TMI Blog2015 (12) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... , 6, 9, 15, 19, 25 of 2003 & M.F.A. Nos. 376 & 470 of 2003 - - - Dated:- 23-12-2015 - P.R. RAMACHANDRA MENON AND ANIL K. NARENDRAN, JJ. For The Appellant : K.G. Balasubramanian, Adv. For The Respondent : K. Moni , Adv. Judgment: Anil K. Narendran, J. 1. These appeals arise out of a common judgment dated 2.3.2001 of the learned Company Judge of this Court in C.C.Nos.25/1994, 15/1994, 23/1994, 27/1994, 26/1994,22/1994, 24/1994 and 2/1994 respectively in C.P.No.57/1989. Since the issues raised are common we propose to dispose of these appeals by a common judgment. 2. The appellants in these appeals are the respondents in C.C.Nos.25/1994, 15/1994, 23/1994, 27/1994, 26/1994, 22/1994, 24/1994 and 2/1994 filed in C.P.No.57/1989. By order dated 4.4.1990 in C.P.No.57/1989 of the learned Company Judge M/s.Chandini Chits Private Ltd., a Company registered under the Companies Act, 1956 (hereinafter referred to as 'the Act') was ordered to 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 Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up was passed on 4.4.1990 and the Official Liquidator attached to this Court was appointed as Liquidator of the Company. During the course of winding up, the Official Liquidator filed C.C.No.25/1994 on 24.8.1994, C.C.No.15/1994 on 12.8.1994, C.C.No.23/1994 on 24.8.1994, C.C.No.27/1994 on 24.8.1994, C.C.No.26/1994 on 24.8.1994, C.C.No.22/1994 on 24.8.1994, C.C.No.24/1994 on 24.8.1994 and C.C.No.2/1994 on 3.6.1994. 9. Sub-section (1) of Section 446 of the Act states that, when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose. Sub-section (1) of Section 446 of the Act, therefore, relates to proceedings against the company and provides for stay of proceedings already pending on the date of the winding 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-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 137 of the Limitation Act reads thus; Article Description of Application Period of limitation Time from which the period begins to run 137 Any other application for which no period of limitation is provided elsewhere in this division. Three years When the right to apply accrues The period of limitation of three years would, therefore, be from the date of the winding up order. 13. Section 458A of the Act, inserted by the Companies (Amendment) Act, 1960 deals with exclusion of certain time in computing the periods of limitation. As per Section 458A of the Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (49) CC 287) held that, the expression 'any claim' occurring in Section 446(2)(b) of the Companies Act means, a claim which is legally enforceable and, therefore, a claim which had become time barred on the date of presentation of the winding up petition cannot be described as a legally enforceable claim and the provisions of Section 446(2)(b) of the Act do not enable the Official Liquidator to file or receive claims which had been quietened by lapse of time. The Court held further that, where there is an enforceable claim as on the date of the winding up petition, the Official Liquidator can make an application under Section 446(2) and such an application will attract the provisions of Article 137 of the Limitation Act. The Court observed that, reading Section 458A of the Act and Article 137 of the Limitation Act together, such an application by the Official Liquidator should be filed within a period of four years from the date of the winding up order. 17. In Karnataka Steel and Wire Products v. Kohinoor Rolling Shutters and Engg. Works (2003 (1) SCC 76) the Apex Court, after referring to the judgment of the Delhi High Court in Liberty Finances case (supra), held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 18. In Ajay G. Podar v. Official Liquidator of J.S. and W.M. (2008 (14) SCC 17) the Apex Court, in the context of misfeasance proceedings filed by the Official Liquidator under Section 543 of the Companies Act held that, Section 458A of the 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 distributing the same among those entitled to the same. The underlying object in extending the limitation is to enable the Official Liquidator 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. The Official Liquidator has also to find resources for conducting the proceedings. Para.20 of the judgment reads thus; 20. Section 458A of the Companies Act is intended to extend the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of law laid down by the Apex Court in Karnataka Steel and Wire Product's case (supra). 20. It is relying on the judgment of a Full Bench of this Court in Ulahannan Vs. Wandoor Jupiter Chits (P) Ltd. (1988 (2) KLT 636) the learned Company Judge decreed the claims in part. In Ulahannan's case (supra), the winding up proceedings against M/s. Wandoor Jupiter Chits (P) Ltd. commenced on 1.10.1973 by filing C.P.No.17/1973 and the winding up order was passed on 20.12.1973. The Official Liquidator filed claims under Section 446(2)(b) of the Act on 28.2.1978. There was no dispute that the claims were alive on the date of the winding up order. But, the claims were filed beyond a period of four years from the date of winding up order. The appellants contended that the exclusion of time for the purpose of limitation under Section 458A of the Act cannot relate to any period prior to the winding up order. After referring to the decisions in Faridabad Cold Storages case (supra), Liberty Finances case (supra), etc., the Full Bench of this Court held that, as per Section 458A of the Act, in respect of any suit or application in the name and on behalf of a company in liquida ..... X X X X Extracts X X X X X X X X Extracts X X X X
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