Brishketu Saran Sinha, J.

This appeal under Clause 10 of the Letters Patent arises out of an order dated 20th January, 1978, passed in Company petition No. 9 of 1974. By the impugned order the learned Company Judge bas held that the petition filed under section 398 of the Companies Act, 1956 (hereinafter referred to as' the Act) relating to the Krishak Cold Storage Limited (for brevity called the Cold Storage' hereafter) is not barred under section 402 (f) of the Act, This was an issue between the parties In the afore said application which has been decided first,

2. The respondents petitioners filed an application under section 398 of the Act, which has been numbered as Company Petition No.9 of 1974, in which the relief sought is that the management of the company i.e. the Cold Storage is conducting itself in a manner prejudicial to the interest of the Cold Storage and the transfer dated 24th May 1974 made in favour or Roshan lal Agarwal, the appellant, be set aside and tile appellant be restrained from enforcing his rights to the assets of the Cold Storage, illegally transferred to him. The further prayer was to constitute a new Board to manage the Cold Storage and provide for the conduct of its affairs.

3. The sale deed in question was executed on 24th May, 1974 by respondents no.10 and 11 In favour of the appellant. Admittedly the aforesaid application was filed on 24th August, 1974. In order to determine whether the application was time barred or not, the relevant provision is section 402 (f) of the Act which reads as follows :-

"402. Without prejudice to the generality of the powers of the court under section 397 or 398, any order under either section may provide for.

(f) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the Company within three months before the date of the application under section 397 or 398, which would, If made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference (the worde are underlined by me)

By going through the above provision it is obvious that it h is to be found out whether in this case the application was filed in time i.e. within three months before the date of the application under section 397 or 398" According to the appellant, the application was late by a day while, according to the petitioners before the learned Company Judge, the application had been filed within the prescribed period. The simple question, therefore, is whether the sale deed executed on 24th may, 1974, had been executed within three months before the 24th of August, 1974 ? It is not disputed by the parties that in order to answer this question the only matter Which falls for consideration is whether in computing the period within three months, 24th May, 1974 has to be included or excluded.

4. Mr. S.C. Ghosh. appearing for the appellant, has urged that in applying the aforesaid provisions, two conditions have to be fulfilled, namely, (i) that the application should be within three months and (ii) that the aforesaid period is to be before the date of the application. He contends that as the words before the date of the application' have been used, it follows that the date of execution of the sale deed has got to be included in detrmining the period 'within three months'.

5. In Maxwell's Interpretation of Statutes (Twelfth Edition), at page 310, it has been observed as follows :-

"where' something has to be done so many days or weeks 'before' a particular date, another rule is applied, namely, that both the day on which the thing is done and the day by which it has to be done are excluded from the computation, so that there is a 'clear' period of so many days or weeks I intervening. So a provision that a notice should be given three days before a trial means that there must be three clear days between the giving of the notice and the trial. "

Obviously, therefore, the day on which the said deed