SHEKH KAUDU Vs. BERAR GINNING COMPANY LIMITED

JUDGEMENT

(1.) THIS appeal is against the dismissal of an application for winding up a company, made on 16th November 1925, under Section 166, Companies Act (7 of 1913). The company in question is the Barar Ginning Co. Ltd., Akot, which was formed in 1905 and worked only till 1910. On 15th September 1915 the Registrar of Joint Stock Companies struck its name off the register, so that it was dissolved on that day under Section 247(3) of the Act. The only respondent mentioned in the petition of appeal is the company itself. How notice was served on this defunct company in the lower Court or was to be served on it in this Court does not appear, nor would that be more possible on the appellant having given the ten year old corpse an appearance of life, but no home, by getting its name restored to the register after filing the appeal. He was saved from having his appeal thrown out on this ground by the granting of the application, which ha strenuously opposed, of one Narayan Udabhan to be made a respondent. Narayan Udebhan was at one time a director of the company and opposed the application in the lower Court, though in that Court's order he is wrongly stated to be one of the three co-applicants, the name of one of whom is omitted.

(2.) THE application has bean dismissed on the ground chat the applicant has failed to prove that he was a shareholder. He proved that he was a shareholder during the whole of the life of the company and at the time of its dissolution, but the learned District Judge seems to have thought that his failure to prove that he had not transferred his shares after its death led to a presumption that he had. That is a finding that something that is impassible actually did happen. The proviso to Section 247(5), Companies Act, shows clearly that a company can be wound up after it has been dissolved. But in the case of a defunct company the person on whose application this can be done cannot be an existing shareholder because there is no such person; it must be any person who was a shareholder at the time of the dissolution. The appellant is uadoubtedly entitled to apply for an order under Section 166 of the Act.

(3.) IN each of these two statements of exactly the same thing the first sentence seems correct enough but there is no apparent logical, connexion between it and the second. At first sight the natural answer to the question of limitation for such an application would be that it is governed by Article 181, of the Schedule of the Limitation Act, the right to apply accrues afresh on each day of the life of the company, but not after its death, so that the application can be put in at any time during its life or within three years of its death. In that view the present application is time barred.