Section 5 of the Limitation Act, 1963 can be invoked by the Official Liquidator for condoning the delay in filing a Company Application under Section 543 of the Companies Act, 1956. The exclusion of the period from the date of commencement of winding-up to the date of the winding-up order under Section 458-A of the Companies Act, 1956, is applicable only to the period after the date of commencement of the running of the limitation.

S. PARVATHA RAO, J.

( 1 ) IN this application the Official Liquidator states that there was a delay of 33 days in filing Company Application No. 7 of 1989 and seeks the condonation of the said delay under Section 5 of the Limitation Act, 1963.

( 2 ) CA. NO. 7 of 1989 was filed on 16-1 -1989 by the Official Liquidator against the two respondents herein under sub-section (1) of Section 543 read with section 458-A of the Companies Act, 1956 (hereinafter referred to as the Act) alleging that they were guilty of misfeasance and breach of trust in relation to the companyinliquidationi. e. ,m/s. Kalpa Advertising and Marketing Company private Limited against which a winding-up order was passed by this Court in company Petition No. 9 of 1980 on 20-2-1981. The said Company Petition was filed on 25-4-1979. By virtue of Section 449 of the Act, the Official Liquidator became the Liquidator of the Company from the date of the winding-up order.

( 3 ) IN the affidavit filed in support of the present Company Application, the official Liquidator states that though under sub-section (2) of Section 543 an application under sub-section (1) of that Section has to be filed within five years from the date of the order for winding-up, by virtue of Section 458-A of the Act in computing the period of limitation 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 and the period immediately following the date of winding-up order shall be excluded and therefore the last date for filing C. A. No. 7 of 1989 was 15-12-1988. But the said Company Application was filed on 16-1-1989 as he was under the bonafide belief that the last date for filing the same was 16-1-1989 due to mis-calculation in computing the period of limitation and that therefore the said delay of 33 days was neither intentional nor deliberate. On that basis he seeks the condonation of the said delay. He further states that this Court was closed on 31-12-1988,1-1-1989, 13-1-1989, 14-1-1989 and 15-1-1989 as they were all declared as holidays and also from 2-1-1989 to 12-1-1989 for Sankranthi vacation.

( 4 ) IN the counter affidavits filed by the1st and 2nd respondents the calculation adopted by the Official Liquidator is disputed and it is contended that the delay was more than 33 days. According to them the limitation for filing C. A. No. 7 of 1989 would commence from the date of the winding-up order i. e. , 20-2-1981 and "any exclusion of time for limitation is the time after the order of liquidation and not earlier". They contend that "if at all any time mentioned in Sec. 489-A is liable to be excluded, it is only the period of one year after the order of liquidation and not the period anterior to the date of liquidation" and on that basis they say that the delay in filing the said C. A. N. o. 7 of 1989 is one year ten months and twenty two days, and not 33 days as stated by the Official liquidator. They also submit that the delay of even 33 days was not at all explained and that therefore there is no proper and acceptable explanation for condoning the same.

( 5 ) IN his reply the Official liquidator submits that the periods to be excluded under Section 458-A of the Act are 1 year 9 months and 25 days being the period from the date of commencement i. e. , 25-4-1979 when the Company Petition no. 9 of 1980 was filed till the date of the winding-up order i. e. , 20-2-1981, and in addition one year. Taking into consideration the 5 year period under subsection (2) of Section 543, the last date for filing Company Application No. 7 of 1989 was 15-12-1988. He once again reiterates that he was under the impression that the last date was 16-1-1989 because of miscalculation in computing the said period which was neither intentional nor deliberate.

( 6 ) IT is not seriously disputed by the respondents that Section 5 of the limitation Act, 1963 can be invoked by the Official Liquidator. Sub-section (2) of Section 29 of the Limitation

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