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TMI Blog1968 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... re was sufficient cause within the meaning of that section, I would have allowed this application made thereunder. But, I am not so satisfied and must, therefore, dismiss the application. The proceeding instituted out of time is an application under section 543 of the Companies Act, 1956, read with section 45H of the Banking Regulation Act, 1949, against the directors and other officers of a banking company that is being wound up. The application is by the liquidator of the company. So far as the directors are concerned, the period of limitation is prescribed by sub-section (2) of section 45-O of the Banking Regulation Act, and, so far as the others are concerned, by sub-section (2) of section 543 of the Companies Act. Sub-section (2) of section 45-O of the Banking Regulation Act reads thus : "(2) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (9 of 1908), or section 543 of the Companies Act, 1956 (1 of 1956), or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director of a banking company which is being wound up or for the enforcement by the banking company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation Act, 1963, for a misfeasance application is three years from the date when the right to apply accrues. The period prescribed both by sub-section (2) of; section 543 of the Companies Act and by sub-section (2) of section 45-0 of the Banking Regulation Act is different, being five years under the former or 12 years or five years from different starting points, whichever expires later, under the latter. There can be no doubt that the provisions for limitation in the Companies Act and the Banking Regulation Act are, so far as limitation is concerned, special laws, the Limitation Act being the general law-see Kaushalya Rani v. Gopal Singh; AIR 1964 SC 260 and, that being so, every condition required for attracting sub-section (2) of section 29 of the Limitation Act, 1963, is satisfied. I am assuming, what I do not think is the case, that the condition mentioned in the first part of sub-section (2) of section 29 of the Limitation Act, 1963, governs the applicability of the second part of the sub-section. I think the two parts are independent provisions, notwithstanding the conjunction, "and", and that, to attract the second part, the special or local law need not prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be available as against the directors, the persons primarily responsible, but would be available as against the others. The argument founded, it is said, on Thambu Devi Ram v. Addl. Director, Consolidation of Holdings AIR 1968 Punj. 282 and the decision of the Supreme Court in Civil Appeal No. 1864 of 1967 Venkateswara Rao v. Narasimha Reddy [1969] AIR 1969 SC 872, that the Companies Act and the Banking Regulation Act are, by themselves, complete and self-contained codes and, therefore, by necessary implication, exclude the application of the Limitation Act, so that there can be no question of section 29 thereof, and through section 29, section 5 being attracted, impresses me even less. For, I do not for a moment think that these statutes are complete and exhaustive codes so far as limitation is concerned. Indeed, the non-obstante clause already referred with which sub-section (2) of section 45-0 of the Banking Regulation Act, and the like clause, "Notwithstanding anything contained in the Indian Limitation Act, 1908" with which section 458-A of the Companies Act open, indicate that the provisions of the Limitation Act do apply except to the extent that they are ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Act, there was a clear decision of this court in Official Liquidator v. Joseph August [1966] KLJ 246 to the effect that it was not. The affidavit filed in support of the application does not disclose when the liquidator first adverted to the question of misfeasance (whether he adverted to it before the period specified by sub-section (2) of section 543 of the Companies Act and sub-section (2) of section 45-0 of the Banking Regulation Act had expired and, if so, why he was unable to make the application within that period) or when he found comfort in section 458A of the Companies Act. It does not appear that his reliance on section 458A was the real reason for his not bringing the misfeasance application in time. The mistake pleaded by the liquidator was a mistake of law. It is true that the law is not that a mistake of law (as distinguished from an ignorance of one's rights which was the case considered in Roles v. Pascall Sons [1911] 1 KB 982 ) is under no circumstances a sufficient cause within the meaning of section 5 of the Limitation Act and that the true test is whether, under the special circumstances of the case, the party concerned acted under an honest t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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