SREETHILAKAM CHITS AND FINANCE P LTD Vs. SUKUMARAN

JUDGEMENT

(1.) This is a claim submitted by the Official Liquidator under S.446 of the Companies Act for recovery of a total amount of Rs. 87,125 which is made up of the principal amount of Rs. 42,500/- together with interest @ 12% per annum from 18/03/1998, the date of default in the kuri till 31/12/2006, the date of termination of the kuri and future interest at the same rate. The respondent has filed a counter affidavit in which the contention prominently raised is that the claim is barred by limitation. It is pointed out that under S.458(A) of the Companies Act, the Liquidator gets exclusion of only the period from the date of commencement of winding up proceedings till the date of winding up order (in this case the period from 10.12.1999 till 19.10.2001) and a period of one year immediately following the date of winding up order. It is therefore contended that in this case the claimant will get time till 19.10.2002 and the normal period of three years period of limitation. The Official Liquidator will get time only till 19.10.2005. Since the claim is filed only on 5.11.2007 it is barred by limitation, it is contended.

(2.) To the above counter affidavit, the Official Liquidator has filed a detailed reply statement. It is pointed out that the kuri in question had 40 instalments having value of Rs. 2500/- per instalment. The respondent remitted only the first 17 instalments. He auctioned the kuri on 24.1.1997 and received the kuri amount on 24.2.1997. The date of remittance of the last instalment was 17.3.1998. This is why the claim has been filed for realisation of the value of the last 23 instalments together with interest at the rate of 12% per annum from 18.3.1998. The reply affidavit answers the contention that the claim is barred by limitation. It is submitted that the date of remittance of the last instalment was on 17.3.1998 and the date of commencement of winding up proceedings was on 10.12.1999 and the date of winding up order was on 19.10.2001. It is highlighted that as on the date of commencement of winding up proceedings the debt was alive. Due to the operation of S.458 A of the Companies Act, the Official Liquidator gets a period of four years (3 +1) + one year 10 months and 9 days from the date of winding up order. This means that the Liquidator has got time till 23.8.2007 for filing claims against the debtors of the company. The claim in this case having been filed during the month of March 2007 is not barred by limitation.

(3.) It was extensive arguments which were addressed before me by Sri. M.C. John, counsel for the respondent. Strong reliance was placed by the learned counsel on the judgment of the Supreme Court in Karnataka Steel & Wire Products and Others v. Kohinoor Rolling Shutters & Engg. Works and Others, 2003 (1) SCC 76 : 2003 KHC 715 : AIR 2003 SC 179 : 2002 (112) Comp Cas 606. Learned counsel would argue on the basis of the above judgment that the date of passage of winding up order is the date of accrual of cause of action and that maximum period which the Official Liquidator will get excluded from the reckoning for limitation in this case is a total period of four years from 19.10.2001. Sri. M. C. John also relied on the judgment of a Division Bench of this court in Kochupoly v. M/s. Holy Family Chits and Loans Pvt. Ltd., 2007 (4) KLT SN 36 : 2007 (4) KHC 306.