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TMI Blog1993 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... he amounts due to the company. Subsequently, the company filed C.M.P. No 14913 of 1983 to permit the filing of "claims" under section 446 of the Companies Act, hereinafter referred to as "the Act", before this court for realising the dues to the company. This court by order dated August 18, 1983, refused to grant permission to file claims in this court and directed the liquidator to file suits in the respective courts having jurisdiction for realising the dues to the company. That order was set aside by the Supreme Court in Sudarsan Chits (India) Ltd. v. G. Sukumaran Pillai, AIR 1984 SC 1579; [1985] 58 Comp. Cas. 633 holding that the winding up court has jurisdiction to have recourse to section 446 of the Act since the order of winding up was neither cancelled nor recalled nor revoked nor set aside by the appellate judgment. Accordingly, the Supreme Court allowed the application filed by the official liquidator and directed the liquidator to file claim petitions under section 446(2) of the Act in the company court itself, for realising the amounts due to the company. The claim from which the present M.F.A. arises is one such claim. The claim was filed on December 6, 1991. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andoor Jupiter Chits (P.) Ltd. [1988] 2 KLJ 434; [1989] 65 Comp. Cas. 178 ). The contention against the exclusion of the period of three months from the date of appointment of the liquidator provided under section 15(3) of the Limitation Act is that the period of one year provided under section 458A of the Companies Act covers this period of three months and, therefore, the liquidator is entitled to only a longer period of one year provided under section 458A of the Companies Act. The three-month period under section 15(3) of the Limitation Act commences from the date of appointment of the liquidator. The one-year period under section 458A of the Companies Act commences from the date of winding up order. The contention against exclusion of the three-month period cannot be accepted since this is a different period of exclusion which has to be added with other available periods of exclusion in computing the total period to be excluded. (See Maqbul Ahmad v. Onhar Pratap Narain Singh, AIR 1935 PC 85 and Bhagwan Swamp v. Municipal Board, Ujhani, AIR 1970 All 652 [FB]). In this case, even though the winding up order was passed as early as on October 13, 1981, the liquidator was able to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise". In order that the business may come within the definition of "banking", the deposit of money should be withdrawable by cheque, draft, order or otherwise. Admittedly, the amount with the company in liquidation was not withdrawable by cheque, draft or order. Reference may also be made to section 7 of the Banking Regulation Act, which provides that no company shall carry on the business of banking unless it uses as part of its name at least one of these words, viz., "bank", "banker" or "banking". The company in liquidation was not using any of these words as part of its name. The company did not satisfy the conditions under section 12 of the Banking Regulation Act. So also the company had no licence under section 22 of the Act, from the Reserve Bank of India. So much so, the contention that the company was doing a banking business and, therefore, section 45-0 of the Banking Regulation Act which provides for a special period of limitation is applicable in this case, is without merit. C. Varavmani David v. Bank of Madurai Ltd., AIR 1983 Mad 15, does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less be entertained and admitted by the liquidator and the court even after the settlement of the list of creditors has been made by the court without disturbing previous dividends and commitments of the liquidator and unless there are special reasons in a particular case for excluding such claim. In doing so the court which supervises the liquidation may impose any terms and conditions that it thinks proper in the best interests of a fair liquidation including such conditions that previous dividends should not be disturbed or even in a proper case postponing such delayed or barred claim after these claims proved within time". Reference was made to the Indian Trusts Act by N. Suryanarayana Iyer, by Sri. G. Unnikrishnan, appearing as amicus curiae, wherein the learned author relying on Knowles v. Scott [1891] 1 Ch 717, Smith and Sons Ltd. v. Goodman [1936] Ch 216 and Pulsford v. Devenish [1903] 2 Ch 625, observed as follows (second edition, page 346, para 7): "But the liquidator of a company is not a trustee for the creditors or the contributories". Even in case it is taken that the Companies Act imposes on the liquidator liability in the nature of trust and, therefore, a claiman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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