The bar of limitation is not applicable where an applicant is only seeking leave to continue any suit which was instituted prior to the order of winding up was passed by the Court.

( 1 ) THIS is an application to recall the order dated 13. 1. 1997 whereby this Court allowed the application filed by UCO Bank under Section 446 (1) of the Companies Act (in short the Act)against M/s Aurangabad Engineering Company Limited (in liquidation) granting permission to the applicant Bank to proceed with Suit No. 272 of 1987, UCO Bank v. Aurangabad Engineering company Limited and others, pending in the Court of Vlth Additional District Judge, bulandshahr.

( 2 ) THE facts in brief are that UCO Bank had filed suit No. 272 of 1987 in the court of District judge, Bulandshahr for recovery of Rs. 25,62,509. 01 together with pendente lite and future interest against M/s. Aurangabad Engineering Co. Ltd. and against guarantors of the debt of the company, namely, (1) Raunak Ali. (2) Mohammad Waris (now represented by his heirs), (3)Asghar Ali and (4) Abdul Hasib. The suit was transferred to the Court of VIth Additional district Judge, Bulandshahr. While the suit was pending, Maharashtra Steel Limited Company filed Petition No. 6 of 1988 for winding up under Section 439 of the Act. This Court passed an order on 5. 4. 1989 for winding up of the said company. The UCO Bank filed application under section 446 of the Act against M/s. Aurangabad Engineering Company Limited (in liquidation)praying for grant, of leave to pursue the proceedings of suit No. 272 of 1987 filed by it against the company (in liquidation) which was pending before the court of VIth Additional District judge, Bulandshahr. The Official Liquidator opposed the application. The Court allowed the application of UCO Bank on 13. 1. 1997 and permission was granted to the Bank to proceed with the Suit No. 272 of 1987.

( 3 ) THE contention of the Official Liquidator that the assets of the company in liquidation having already been sold in pursuance of the order passed by the court and the Bank had also filed its claim before the Official Liquidator, the application was not maintainable, was repelled. It was held that as the suit had also been filed against the guarantors and relief had also been claimed against them, the suit was maintainable at least so far as guarantors were concerned.

( 4 ) HAZI Raunak Ali Khan, one of the guarantors and defendant in Suit No. 272 of 1987, has filed this application to recall the order dated 13. 1. 1997.

( 5 ) I have heard Sri R. P. Agarwal, learned counsel for the applicant, and Sri Vinod Misra, learned counsel for the Bank.

( 6 ) LEARNED counsel for the applicant submitted that the defendants in the suit were entitled to be heard under Rule 117 of the Companies (Court) Rules, 1959 (in short the Rules) before an application under Section 446 (1) of the Act was allowed by the Court. Admittedly the applicant was guarantor of the respondent company in respect of the loan advanced to it and was one of the defendants also. He was entitled to be heard before the application under Section 446 (1) of the Act was allowed as Rule 117 of the Rules provides that an application under Section 446 (1)for leave of the Court to commence or continue any suit or proceeding against the company shall be made upon notice to the Official Liquidator and the parties to the suit or proceeding sought to be commenced or continued. After winding up order is passed, the Court is to hear not only the official Liquidator but also the parties to the suit or the proceeding sought to be commenced or continued. The applicant was defendant in the suit and was entitled to be heard before the Court passed an order Section 446 (1) of the Act.

( 7 ) AS the order has already been passed permitting UCO Bank to continue with the proceeding of the suit, I give an opportunity to the present applicant in respect of the application filed by the bank under Section 446 (1) of the Act, Sri R. P. Agarwal, learned counsel for the applicant, raised two objections. Firstly, that as the suit filed by the Bank had already been dismissed on the date it filed application unde