2008 (7) TMI 574 - SC - Companies Law

Whether misfeasance proceedings filed by the Official Liquidator on 1-12-1989 under section 543(1) of the Companies Act stood barred by limitation provided for in section 543(2) of the said Act? Held that - Appeal dismissed. Section 458A of the Companies Act, dealing with computation of the period of limitation, has to be read with section 543(2) of that Act. In our view, section 458A is squarely applicable to misfeasance proceedings instituted by the O.L. in the name of the company and on behalf of the company in Liquidation. Once an application is made in the name and on behalf of the company, section 458A would become applicable.

Issues Involved:
1. Whether misfeasance proceedings filed by the Official Liquidator under section 543(1) of the Companies Act were barred by limitation as per section 543(2).
2. Applicability of section 458A in computing the period of limitation for misfeasance proceedings.
3. The relationship between sections 543(1), 543(2), and 458A of the Companies Act and their interpretation.

Detailed Analysis:

1. Limitation for Misfeasance Proceedings:
The primary issue was whether the misfeasance proceedings filed by the Official Liquidator (O.L.) on 1-12-1989 were barred by the five-year limitation period prescribed under section 543(2) of the Companies Act. The winding-up order was passed on 2-12-1983, and the five-year period expired on 1-12-1988. The appellant argued that the proceedings were filed beyond the limitation period.

2. Applicability of Section 458A:
The appellant contended that section 458A, which allows for the exclusion of certain periods in computing the limitation period, should not apply to misfeasance proceedings under section 543(2). The argument was that section 543(2) is a standalone provision and should not be read with section 458A, which was intended to address conflicts between the Companies Act and the Limitation Act, 1963. The respondent argued that section 458A supplements the Limitation Act and provides for the exclusion of specific periods, thus not extending but merely computing the limitation period.

3. Interpretation and Relationship Between Sections:
The court examined the relevant provisions of the Companies Act, specifically sections 457, 458A, and 543. It noted a clear distinction between the "period of limitation" and the "computation of that period." Section 543(2) sets the limitation period for misfeasance proceedings, while section 458A provides for the exclusion of certain periods in computing this limitation.

The court clarified that section 543(2) does not exclude the applicability of sections 12 to 24 of the Limitation Act, which deal with the computation of the limitation period. Section 458A adds a specific exclusion period not covered by the Limitation Act, namely the period from the commencement of winding up to the date of the winding-up order plus one year.

The court disagreed with the appellant's reliance on the judgment of the Karnataka High Court in Kabini Papers Ltd., which held that the limitation period under section 543(2) could not be extended by section 458A. The court found this judgment incorrect, emphasizing the dichotomy between the period of limitation and its computation.

The court agreed with the Madras High Court's view in Official Liquidator v. Best & Crompton Engineering Ltd., which held that section 458A is universally applicable and provides for the exclusion of specific periods in computing the limitation.

Conclusion:
The court concluded that section 458A is applicable to misfeasance proceedings instituted by the O.L. in the name and on behalf of the company. It held that section 458A provides for the exclusion of the period between the commencement of winding up and the date of the winding-up order plus one year, thus computing the limitation period rather than extending it. The court approved the Bombay High Court's judgment in Gleitlargor (India) (P.) Ltd. and disapproved the Orissa High Court's judgment in B. Pattnaik Mines (P.) Ltd.

Final Judgment:
The court dismissed the appeal, holding that section 458A of the Companies Act should be read with section 543(2) for computing the limitation period for misfeasance proceedings, and thus the proceedings filed by the O.L. were not barred by limitation. The appeal was dismissed with no order as to costs.

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