in the nature of a plaint then section 457 of the Companies Act would apply. Section 458A of the Companies Act is intended to extend the limitation period for the benefit of the company (in liquidation) and the official liquidator appointed to carry on its winding up process by collecting the assets and distribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
