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TMI Blog1988 (2) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... estion is : M/s. Maruti Limited was sought to be wound up by a petition dated May 16, 1977. A provisional liquidator was appointed on July 22, 1977, though final order for winding up was passed on March 6, 1978. The official liquidator preferred a claim petition under section 446(2) of the Companies Act (hereinafter referred to as the Act), on October 28, 1982, against the respondent M/s. Parry and Co. Ltd., contending that the last transaction took place on January 14, 1976, and the payment in account was alleged to have been made on April 14,1978, by cheque, after deducting certain amounts. The amounts are alleged to have been admitted on June 25, 1979. The respondent urged that the cause of action had arisen on January 14, 1976, when the last transaction took place and even after giving the benefit of section 458A of the Act, the claim is barred by limitation. The limitation for preferring the claim commenced on January 14, 1976, and hence the remedy became barred by time for its recovery even before the winding up order was passed. The cause of action having arisen, the date on which the winding up order was passed has no bearing so far as the cause of action is concerned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under : "458A. Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908), or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a 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 (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded." The residuary article 137 of the Limitation Act reads as under : "137. Any other application for which no period of limitation is provided elsewhere in this division. Three years When the right to apply accrues." It is not disputed at the Bar that the application under section 446(2) of the Act, that is, the claim by the company against the respondent, shall be governed by article 137 of the Limitation Act. While interpreting the provisions of a statute, one has to keep in mind that different provisions of the Act ought to be harmoniously construed so that they do not make the others redundant. All efforts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd enforce the same. Section 446(2) confers a specific jurisdiction upon the company court to determine the claim by or against the company. This jurisdiction commences only from the date of passing of the order of liquidation. Prior to the said date, the company court/judge had no jurisdiction to determine the claim. The remedy to the claimant becomes available only on the date of making the order of liquidation. The cause of action only gives a right of enforcement of the said right. The cause of action cannot be taken back for its enforcement when the remedy was not even available. On a plain reading of article 137 of the Limitation Act, the cause of action for the claim gives a right to a remedy through the company court only on the date the claimant gets a right to seek the remedy, the said date being the date of the winding up order. Resultantly, the cause of action to seek the relief under section 446(2) shall be the winding up order. For determining limitation, it shall be the date on which the petition under section 446(2) was moved. Three years have to be calculated from the date of the winding up order within which a petition by way of a claim can be preferred to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Co. Ltd. [1960] 30 Comp Cas 515 (at p. 521) : "The creditor may well take the risk to pursue his remedy in a civil court or wait for the decision of the winding up proceedings. He may well say to himself that if the order of winding up is going to be made, it would be so much waste of time and money on his part to pursue a remedy in a civil court. The financial state of the company may be such that it may be inadvisable to pursue the ordinary remedy in a court of law and he may well decide to await the decision of the company court and take his chance on receiving a portion of the dividends which would be paid out to the creditors. Simply because there is no specific embargo on the filing of the civil suit after the winding up petition is presented, it does not mean that he is compelled to pursue that remedy. The company law specifically provides that once the winding up order is made, no further proceedings or suits can be filed without the leave of the court, and because the winding up order dates back to the day when the winding up petition was filed, it can be argued quite logically that a creditor is entitled to await the final issue in the matter instead of hurrying to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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