1990 (11) TMI 321 - HC - Companies Law

Summary

Issues:
Claim for realising principal amount and interest, liability of respondents in kuri prized money, contention of limitation, calculation of limitation period, exclusion of periods under Companies Act and Limitation Act, prayer for set off, waiver of interest, payment in instalments.

Analysis:
The judgment involves a claim for realising a principal amount and interest by the official liquidator of a company. The claim is against the respondents for their liability in a kuri prized money drawn by the first respondent. Respondents 2, 3, and 4 are impleaded as sureties for the debt. The first respondent raised a contention of limitation in response to the claim, arguing that the claim is barred by limitation. The main issue revolves around the calculation of the limitation period for filing the claim.

The court delves into the timeline of events, including the last payment made by the respondent, the filing of the winding-up petition, the subsequent winding-up order, and the approval of a scheme in appeal. The court highlights the significance of the appellate judgment that authorized the provisional liquidator to file suits and take necessary steps. The Supreme Court's intervention clarified the jurisdiction of the winding-up court to entertain claims under section 446(2) of the Companies Act. The court emphasizes that the right to file a claim under this section arises only upon the passing of a winding-up order.

The judgment cites precedents to support the exclusion of periods specified in the Companies Act and the Limitation Act when calculating the limitation period for filing claims by the official liquidator. The court applies the principle that favors the right to sue rather than barring it when interpreting the relevant laws. It allows the exclusion of specific periods, ultimately determining that the present claim, filed within the calculated timeframe, is not barred by limitation.

Additionally, the judgment addresses the respondent's prayer for set off from other chit amounts and a waiver of interest, along with a request to pay the balance amount in instalments. The court decrees the claim in favor of the liquidator, allowing the respondents to pay the principal amount with half interest in monthly instalments. The judgment sets a payment schedule and conditions for waiver of the balance amount based on timely payments, while reserving the right for the liquidator to realize the full decree amount if the conditions are not met.

In conclusion, the judgment provides a detailed analysis of the limitation issue, the calculation of exclusion periods, and considerations for set off, interest waiver, and payment terms. It upholds the claim in favor of the liquidator while outlining specific conditions for payment and enforcement of the decree.