9911796707
TMI Blog1990 (11) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents Nos. 2, 3 and 4 are impleaded as sureties for the debt. On behalf of the first respondent a counter-statement was filed raising the contention that the claim is barred by limitation. It was also prayed that in case the plea of limitation cannot be accepted, this court may waive the interest and allow the respondent to pay the principal amount in three bimonthly instalments. Admittedly the last instalment was paid by the respondent on January 29, 1980. Winding-up petition of the claimant company was filed on January. 2, 1981, and winding-up order was passed on October 13, 1981. Subsequently, the order of winding-up was modified and a scheme was approved in appeal. The appellate judgment was dated October 8, 1982. In the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and an additional period of one year under section 458A of the Companies Act, the claim is barred by limitation. Such a contention cannot be accepted. A Full Bench of this court in K.P. Ulahannan v. Wandoor Jupiter Chits ( P. ) Ltd. [1988] 2 KLT 636 ; [1989] 65 Comp Cas 178 , 187, para 9, held that "since the right of the official liquidator to apply under section 446(2)( b ) arises only on the passing of a winding-up order or on the appointment of a provisional liquidator the starting point of limitation for claims under the said sub-section is the date on which the winding-up order is passed or a provisional liquidator is appointed". The right to file a claim under section 446(2) of the Companies Act is a special right conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction should be that which favours the right to sue rather than that which bars the right ( see Jethmal v. Ambsingh, AIR 1955 Raj 97 [FB] and Raghuraj Singh v. Sobhaman, AIR 1951 All 485 [FB]). Thus, the claimant is entitled to exclude the period from the date of the winding-up order up to August 16, 1984, as well as the period from the date of commencement of the winding-up of the company to the date on which the winding-up order was passed (from January 2, 1981, to October 13, 1981, namely, 9 months and 11 days), and a further period of one year. Thus, the liquidator is entitled to 4 years, 9 months and 11 days from August 16, 1984. The present claim which was filed on July 22, 1988, is accordingly within time. The conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
