1979 (8) TMI 176 - HC - Companies Law

Summary

Issues:
- Application for amending Company Application No. 40 of 1978
- Barred by limitation under section 543 of the Companies Act
- Interpretation of section 458A in computing the period of limitation
- Applicability of section 458A to the instant application filed under order VI, rule 17, CPC

Analysis:
The judgment pertains to an application seeking to amend Company Application No. 40 of 1978 filed by the official liquidator representing a company in liquidation. The key issue raised was whether the application was barred by limitation under section 543 of the Companies Act. The respondents contended that the application, filed on February 23, 1979, was beyond the five-year limitation period from the date of the winding-up order. However, the applicant argued that the period of limitation should be computed in accordance with section 458A, which excludes certain time periods. The court analyzed section 458A, which mandates the exclusion of the period from the commencement of winding-up to the winding-up order and one year thereafter in computing the limitation period. The court held that the exclusion period totaled one year, six months, and 22 days, making the application timely as it fell within the extended timeframe.

Regarding the interpretation of section 458A, the court rejected the respondent's argument that only one year from the winding-up order should be excluded. The court emphasized that both the period from the commencement of winding-up to the order and one year post-order must be excluded for computing the limitation period under section 543. The judgment clarified that the exclusion period under section 458A applies to applications filed under section 543(1), including the instant application filed under order VI, rule 17, CPC. The court dismissed the argument that section 458A does not apply to the instant application, stating that the substantive relief sought falls under section 543(1), thus making section 458A applicable.

Although various objections were raised on the merits of the reliefs sought through the proposed amendment, the court ruled that such objections could be addressed post-amendment approval. Consequently, the court allowed the application for amendment as requested, permitting the respondents to file an additional counter to the main Company Application No. 40 of 1978. The court made no order as to costs, directing the liquidator's costs to be borne by the estate.