1997 (8) TMI 406

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..... arted for winding up of the company. Therefore, it was argued on behalf of the respondents that the company is not entitled to enforce a claim which was already barred at the time of commencement of the winding up proceedings. The trend of decisions in this respect is that a barred claim cannot be revived by the commencement of winding up proceedings and that the Official Liquidator is not acquiring any new right to enforce the claims of the company. But Shri Mony, the learned counsel for the Official Liquidator argued on the strength of a Full Bench decision of this Court reported in Kerala Fisheries Corpn. v. P.S. John 1996 (1) KLT 814 (FB) that these claims are not barred. The question decided in the above Full Bench case was whether .....

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..... right of the company to recover any loss sustained by it from those responsible for the loss. Once a winding up proceedings intervene, a new remedy is given under section 543 of the Act to the liquidators and the creditors and contributors of the company, a remedy they did not have before the winding up order, for the enforcement of the above substantive right. On that ground the learned Judge found that it is fallacious to argue that whenever the right to institute a suit is barred by limitation the right to make an application under section 543 is lost. But in these cases the right to recover the amounts due to a company is not a new right given to the company after the commencement of the liquidation proceedings. It is an existing right .....

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..... The learned counsel also cited a Full Bench decision of the Madras High Court reported in Best Crompton Engg. Ltd. v. Official Liquidator, AIR 1995 Mad. 20 wherein it was held that the right of the Official Liquidator is not a new right and it is only the right of the Company which went into liquidation that was being enforced. 5. The learned counsel also cited two decisions of this Court, one by a Full Bench and the other by a Division Bench. In the Full Bench case, Ulahannan v. Wandoor Jupiter Chits (P.) Ltd. 1988 (2) KLT 636 (FB) the question was whether the starting point of limitation is the date on which the winding up order is passed on the date on which the Official Liquidator was appointed as the Liquidator of the com .....

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