9911796707
TMI Blog1994 (6) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision impugned in Appeal No. 64 of 1991. The question which requires to be considered in both these matters being common, both the matters are being disposed of by a common judgment. The short question that requires consideration in the present appeal is as to how time for filing a suit or an application for recovery of a claim on behalf of a company which is ordered to be wound up is to be calculated in view of the provisions of section 458A of the Companies Act, 1956. As far as the facts of both the matters are concerned, there is hardly any dispute. It would suffice to mention the brief facts of the appeal, which are as follows : A promissory note was executed on January 16, 1976. On July 7, 1978, a petition for winding up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prabhudas S. Budhwani [1978] 80 Bom LR 685. It was, inter alia , held in the case of Ch. S. Rao [1978] 80 Bom LR 685 that as far as the official liquidator was concerned, he got a right under section' 446(2)( d ) of the Companies Act to recover the claim by the "company for the first time when the winding up order is made, and that any application made by him for this purpose was governed by article 137 of the Limitation Act, 1963, under which the period of limitation is three years for applications riot otherwise provided for from the date when the right to sue accrues. The learned single judge in the case of Ch. S. Rao v. Prabhudas S. Budhwani [1978] 80 Bom LR 685, relied on a Full Bench decision of the Delhi High Court in Farida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition for liquidation was pending as also a period of one year from the date of the winding up order will have to be excluded. From a plain reading of the provisions of section 458A of the Companies Act, it appears that the said provision excludes certain time in computing the period of limitation for filing any suit or application in the name and on behalf of the company. It specifically mentions "... in computing the period of limitation prescribed for any suit or application ". The Limitation Act, 1963, prescribes the period of limitation for filing of suits or applications and further provides under several of its sections the period which can be excluded while computing the period of limitation. In our opinion, section 458A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding up order and one year thereafter and got revived thereafter. Thus, on the date of the filing of the petition for winding up of the company, out of three years available under article 35 of the Limitation Act in respect of a suit on a promissory note, two years five months and 204ays had elapsed. Time stopped running from July 7,1978, up to January 18, 1980, the period to be excluded under section 458A of the Companies Act and started running again, and the; time remaining available was six months and ten days. The same expired on July 28, 1980. The company application was, however, was filed on June 14, 1983, and was thus hopelessly time-barred. We fail to agree with the view taken by the learned single judge in the case of Ch. S. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was whether the recovery of the dues from certain parties by the judges summonses taken out by the official liquidator under some Understanding arrived by him with a bank which was a secured creditor could be said to be "in the name and on behalf of the company" as contemplated by section 458A of the Companies Act. The parties before the Division Bench were ad idem that but for the provisions of section 458A of the Companies Act, the claim would be time-barred. The Division Bench, inter alia , held (at pages 746, 748) : "This section (section 458A of the Companies Act) thus provides for longer periods of limitation for the suits or claims instituted 'in the name and on behalf of the company (under liquidation)'. The period from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line of reasoning adopted, by the learned single judge in Ch. S. Rao's case [1978] 80 Bom LR 685 is erroneous. Therein the learned single judge followed the decision in Faridabad Cold Storage and Allied Industry v. Official Liquidator of Ammonia Supplies Corporation ( P ) Ltd., AIR 1978 Delhi 158 ; [1978] 48 Comp Cas 432 (Delhi). In our view, the view taken by the Division Bench of the Madras High Court and the learned single judge (Suresh J., as he then was) in Company Application No. 1248 of 1983 is the correct view. In our opinion, under section 458A, no new cause of action arises in favour of the official liquidator. The cause of action accrued in favour of the company enures for the benefit of the official liquidator. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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