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TMI Blog2002 (11) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the aforesaid provisions merely exclude the period, during which a company was being wound up by the Court from the date of the commencement of the winding up till the order of winding up is made and an additional period of one year immediately following the date of the winding up. In other words, in respect of a legally enforceable claim, which claim could have been made by the company on the date on which the application for winding up is made, could be filed by the official liquidator by taking the benefit of section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under Article 137 of the Limitation Act. But by no stretch of imagination, the said provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions of the Limitation Act, then the appointment of official liquida- tor on an application being filed for winding up of the company, would not revive the barred date. It appears that the aforesaid view of the Karnataka High Court is in agreement with the decision of the Madras High Court in Official Liquidator v. Southern Screws (P.) Ltd. [1988] 63 Comp. Cas. 749 and is in variance with the two Full Bench decisions, one of Delhi High Court in Faridabad Cold Storage Allied Industry v. Official Liquidator of Ammonia Supplies Corpn. (P.) Ltd. AIR 1978 Delhi 158 and the other of Kerala High Court in K.P. Ulahannam v. Wandoor Jupiter Chits (P.) Ltd. AIR 1989 Ker. 41. In the absence of any authoritative pronouncement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded." In the case of Faridabad Cold Storage Allied Industry ( supra ) the ques-tion for consideration was as to what is the period of limitation for a claim filed under section 446(2) of the Companies Act and what is the starting point of the said period of limitation. It was held by the Full Bench of Delhi High Court that any such application in respect of a claim filed under section 446(2) of the Companies Act is covered by the residuary article under Article 137 of the Limitation Act and the period of limitation is three years from the date when the right to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Article 137 of the Limitation Act. In the aforesaid case, the Full Bench of Kerala High Court came to hold that the starting point of limitation for claim under section 446(2)( b ) is the date on which the winding up order is passed or a provisional liquidator is appointed and Article 137 of the Limitation Act applies to such proceedings. It further held that the effect of section 458A of the Companies Act is that the period from the date of commencement of winding up of the company to the date on which the winding up order is made and a further period of one year are to be excluded in computing the period of limitation. But where a claim which was barred on the date and winding up petition is filed, would revive on account of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 458A of the Companies Act, it is crystal clear that the aforesaid provisions merely exclude the period, during which a company was being wound up by the Court from the date of the commencement of the winding up till the order of winding up is made and an additional period of one year immediately following the date of the winding up. In other words, in respect of a legally enforceable claim, which claim could have been made by the company on the date on which the application for winding up is made, could be filed by the official liquidator by taking the benefit of section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under Article 137 of the Limitation Act. The Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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