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TMI Blog1981 (3) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... Unico Trading and Chit Funds (India) (P.) Ltd. (in liquidation). The aforementioned company was ordered by this court to be wound up on February 4, 1977, in Company Petition No. 7/1975 filed on October 3, 1975. The details of the claim of the official liquidator and the resistance to the same by the respondents may be briefly stated as follows : The 1st respondent, S. H. Lohati of Poona (Pune), was a member of the chit group, P. E. 1, having Chit No. 15. The value of the chit was Rs. 2,500. At the auction held for that chit group in the Pune branch of the company in liquidation he was the highest bidder on August 23, 1973. He received the prize amount on October 8, 1973, and on the same date executed a promissory note for Rs. l,437.50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by time and, therefore, the application is liable to be dismissed with costs. In the light of the pleadings as above the matter was set down for enquiry on March 6, 1981. On that day, Shri Chandrasekhar V. Joshi, of the Pune Bar, appearing for respondents, submitted that the respondents give up all their defence except the one relating to the question of limitation and the application, therefore, may be disposed of solely on that question. Accordingly arguments were heard on the question of limitation assuming that the respondents had no other defence against the claim. Therefore, the only point for determination is whether the application filed on August 22, 1980, 6 years 10 months and 14 days after the date of the pronote, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has contended that the application under section 446(2)( b ) of the Act not being a suit for recovery of money due under a pronote or under any other cause of action, only the residuary article 137 of the Indian Limitation Act is attracted and under that article the official liquidator may present the application within 3 years from the date of the winding-up order made by the court plus the periods to be excluded under section 458A of the Act. The thrust of his argument is that under article 137 of the Limitation Act, the limitation commences from the time the right to sue accrues and the right accrued to the official liquidator only on the date the court made the winding-up order on February 4, 1977, and the application having been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only if the "Money due" to the company was recoverable on the date of application in a suit and did not include any money which was not so recoverable. (Reliance was placed on the Privy Council decision in the case of Hansraj Gupta v. Dehra Dun Mussourie Electric Tramway Co. Lid. [1933] 3 Comp. Cas. 207 ; AIR 1933 PC 63). (2)The expression "any claim" occurring in section 446(2)( b ) of the Act should be interpreted as any claim enforceable at law. (3)The relevant date for computing the period of limitation would be the date of the winding-up order made by the company court as the official liquidator or other claimants would not have acquired the right to enforce such claim or claims under section 446(2)( b ) on any date prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the official liquidator had 3 years plus the maximum advantage of section 458A of the Act which would be the exclusion of 1 year plus another year and 4 months. Thus, the official liquidator could have presented the application within five years and four months from February 4, 1977. Therefore, the application filed on August 22, 1980, is well within time and is not barred by time. The respondents not having pressed or proved the other defences pleaded, are liable to pay to the official liquidator the sum of Rs. 2,323.50 together with costs and current interest at 6 per cent, per annum on Rs. l,437.50 from the date of the application till date of realisation. The application is allowed with costs and the order will accordingly issue. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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