In respect of a legally enforceable claim, which could have been made by the company on the date on which the application for winding up is made, the Official Liquidator (OL) could file claim within a period of four years from the date of winding up order, by taking the benefit of one year period immediately following the date of the winding up order, as provided under section 458A of the Act and the three years period provided under Article 137 of the Limitation Act.
1. These appeals arise out of a common judgment dated 2-3-2001 of the learned Company Judge of this Court in C.C. Nos. 25/1994, 15/1994, 23/1994, 27/1994, 26/1994, 22/1994, 24/1994 and 2/1994 respectively in C.P. No. 57/1989. Since the issues raised are common we propose to dispose of these appeals by a common judgment.
2. The appellants in these appeals are the respondents in C.C.Nos.25/1994, 15/1994, 23/1994, 27/1994, 26/1994, 22/1994, 24/1994 and 2/1994 filed in C.P. No. 57/1989. By order dated 4-4-1990 in C.P. No. 57/1989 of the learned Company Judge M/s. Chandini Chits Private Ltd., a Company registered under the Companies Act, 1956 (hereinafter referred to as ‘the Act’) was ordered to be wound up and the Official Liquidator attached to this Court was appointed as the Liquidator of the Company. The winding up proceedings in C.P. No. 57/1989 commenced on 16-10-1989, the date on which the said Company Petition was filed before this Court. The order of winding up was passed on 4-4-1990. Thereafter, the Official Liquidator filed claims before the Company Court under clause (b) of sub-section (2) of section 446 of the Act.
3. The appellants in these appeals, who were respondents in those claims filed written statement contending, inter alia, that the claims are barred by limitation. However, the learned Company Judge by a common judgment dated 2-3-2001 rejected the said contention, relying on the judgment of a Full Bench of this Court in Ulahannan v. Wandoor Jupiter Chits (P.) Ltd. 1988 (2) KLT 636, and decreed the claims in part together with interest at the rate of 12% per annum from the respective due dates till realisation, from the assets of the firm M/s. Chandini Financiers, the 2nd respondent in these appeals, from the appellants and others who were arrayed as respondents in the Company Claim as its Partners, and also from the assets of the deceased respondents in the hand of their legal representatives. The said common judgment of the learned Company Judge dated 2-3-2001 is under challenge in these appeals.
4. We heard the arguments of Sri. K.G. Balasubramanian, the learned counsel for the appellants and also Sri. K. Moni, the learned Counsel for the Official Liquidator.
5. The main issue that arises for consideration in these appeals is as to whether the claims filed by the Official Liquidator under clause (b) of sub-section (2) of section 446 of the Act are barred by limitation.
6. Sri. K.G. Balasubramanian, the learned counsel for the appellants would contend that, the claims filed by the Official Liquidator are hopelessly barred by limitation, even after reckoning the extended period prescribed under section 458A of the Act.
7. Per contra, Sri. K. Moni, the learned Counsel for the Official Liquidator would contend that, if the periods prescribed under section 458A of the Act are reckoned along with the normal period of limitation prescribed under Article 137 of the Limitation Act, 1963 the claims are not barred by limitation. To buttress this argument, reliance is placed on the judgment of the Full Bench of this Court in Ulahannan’s case (supra).
8. As we have already noticed, the winding up proceedings in C.P. No. 57/1989 commenced on 16-10-1989, the date of which the said Company Petition was filed before this Court. An order of winding up was passed on 4-4-1990 and the Official Liquidator attached to this Court was appointed as Liquidator of the Company. During the course of winding up, the Official Liquidator filed C.C. No. 25/1994 on 24-8-1994, C.C. No. 15/1994 on 12-8-1994, C.C. No. 23/1994 on 24-8-1994, C.C. No. 27/1994 on 24-8-1994, C.C. No. 26/1994 on 24-8-1994, C.C. No. 22/1994 on 24-8-1994, C.C. No. 24/1994 on 24-8-1994 and C.C. No. 2/1994 on 3-6-1994.
9. Sub-section (1) of section 446 of the Act states that, when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose. Sub-section (1) of section 446 of the Act, therefore, relates to proceedings against the company and provides for stay of proceedings already pending on the date of the winding up order or on the date of appointment of the provisional liquidator. It also bars the commencement of any proceeding after the said date against the company without the leave of the Court.
10. Sub-section (2) of section 446 of the Act, which was introduced by the Companies (Amendment) Act, 1960 states further that, the Court shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company; and (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company; whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960 (65 of 1960). Sub-section (2) of section 446 of the Act, therefore, confers jurisdiction on the Court which is winding up the company to deal with suits, proceedings or claims by or against the company as well as applications under section 391 of the Act and the question of priorities.
11. The object of sub-section (2) of section 446 of the Act is to save the company in liquidation from long drawn out and expensive litigation and to accelerate the disposal of the winding up proceedings. In Sudarshan Chits (I.) Ltd. v. Sukumaran Pillai (1984) 4 SCC 657 the Apex Court observed that, sub- section (2) of section 446 specifies the contours of the jurisdiction of the Court which is winding up the company. It confers special jurisdiction on the Court which is winding up the company to do things that are set out in the various sub-clauses, notwithstanding anything contained in any other law for the time being in force. Sub-section (2) of section 446 of the Act thus confer special jurisdiction on the Court winding up the company, which otherwise it may not have enjoyed.
12. A claim filed by the Official Liquidator under sub-section (2) of section 446 of the Act is governed by Article 137 of the Limitation Act, 1963 and the right to file a claim under the said sub-section, in respect of a claim enforceable at law on the date of the winding up order, arises on the date on which the winding up order is passed. Article 137 of the Limitation Act reads thus;
