9911796707
TMI Blog1992 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 9 of 1980 on February 20, 1981. The said company petition was filed on April 25, 1979. By virtue of section 449 of the Act, the official liquidator became the liquidator of the company from the date of the winding-up order. In the affidavit filed in support of the present company application, the official liquidator states that though under sub-section (2) of section 543 an application under sub-section (1) of that section has to be filed within five years from the date of the order for winding-up, by virtue of section 458A of the Act in computing the period of limitation 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 immediately following the date of winding-up order shall be excluded and, therefore, the last date for filing Company Application No. 7 of 1989 was December 15, 1988. But the said company application was filed on January 16, 1989, as he was under the bona fide belief that the last date for filing the same was January 16, 1989, due to miscalculation in computing the period of limitation and that, therefore, the said delay of 33 days was neither intentional nor delib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the period prescribed by the Schedule the provisions of section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law." It cannot be disputed that section 543 of the Act is a special law and that it provides for a period of limitation different from that prescribed under the Limitation Act, 1963. The Companies Act, 1956, does not expressly exclude the application of section 5 of the Limitation Act. Therefore, the requirements of sub-section (2) of section 29 of the Limitation Act, 1963, are satisfied and section 5 of that Act can be invoked by the official liquidator for having the delay in filing the present application condoned on sufficient cause being shown. I am supported in this view by the decision of the Kerala High Court in Official Liquidator, Central Banking Corporation of Travancore Ltd. v. Dr. K. Ramakrishna Pillai [1970] 40 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1970] 40 Comp Cas 441 , wherein it is observed as follows (at p. 445) : "How anybody could have thought that the exclusion of a period anterior to the starting point for limitation and which could, therefore, never be included, could have the effect of postponing the date within which a proceeding has to be instituted, I am quite unable to understand." This decision of the Kerala High Court was not referred to in any of the three decisions of this court, referred to above, and anyhow the contention as advanced now was not advanced in those cases and, therefore, there was no occasion to consider the matter from this angle. The language of section 458A seems to support the contention of learned counsel for the respondents. A reading of section 458A makes this clear : "458A. Exclusion of certain time in computing periods of limitation 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tue of the provisions of section 458A in computing the period of limitation of five years prescribed by section 545(2) the period from the date of the commencement of the winding-up of the company to the date of the winding-up order (both inclusive) and a period of one year from the date of the winding-up order should be excluded. The winding-up proceedings commenced with the filing of the application on April 6, 1972, and the order of winding-up was made on October 27, 1972, and that period which comes to six months and 22 days should be excluded. In addition, the period of one year from October 27, 1972, to October 26, 1973, has also to be excluded. Thus, in all, one year, six months and 22 days has to be excluded in computing the period of limitation for filing the application. If so computed the last date for filing the misfeasance application under section 543(1) in the instant case will be May 19, 1979. The present application was filed on February 23, 1979, and is, therefore, well within time and is not barred by limitation. I am unable to agree with the contention of Shri N. Seshachary that only one year from the date of the winding-up order has to be excluded for an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am satisfied that there is sufficient cause for the delay of 33 days in filing the said application and that the said delay has to be condoned, keeping in view the following observations of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji ( Mst. ) [1987] 62 Comp Cas 370, 371 (SC). : "The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy." It is also to be noted in this connection that this court was closed from December 31, 1988, to January 15, 1989, because of holidays and Sankranthi vacation. In the circumstances, the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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