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TMI Blog2015 (12) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... be wound up and the Official Liquidator attached to this Court was appointed as the Liquidator of the Company. The winding up proceedings in C.P.No.57/1989 commenced on 16.10.1989, the date on which the said Company Petition was filed before this Court. The order of winding up was passed on 4.4.1990. Thereafter, the Official Liquidator filed claims before the Company Court under clause (b) of sub-section (2) of Section 446 of the Act. 3. The appellants in these appeals, who were respondents in those claims filed written statement contending, inter alia, that the claims are barred by limitation. However, the learned Company Judge by a common judgment dated 2.3.2001 rejected the said contention, relying on the judgment of a Full Bench of this Court in Ulahannan v. Wandoor Jupiter Chits (P) Ltd. (1988 (2) KLT 636), and decreed the claims in part together with interest at the rate of 12% per annum from the respective due dates till realisation, from the assets of the firm M/s. Chandini Financiers, the 2nd respondent in these appeals, from the appellants and others who were arrayed as respondents in the Company Claim as its Partners, and also from the assets of the deceased respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up order or on the date of appointment of the provisional liquidator. It also bars the commencement of any proceeding after the said date against the company without the leave of the Court. 10. Sub-section (2) of Section 446 of the Act, which was introduced by the Companies (Amendment) Act, 1960 states further that, the Court shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under Section 391 by or in respect of the company; and (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; 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 (65 of 1960). Sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) and a period of one year immediately following the date of the winding up order shall be excluded. 14. The effect of Section 458A of the Act is that, in respect of a legally enforceable claim, which could have been made by the company on the date on which the application for winding up is made, the period of limitation will not run against the company from the date of commencement of the winding up proceedings, i.e., from the date on which the application for winding up is made, till the date on which the winding up order is made (both inclusive). Such a claim could be filed by the Official Liquidator by taking the benefit of one year period immediately following the date of the winding up order, as provided under Section 458A of the Act and the three years period provided under Article 137 of the Limitation Act. Therefore, in respect of a legally enforceable claim, which could have been made by the company on the date on which the application for winding up is made, the Official Liquidator could file claim within a period of four years from the date on which the winding up order is made. 15. In Faridabad Cold Storage and Allied Industry v. Official Liquidator of Ammonia Suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Liberty Finances case (supra), held that Section 458A of the Act merely excludes the period during which a company was being wound up by the Court, from the date of the commencement of the winding up till the order of winding up is made, and an additional period of one year immediately following the date of the winding up. In other words, in respect of a legally enforceable claim, which could have been made by the company on the date on which the applications for winding up is made, could be filed by the Official Liquidator by taking the benefit of Section 458A of the 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 Apex Court held further that, by no stretch of imagination, the provisions contained in Section 458A can be construed to mean that even a barred debt or a claim which was not enforceable on the date of the winding up, would stand revived, once a winding up application is filed and order is made, by virtue of Section 458A of the Companies Act. Para.4 of the judgment reads thus; 4. On a plain reading of the provisions contained in Section 458A of the Companies Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Companies Act is intended to extend the limitation period for the benefit of the company (in liquidation) and the O.L. appointed to carry on its winding up process by collecting the assets and distributing the same among those entitled to the same. The underlying object in extending the limitation is to enable the O.L. to take charge of the affairs of the company, to examine the records, account books, to study the annual statements and accordingly proceed to recover and collect the assets. He has also to find resources for conducting the proceedings. The proceedings initiated by him by way of judge's summons or suit for enforcement of the recoveries, cannot but be on behalf of the company having regard to his source of authority, viz., the provisions of the Companies Act and the statutory obligation in discharge of which he has to act in this behalf. The said Act does not contemplate his acting in the matter of recoveries excepting as O.L. and excepting on behalf of the company. 19. In the case on hand, the winding up proceedings against the company in liquidation commenced on 16.10.1989, the date on which C.P.No.57/1989 was filed before this Court and the order of wind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name and on behalf of a company in liquidation, 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 a further period of one year are to be excluded in computing the period of limitation. Both the periods referred to above are to be excluded in computing the period of limitation and there is nothing in Section 458A to restrict its application to the one year period after the winding up order has been passed, in cases where the claim does not get barred during the pendency of the winding up application. On the above reasoning, the Full Bench held that the respective claims involved in those appeals, which were filed by the Official Liquidator beyond a period of four years from the date of winding up order are not barred by limitation. In view of the law laid down by the Apex Court in Karnataka Steel and Wire Products case (supra), the law laid down by the Full Bench of this Court in Ulahannan's case (supra) is not good law. 21. In view of the law laid down by the Apex Court in Karnataka Steel and Wire Products case (supra), in respect of a legally enforceable claim, which could have been made by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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