Rastogi, J. - (1.) INSTANT special appeal has been filed by non-applicants against order dt. 19. 4. 91 passed by learned Single Judge in Company Application No. 15/98, whereby preliminary objection raised by appellant with regard to filing of application u/sec. 543 (1) of the Companies Act, 1956 ("the Act") being time barred, was over-ruled.
(2.) BRIEF facts, relevant for present controversy, are that M/s. Swadesh Polytex Ltd. Gaziabad moved an application for winding up of a Company M/s. Jaipur Spinning & Weaving Mills Ltd. ("company"), which was wound up vide order dt. 02. 12. 83. Official Liquidator attached to this Court was appointed as Liquidator of the Company. The Official Liquidator filed Application No. 15/89 on 01. 12. 98 u/sec. 543 (1) of the Act for seeking direction for inquiry to be made and for passing appropriate orders against non-applicants (appellant) to compensate the Company in liquidation for loss, together with interest @ 18% p. a. on account of their misconduct, misfeasance etc. Notice was issued by Company Judge on aforesaid application on 15. 12. 89. Reply to the application was filed by the appellant, and raised a preliminary objection that application u/sec. 543 (1) of the Act filed by the applicant is barred by limitation, which provides five years period of limitation commencing from the date of order of winding up. And therefore, prayed that the application filed by Official Liquidator be held incompetent and dismissed as time barred. Learned Company Judge, after taking note of S. 543 (2) read with Sec. 458a of the Act, came to the conclusion that total period of limitation provided under the Act is 5 years from the date of winding up order besides exclusion of one year following the date of winding up order, and thus considered the application within limitation. Hence, this special appeal. Shri R. C. Joshi, counsel for appellant urged that winding up order was passed on 02. 12. 80 and application u/sec. 543 (1) of the Act for misfeasance has been filed after five years from the date of winding up order, and the period of limitation for exclusion as provided u/sec. 458a of the Act has wrongly been extended because S. 458a starts with non obstante clause and extension of one year will not be applicable in respect of application for which a special provision, has been enacted by legislature under the Act, itself, and has reiterated the very submissions made before the Company Judge. Shri G. K. Garg, Counsel for Official Liquidator contended that by virtue of Sec. 458a of the Act, in computing period of limitation, the period from the date of commencement of the winding up of the company to the date of winding up order and a period of one year immediately following the date of winding up order have to be excluded in term of Sec. 458a and the learned Company Judge has not committed any error in over-ruling a preliminary objection, and has placed reliance upon decision in Ashoka Auto & General vs. Inder Mohan Puri (2005 (124) Company Cases (Delhi) 422), in support of his contention.
(3.) WE have considered rival submissions of both the parties and also persuade material on record. Sec. 458a has been incorporated by amendment in the Act, 1956, for exclusion of certain time in computing periods of limitation. Sec. 458a reads as under: " 458a. Exclusion of certain time in computing periods of limitation - Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908) or in any other law for the time beginning 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 Tribunal, the period from the date of commencement of the winding up of the company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded. " Section 458a starts with non obstante clause for purpose of computing period of limitation prescribed for any suit or application moved in he name and on behalf of a Company which is being wound up, and in this regard, period from the date of commencement of winding up of the company till the date of winding up order (both inclusive) and secondly a period of one year immediately following the date of winding up order, have been excluded, as specifically provided u/sec. 458a of the Act. Sec. 543 (2) provides period of limitation for application moved u/sec. 543 (1) of the Act. It reads as under:- " (2) An application under sub-section (1) shall be made within five years from the date of order for winding up or of the first appointment of the liquidator in the winding up, or of the misapplication, retaining, misfeasance of breach of trust, as the case may be, whichever is longer. " ;