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TMI Blog2006 (10) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the date of payment and for costs. 2. It is averred in the application that the applicant-company is ordered to be wound up by order dated 29/31-10-1996 passed by this Court in Company Petition No. 43/1992. The respondent herein was having commercial dealing with the applicant-company and he was granted loan of Rs. 1,60,020 and he has executed the promissory note on 20-7-1989 agreeing to repay the said amount along with interest at 21 per cent per annum and the said amount has not been repaid and wherefore, the application for recovery of the amount. 3. The respondent has filed objections statement denying the averments made in the application and contending that the application is barred by time as it is filed beyond the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the documents furnished by the Official Liquidator, Company petition was filed on 16-6-1992, by which time, 2 years 10 months and 26 days had already expired and only 34 days were left for filing the application for recovery of the amount in case of the promissory note dated 20-7-1989, whereas, the application is filed belatedly on 30-10-2000. In view of the provisions of section 458A of the Act which stipulates that notwithstanding anything in the Indian Limitation Act, 1908 or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a Company, which is being wound up by the Court, the period from the date of commencement of the winding up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim. In other words, as to when the right to recover the claim accrued to the company, and not on the basis that the right to apply accrues only on the date the winding up order is passed or the Official Liquidator is appointed as Provisional Liquidator as the Liquidator enforces the claim of the company. In computing the period of limitation, for claims to be made under section 446(2)( b ) of the Act, firstly, the applicability of the relevant article with reference to the nature of the claim, has to be decided and then the question as to whether such period of limitation had or had not expired on the date the petition for winding up was filed or the winding up proceeding commenced has to be determined. In the event it is found that as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would be the period from the date of filing of the winding up petition to the date of winding up order and one year thereafter. Even if the period from the date of passing of the winding up order i.e., 29/31-10-1996 and one year thereafter, that is up to 31-10-1997 is excluded, the application ought to have been filed within 26 days from 31-10-1997. However, the claim application is filed on 30-10-2000 and wherefore, the application is clearly barred by time. It is submitted by the learned counsel appearing for the Official Liquidator that payment was made by the respondent on 31-8-1996. However, the said contention cannot be accepted as the acknowledgement would extend the period of limitation only if the acknowledgement is taken befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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