1982 (2) TMI 264 - HC - Companies Law

Summary

Issues Involved:
1. Scope of section 458A of the Companies Act, 1956.
2. Authority and duties of the official liquidator in recovering debts.
3. Applicability of extended limitation period u/s 458A.
4. Competence of the official liquidator to act for secured creditors.
5. Maintenance of separate accounts by the official liquidator.

Summary:

1. Scope of Section 458A of the Companies Act, 1956:
The primary issue was whether the recovery of dues by the official liquidator under an understanding with the bank can be considered as actions "in the name and on behalf of the company" as per section 458A of the Act. The court concluded that the liquidator's actions, even under the bank's arrangement, were indeed on behalf of the company, thus entitling the company to the extended limitation period provided by section 458A.

2. Authority and Duties of the Official Liquidator:
The court examined the official liquidator's rights, duties, and powers concerning debt recovery. It was established that the liquidator is obligated to collect the company's assets, including debts, and can initiate proceedings for recovery under section 457(1)(a) of the Act. The liquidator's actions were found to be within his statutory duties, and the understanding with the bank did not alter his role or authority.

3. Applicability of Extended Limitation Period u/s 458A:
The court held that section 458A extends the limitation period for suits or claims instituted "in the name and on behalf of the company" under liquidation. The liquidator's proceedings, despite being facilitated by the bank, were deemed to be on behalf of the company, thus qualifying for the extended limitation period. The court rejected the argument that the recoveries were on behalf of the bank, emphasizing that the bank could not independently enforce the debts.

4. Competence of the Official Liquidator to Act for Secured Creditors:
The court addressed the contention that the liquidator cannot act for the benefit of secured creditors. It was clarified that while secured creditors are outside the winding-up process, the liquidator can still deal with secured properties with the creditors' consent. The liquidator's actions in recovering hypothecated debts were found to be consistent with his duties and did not impair the bank's security.

5. Maintenance of Separate Accounts by the Official Liquidator:
The court examined the requirement for the liquidator to maintain a separate account of receipts from debtors as directed by the company judge. It was concluded that maintaining a separate account in the company's books for earmarking funds for secured creditors does not violate section 552 or rule 291 of the Companies Act. The court found no basis for the contention that such an account was impermissible.

Conclusion:
The appeals were allowed, and the cases were remanded to the company judge for further consideration of other points raised by the debtors. The court refused leave to appeal to the Supreme Court for the respondents in Appeals Nos. 66, 70, and 71 of 1977.