MALABAR PETROLEUM CO Vs. CONTINENTAL OIL CO LTD

JUDGEMENT

(1.) THIS is an application, filed by the Official Liquidator for directing the respondent to pay a sum of Rs. 1013-70 being the amount equivalent to 1076 Frenchfrancs. This direction is sought on the basis of the order of this Court dated 23rd March, 1962 in Company Appln. No. 394 of 1961. In that order, this Court found that the explanation of the respondent was not acceptable in respect of the specified items of debits by the French company against the company in liquidation. In view of this order, there can be no question about the liability of the respondent. But the application is resisted on the ground that it is barred by time. Though it is filed under Section 460 (4) of the Companies Act, 1956, it is contended for the respondent that if the claim is regarded as one arising out of misfeasance, Section 543 (2) of the Companies Act prescribes a period of five years, and that if the claim is regarded as one falling within the purview of Section 469 of that Act, even so, since any suit by the company would have been barred, the same principle should govern this application too. It seems to me that having regard to the circumstances in which the respondent's liability arises, Section 543 will have no application. But Section 469 (1) will in my view be applicable to the application. That section states that the Court may at any time after making a winding-up order, make an order on any contributory for the time being on the list of contributories to pay in the manner directed by the court any money due to the company. It is not in controversy that the respondent is a contributory. "any time" in the section does not appear to be used with reference to limitation. The effect of these words is not that the Court can make an order under the section without reference to the limitation prescribed by the law. That was the view taken by a Division Bench of the Lahore High Court in Sri narain v. Union Bank of India, |lr 4 Lan 109 : (AIR 1924 Lah 53 ). That, of course, is a decision under Section 186 of the Companies Act, 1913 which is in effect the same as Section 469 of the present Act. The learned Judges were of the opinion that Section 186 of the Indian Companies Act did not create new liabilities or confer new rights, but that it merely provided a summary procedure for enforcing existing legal liabilities. On that view, they held that a debt which was barred by time could not be enforced by the liquidation Court by a summary order tinder that section. I find myself in respectful agreement with this view of section 186 of the old Act, which I think should govern Section 469 of the Indian companies Act 1956.

(2.) IT is true that the application under Section 469 is not a suit or an application within the purview of any of the articles in the Indian Limitation Act of 1908. Referring to this aspect, the Privy Council in Hansraj Gupta v. Dehra Dun Mussorie electric Tramway Co. Ltd. , (in liquidation), ILR 54 All 1067 : 64 Mad LJ 403 : (AIR 1933 PC 63), observed that an application under Section 186 of the old Act could not be regarded as a "suit instituted" or an "application made" under Section 3 of the Indian Limitation Act, 1908. Even so, the Privy Council went on to observe :

(3.) SECTION 469 of the present Act also uses the same phraseology, namely "any money due". It follows, therefore, that the principle of ILR 54 All 1067 : 64 Mad LJ 403 : (AIR 1933 PC 63), is equally applicable to an interpretation of Section 469. This means that before an order for payment can be made under Section 469, the applicant must show that the amount is due, and if under the law of limitation governing actions for recovery of money, the claim would be barred, it cannot be said that the amount is a sum due within the meaning of Section 469. The test will be whether if the company were to institute a suit as on the date of an application under Section 469, it would or would not be barred by time under the Indian limitation Act, 1908. That appears to be the approach made by a Division Bench to the question in Narasimha Iyengar v. Official Assignee, Madras, 60 Mad LJ 280 : (AIR 1931 Mad 58 ). That no doubt was a case of an application taken out by an official liquidator to recover compensation from some of the directors of the company in liquidation, in respect of their acts of misfeasance. The learned Judges of this Court held that the application was time barred, whether Article 36 or Article 120 of the Limitation Act applied to the case. But what is important to note is that although the application was made under Section 235 of the Companies Act of 1913, the learned Judges considered that the question of limitation for the claim to be. allowed should be viewed from the stand-point of Article 36 or Article 120.