(1.) I have little doubt that S.5 of the Limitation Act, 1963 applies in a case like this; and, were I satisfied that there was sufficient cause within the meaning of that section, I would have allowed this application made thereunder. But I am not so satisfied and must therefore dismiss the application.
(2.) The proceeding instituted out of time is an application under S.543 of the Companies Act, 1956 read with S.45H of the Banking Regulation Act, 1949 against the directors and other officers of a banking company that is being wound up. The application is by the liquidator of the company. So far as the directors are concerned, the period of limitation is prescribed by sub-s.(2) of S.45 O of the Banking Regulation Act, and so far as the others are concerned, by sub-s.(2) of S.543 of the Companies Act. Sub-s.(2) of S.45 O of the Banking Regulation Act reads thus:
"(2) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (9 of 1908), or S.543 of the Companies Act, 1956 Cl of 1956) or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director of a banking company which is being wound up or for the enforcement by the banking company against any of its directors of any claim based on a contract, express or implied, and in respect of all other claims by the banking company against its directors, the period of the limitation shall be twelve years from the date of the accrual of such claims or five years from the date of the first appointment of the liquidator, whichever is longer".
And sub-s.(2) of S.543 of the Companies Act thus:
"(2) An application under sub-s.(1) shall be made within five years from the date of the order for winding up, or of the first appointment of the liquidator in the winding up, or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer".
The first appointment of the liquidator in the winding up in this case was on 28-5-1962, and the present application is made on the basis that this is the starting point for limitation both against the directors and the other officers, providing as it does the longer of the periods (Strictly speaking, the period that expires latest) mentioned in the statutes. Therefore, the misfeasance application ought to have been instituted on or before 28-5-1967 both against the directors and the others, but it was instituted only on 29-7-1969.
(3.) Unlike the Indian Limitation Act, 1908 which contained no residuary provision (like Art.120 in respect of suits) in so for as applications were concerned - Art.181, it may be recalled, was authoritatively construed as confined to applications under the Code of Civil Procedure - the Limitation Act, 1963 in deliberate departure from the earlier statute has placed Art.137 in a separate part, Part II of the Third Division, making it abundantly clear that its operation is not to be limited, by an application of the ejusdam generis or the noscitur a sociis rule to applications of the nature specified in Part I of the Division see in this connection Manager, P. K. Forwall v. Labour Court (1968 LXX Bom. LR 104 (FB)) which deals with this question very exhaustively, and with great respect, gives very good reasons for holding that Art.137 of the Limitation Act, 1963 applies to all applications, under whatever law made, for which the preceding articles in the Third Division make no provision. Therefore, it follows that the period of limitation prescribed by the Schedule to the Limitation Act, 1963 for a misfeasance application is three years from the date when the right to apply accrues. The period prescribed both by sub-s.(2) of S.543 of the Companies Act and by sub-s.(2) of S.45 O of the Banking Regulation Act is different being five years under the former and 12 years or five years from different starting points, whichever expires later, under the latter. There can be no doubt that the provisions for limitation in the companies Act and the Banking Regulation Act, are, so far as limitation is concerned, special laws, the Limitation Act being the general law see Kaushalya Rani v. Gopala Singh ( AIR 1964 SC 260 ) and, that being so, every condition required for attracting sub-s.(2) of S.29 of the Limitation Act, 1963 is satisfied. (I am assuming, what I do not think is the case, that the condition mentioned in the first part of sub-s.(2) of S.29 of the Limitation Act, 1963, governs the applicability of the second part of the sub-section. I think the two parts are independent provisions, notwithstanding the conjunction, "and" and that to attract the second part, the special or local law need not prescribe a different period of limitation. Else the words "for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law" occurring in the second part would be mere surplusage). S.5 of the Limitation Act, 1963 is thus attracted along with the remaining sections mentioned in sub-s.(2) of S.29, and since, unlike the Act of 1908, this Act does not require that the section should, so far as applications other than those specified therein are concerned, be made applicable by or under any enactment, the result is that S.5 is applicable in this case.;