The starting point of limitation for claims under S.446 (2) (b) of the Companies Act, 1956 is the date on which the winding up order is passed or a provisional liquidator is appointed.

1. These appeals are against the respective decrees passed by the learned company judge on the claims instituted by the official liquidator in Company Petition No. 17/1973 in the matter of the Wandoor Jupiter Chits (P) Ltd., in liquidation. The claims were under S.446 (2) (b) of the Companies Act, 1956 and related to amounts due from the respective respondents to the company in liquidation on kuries bid and payments received by them. The only plea raised by the respondents-appellants in these appeals is one of limitation. The winding up of the company had commenced on 1-10-1973 and a winding up order was passed on 20-12-1973. The claim in all these cases was filed on 28-2-1978. There is no dispute that the claim was alive on the date of the winding up order. According to the appellants the exclusion of time for the purpose of limitation under S.458 A of the Companies Act cannot relate to any period prior to the winding up order.

2. The learned Company Judge following the decision in Official Liquidator v. Kadir and others (1977 KLT 39) has held that a claim under S.446 (2) (b) of the Companies Act is an application falling under Art.137 of the Limitation Act and that the starting point of limitation is the date on which the winding up order is passed and the official liquidator is appointed as the liquidator of the company. Adverting to S.458 A of the Companies Act the learned judge held:

"The claim here is an "application in the name and on behalf of a company which is being wound up", and therefore, in computing the period of limitation, two periods are to be excluded:

(i) the period from the date of commencement of winding up to the date on which winding up is ordered;

(ii) a further period of one year immediately following the date of the winding up order." The two periods thus excluded, it was held that the claims in these cases are within time under Art.137 of the Limitation Act.

3. S.458A was inserted and S.446 (2) substituted by the Companies (Amendment) Act, 1960. The Supreme Court in Sudarsan Chits (I) Ltd. v. G. Sukumaran Pillai (1984 Tax. L.R. 2181 AIR 1984 SC 1579) gives the historical evolution of S.446 in Para.7 of its judgment:

'Before we advert to the question of construction of S.446 (2) (b), it would be advantageous to notice the historical evolution of the provision as well as its present setting. S.171 of the Indian Companies Act, 1913 the predecessor of S.446 (1) did not contain any provision similar or identical to that of S.446 (2). S.171 only provided for stay of suits and proceedings pending at the commencement of winding up proceeding, and embargo against the commencement of any suit or other legal proceedings against the company except by the leave of the Court. This provision with a little modification is re-enacted in S.446 (1). There was no specific provision conferring jurisdiction on the Court winding up the company analogous to the one conferred by S.446 (2). Sub-S. (2) was introduced to enlarge the jurisdiction of the Court winding up the company so as to facilitate the disposal of winding up proceedings. The provision so enacted probably did not meet with the requirement with the result that the committee appointed for examining comprehensive amendment to the Companies Act in its report recommended that a suit by or against a Company in winding up should notwithstanding any provision in law for the time being be instituted in the Court in which the winding up proceedings are pending. (See para 207 of the Company Law Committee Report), To give effect to these recommendations, sub-S. (2) was suitably amended to bring it to its present form by Companies (Amendment) Act, 1960. The Committee noticed that on a winding up order being made and the Official Liquidator being appointed a Liquidator of the company, he has to take into his custody company property as required by S.456. S.457 confers power on him to institute or defend any suit, prosecution, or other legal proceeding, civil or cri