1993 (6) TMI 212 - HC - Companies Law

Winding up Suits stayed on winding-up order, Exclusion of certain time in computing periods of limitation

Issues Involved:
1. Whether the claim is barred by limitation.
2. Applicability of the exclusion periods under the Limitation Act and Companies Act.
3. Whether the company in liquidation was conducting "banking" business.
4. Applicability of Section 10 of the Limitation Act regarding trust property.

Detailed Analysis:

1. Whether the claim is barred by limitation:
The primary issue is whether the claim filed by the official liquidator on December 6, 1991, is barred by limitation. The learned company judge dismissed the claim as barred by limitation. The appellant contended that the period of limitation should exclude several specific periods as per various legal provisions.

2. Applicability of the exclusion periods under the Limitation Act and Companies Act:
The court considered the exclusion periods under Section 458A of the Companies Act and Section 15(3) of the Limitation Act. The appellant argued that the liquidator is entitled to exclude the period from the date of the winding-up order to the date of the Supreme Court judgment (October 13, 1981, to August 16, 1984), the period from the date of the winding-up petition to the date of the winding-up order (January 2, 1981, to October 13, 1981), and an additional period of one year under Section 458A of the Companies Act. The court held that the liquidator is entitled to exclude an additional three months from August 16, 1984, under Section 15(3) of the Limitation Act, in addition to the periods allowed under Section 458A of the Companies Act. However, even with these exclusions, the claim filed on December 6, 1991, was still barred by limitation.

3. Whether the company in liquidation was conducting "banking" business:
The liquidator contended that the company's chit fund business falls under the definition of "banking" as per Section 5(b) of the Banking Regulation Act, 1949. The court rejected this contention, stating that the company's business did not meet the criteria for "banking" since the deposits were not withdrawable by cheque, draft, or order, and the company did not use the words "bank," "banker," or "banking" in its name, nor did it have a license from the Reserve Bank of India. Therefore, Section 45-0 of the Banking Regulation Act, which provides for a special period of limitation, was not applicable.

4. Applicability of Section 10 of the Limitation Act regarding trust property:
The liquidator argued that the relationship between the company and its creditors is in the nature of a trust, making Section 10 of the Limitation Act applicable. The court rejected this argument, clarifying that the relationship between the subscriber and the foreman in a chit fund is purely one of debtor and creditor. The court referred to Janardhana Median v. Gangadharan [1983] KLT 197; [1985] 58 Comp. Cas. 390 (Ker.) [FB], which established that the liquidator cannot claim that the prized subscriber is a trustee, thereby negating the applicability of Section 10 of the Limitation Act.

Conclusion:
The court concluded that the liquidator is entitled to exclude an additional period of three months under Section 15(3) of the Limitation Act. Nonetheless, the claim filed on December 6, 1991, was still barred by limitation. The court dismissed the appeal, deleting a specific sentence from the company judge's judgment and reaffirming a general direction to entertain claims filed by the liquidator, with any limitation contentions to be decided on a case-by-case basis. The court expressed appreciation for the assistance provided by the advocates involved.

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