1998 (1) TMI 485 - HC - Companies Law

Summary

Issues:
- Application for order-cum-decree under section 446(2) of the Companies Act.
- Contention of the respondent regarding the claim being barred by the law of limitation.
- Dispute over the loan transactions and liability of the respondent.
- Lack of document production by the official liquidator.
- Interpretation of limitation period under section 458A of the Companies Act.

Analysis:
The judgment delivered by S.D. Pandit, J., pertains to an application filed by the official liquidator seeking an order-cum-decree against the respondent under section 446(2) of the Companies Act. The official liquidator claimed that the respondent had taken loans of Rs. 6,000 and Rs. 16,000, which remained unpaid, resulting in a total claim of Rs. 30,567.50. However, the respondent contested the claim on the grounds of the law of limitation, disputing his liability for the loans, particularly one given to his minor son. The official liquidator failed to produce supporting documents for the claim during the proceedings.

The court noted that the loans in question were advanced in 1971 and 1972, while the winding-up order against the company was passed in 1976. Considering the law of limitation, it was observed that the claim for the loans had become time-barred even before the filing of the original petition for winding up in 1976. The court highlighted that a petition for winding up could not be based on a debt barred by limitation. Additionally, the official liquidator did not file the application within the extended limitation period provided under section 458A of the Companies Act, which allows for an additional year for counting the period of limitation from the date of winding up order.

Consequently, the court held that the claim for the order-cum-decree was already barred by the law of limitation as per Article 137 of the Limitation Act, 1963. The judgment referenced precedents from the Full Bench of the Delhi High Court and a single judge of another case to support this decision. As a result, the application was rejected, emphasizing that the claim could not be entertained due to being time-barred. No costs were awarded in the circumstances of the case.