9911796707
TMI Blog2006 (4) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... n the sum of Rs. 46,720 at 12 per cent per annum from the date of application i.e. , 6-10-1997 till the date of judgment and for payment of future interest and costs. 2. It is averred in the application that by order dated 8-9-1995 passed in Company Petition Nos. 49/94 and 157/92, M/s. Shivamoni Steel Tubes Limited was ordered to be wound up and the Official Liquidator attached to this Court became the Liquidator of the said Company by virtue of the provisions of section 449 of the Act. It is further averred, that as per the statement of affairs and the books of account submitted by the Ex-Directors of the applicant-company, a sum of Rs. 46,720 was due to be paid by the respondent as on 1-10-1989 and on addition of interest at 12 per c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Official Liquidator, has been examined as PW1 and he got marked Exs. P1 to P3. On behalf of the respondent, no oral evidence was adduced nor any document was got marked. 5. I have heard the learned counsel appearing for the parties and having regard to the contentions urged, the points that arise for determination in this application are : 1.Whether the application filed is barred by time? 2.Whether the applicant is entitled to recover Rs. 91,662.64 ps. or any amount from the respondent as sought for in the application ? 6. I answer the points for determination as follows : Point No. 1 in the affirmative and Point No. 2 in the negative for the following reasons : Re: Point No. 1: The respondent has specifically cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Legislature, by way of an amendment, brought into force the provisions of section 358A, so that an Official Liquidator, who is supposed to be in custody of the assets and liability of the company, would be able to file a claim on behalf of the company, which was legally enforceable on the date of winding up, after excluding the period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears would expire on 1-10-1992 and wherefore, it is clear that even on the date when the winding up proceedings commenced on 6-4-1994 or even assuming that the winding up proceedings came to be allowed by the AAIFR on 19-2-1993, it is clear that the period of limitation had expired when the winding up proceedings commenced. It is contended by the learned counsel for the Official Liquidator that the date on which the application was filed before the BIFR and the time taken before the BIFR for placing the order of AAIFR dated 19-2-1993 must also be excluded and if such period is excluded, the application would be in time. There is no merit in this contention as it is clear from the provisions of section 458A of the Act that the period which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter and the balance sheet for the year 1995, no other material is produced to support the contention that respondent was due in a sum of Rs. 46,720 to the applicant-company in liquidation. The said entry is not supported by any vouchers or documents or purchase orders and the person who had maintained the books of account on behalf of the company has not been examined to show that the accounts had been maintained in the regular course of the company and wherefore, the entry in the account books does not substantiate the debt due by the respondent nor the claim is supported by entries in vouchers or documents to prove the debt. The facts elicited in the cross-examination of PW1 would clearly show that the balance sheet for the year 1989 was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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