IMPORTANT POINT
The main legal point established in the judgment is that the period of limitation for claiming recovery under the Companies Act, 1956, commences from the date of the winding up order and is extended by an additional year, as provided in Section 458A.

JUDGMENT

CO.APPL. 1841/2017

1. The present application has been moved under Section 446 of the Companies Act, 1956 [The Act] on behalf of the Official Liquidator [OL] against a debtor of the company (in liquidation) i.e., M/s Grandeur Interiors (P) Ltd., seeking recovery of an amount of Rs.80,00,000/- as principle, with interest @18% per annum till the date of realization, along with the Administration Expenses incurred by the Official Liquidator.

BRIEF FACTS:

2. Shorn of unnecessary details, in the instant matter arising out of an application under section 433 & 434 of the Act, respondent namely, M/s Dimension Investment & Securities Ltd., was ordered to be wound up vide order of this court dated 03.06.2011, and thereby an Official Liquidator attached to this court has been appointed as its Liquidator.

3. Pursuant to the directions of this court, the Serious Fraud Investigation Office [SFIO] embarked on an investigation into the monetary transactions undertaken by the company (in liquidation), and submitted its report in this regard on 07.03.2012 with the office of the OL, which inter alia brought to the notice of the OL that the company (in liquidation) had paid a sum of Rs.80,00,000/-, as advance payment to the respondent/debtors - M/s Grandeur Interiors (P) Ltd., for the purchase of certain modular kitchens and wardrobes. It was reported that no such kitchens or wardrobes were supplied by the debtor M/s Grandeur Interiors (P) Ltd. to the company (in liquidation) and neither was the amount of Rs.80,00,000/- refunded. Further, it was the case of the applicant/OL that such amount was illegally transferred to the debtor company, by the Ex-Director of the company (in liquidation) - Mr. Uday Dutt, who did not have the authority to do so. It was brought out that there was no evidence to suggest that the company (in liquidation) required such kitchens/wardrobes and since the same were not supplied by the respondent/debtor, the respondent/debtor is not entitled to retain the amount paid to it as advance payment, and should therefore, refund the sum of Rs.80,00,000/- along with interest @ 18 per cent per annum till the date of realization.

SUBMISSIONS:

4. On behalf of the applicant/OL, it has been submitted that although a notice was served upon the respondent/debtor company on 12.07.2012, and thereafter, on 01.06.2017 to pay the amount of Rs.80,00,000/-, the debtor M/s Grandeur Interiors (P) Ltd. has failed to do the needful and has neglected to refund the said sum to the applicant company.

5. On the other hand, a reply has been filed on behalf of M/s Grandeur Interiors (P) Ltd. along with supporting affidavit of its Director dated 26.09.2018 wherein the application is opposed. It stated on behalf of the respondent/debtor that the order for the supply of modular kitchens/wardrobes was placed in the month of April 2018 and the payment in this regard was made on 10.04.2008; and thereafter, an order for the goods was placed by the respondent company with its counter-part in Italy, and it has been averred in the the reply filed by the respondent/debtor the Director of the company (in liquidation) failed to take delivery of the goods. Thus, claiming that there was no breach of contract by the debtor/respondent, it is submitted that the period of limitation for the claim of recovery would begin from the date the payment was made, and that such period expired on 10.04.2011, which was even prior to the order dated 03.06.2011, vide which the company (in liquidation) was ordered to be wound up, and thus, the claim is barred under Section 458A of the Act.

ANALYSIS AND DECISION:

6. Having heard the parties and on perusal of the record, in view of the chronological sequence of events leading to filing of this application, it would be expedient to refer to Section 458A of the Companies Act, 1956, which reads as under:

"458A. Exclusion of certain time in computing periods of limitation.-

Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908)