SATYANARAYANA RAO J. -
(1.) THIS is an appeal by the official liquidator of the Union Bank of Malabar Ltd., against the order of the learned District Judge, South Malabar, dismissing an application under Section 235 of the Companies Act, 1913 in limine on the ground that it was barred by limitation. The application was against the managing director of the Union Bank of Malabar Ltd., its secretary, and also the auditor who was appointed by the general body at the annual general meeting. The official liquidator was appointed on 20th June, 1939, and the application was taken out under Section 235 of the Companies Act, 1913 on 20th June, 1942, 19th June, 1942, was a Sunday. The learned District Judge of South Malabar, without going into the merits of the application, dismissed the application on the ground that it was beyond three years, the period prescribed by Section 235 of the Act
(2.) THE short point, therefore, for consideration in this appeal is whether the view taken by the learned District Judge is correct. Section 235 of the Companies Act, 1913 was amended in 1936 by Act XXII of 1936 by which a period for filing an application under the statute was prescribed. THE portion of the section which is relevant for the purpose of this discussion is :
"the court, may, on the application of the liquidator, or of any creditor or contributory made within three years from the date of the first appointment of a liquidator in ht winding up or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer, etc."
The appellant's counsel relies upon Section 9 and 10 of the General Clauses Act and contends that the first day, i.e., the day on which the liquidator was appointed, should be excluded under Section 9 of the General Clauses Act, and that, as the court was closed on the 19th June 1942, the application filed on the next day is within time under Section 10 of the General Clauses Act even if he was not entitled to invoke Section 9 of the General Clauses Act. We think that the contention of the learned advocate for the appellant based on both the sections is correct. Section 9 of the General Clauses Act provides
"In any Central Act or Regulation made after the commencement of this Act, it shall sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and for the purpose of including the last in a series of days or any other period to time, to use the word 'to'."
(3.) AN application under Section 235, it is no doubt true, has to be made within three years from the date of the first appointment of the liquidator. But, in computing the period of three years, as the word "from" is used in the Act, it is contended that the first day should be excluded from computation. The learned District Judge thought that, as the word "within" was used besides the word "from", there was no scope for the application of Section 9 of the General Clauses Act. We do not share that view. The word "within" was used to denote the period during which action had to be taken by the liquidator by making an application under the section. But, in order to determine the period, one has to compute it beginning with the day on which the liquidator was first appointed. Under Section 9 of the General Clauses Act, as the word "from" is used in Section 235 of the Companies Act, 1913, the first day should ordinarily be excluded. Section 9 of the General Clauses Act gives statutory recognition to the well-established principle applicable to the construction of statues that ordinarily in computing time the rule observed is to exclude the first and include the last (vide the decision in Radcliffe v. Bartholomew and the passage in Halsbury's Laws of England, 2nd Edn. at page 138). It was, however, argued on behalf of the respondents that Section 9 applies only where both the words "from" and "to" occur in a statute and not otherwise. This construction implies that the word "and" used in Section 9 is not used is junctively but conjunctively but, on a plain reading of the section it is obvious that the word is used only disjunctively to indicate two things, namely, if the first day has to be excluded it is sufficient to use the word "from", and if the last day is to be included the word to be used is "to".;