9911796707
TMI Blog1981 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... of November 13, 1975, the court ordered that the winding up shall continue but subject to the supervision of the court. On July 14, 1978, the official liquidator who had, in the meanwhile, been appointed for the voluntary liquidation filed a claim against the appellant demanding Rs. 4,160. Preliminary objection was raised by the appellant that the application was barred by time. This plea has been negatived by the learned company judge and the appellant has come up in appeal. Why the plea of limitation was taken was because, according to the appellant, limitation would start from April 27, 1973, and as the period under article 137 of the Limitation Act is 3 years the application filed in 1978 would be barred by time. Now, section 522 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court. One of the provisions is section 458A of the Companies Act which lays down that in computing the period of limitation prescribed for a suit or application in the name and on behalf of the company which is being wound up by the court the period from the date of commencement of the winding up of the company to the date on which the winding-up order is made and the period of one year immediately following the date of winding-up shall be excluded. Now, April 27, 1973, being the date of special resolution in terms of section 441(1) of the Act, that would be the date of commencement of winding up and the order of supervision having been passed on November 13, 1975, the period between April 27, 1973, and January 13, 1975, and a year th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s him to be treated as if he were (see AIR 1930 PC 54 CIT v. Bombay Trust Corporation Ltd. ) . Similar are the observations in AIR 1958 SC 687 at 695 ( K. Kamaraja Nadar v. Kunju Thevar ) to the effect that a deeming provision creates a legal fiction and the effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under these circumstances. Here, in this case, therefore, though there is no order of the court for winding up the company, yet by virtue of section 526(2), the court's order making the winding up subject to supervision of the court shall for all purposes be deemed to be an order of the court for winding up the company, and that would inevitably and immediately attract section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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