The material date for the purposes of computing the limitation is the date of the passing of the order on the winding-up petition, which is commonly known as winding up order.

( 1 ) THE first appeal from order has been filed under Section 483 of the Companies Act, 1956, against an order passed by the District Judge, Varanasi, dated Septembers, 1977, allowing claim of the respondent, Smt. Sultha Devi Gupta, for a sum of Rs. 1,17,948. 49. Aggrieved by the above order, Benares Cotton and Silk Mills Ltd. (in liquidation) has filed this appeal through the official liquidator.

( 2 ) SMT. Sulbha Devi Gupta, hereinafter referred to as " the claimant ", made a claim for a sum of rs. 1,17,948. 49 before the joint official liquidator. The latter investigated the claim and submitted a report dated August 21, 1960. In the above report, he held that the claim was barred by time and also pointed out that the liquidator had a claim against the directors including the claimant, under Section 235 of the Companies Act, and, as such, the claimant was not entitled to any payment until the claim of the official liquidator had been fully satisfied. The claimant being dissatisfied with the report of the liquidator filed an objection before the Dist. Judge. The official liquidator submitted a reply in the form of a written statement. Papers were filed by the claimant in support of the claim. The official liquidator submitted his supplementary report.

( 3 ) LEARNED District Judge framed two issues. On the first issue he held that the subject-matter of the claim was advanced as loan to the company. This necessitated enquiring into the other issue, viz. , whether the claim was barred by limitation. The District Judge held that the claim was not barred by limitation. The court below relied on a Division Bench decision of our court in the case of Jwala Prasad v. Jwala Bank Ltd. [1957] 27 Comp Cas 310 (All) and a Division Bench decision of the Madras High Court in the case of S. Abdul Muthalibu v. K. M. Mohammed abdul Khader [1962] 32 Comp Cas 1102 (Mad ). It was observed by the court below in its judgment that, according to the decision in the case of Jwala Prasad v. Jwala Bank Ltd. [1957] 27 Comp Cas 310 (All), the date of the winding up would be treated as the date on which the application for winding up was made. On this basis, the court held that the advance was made on july 9, 1951, and the winding-up petition filed on May 13, 1954, was thus within three years and, as such, the claim was maintainable.

( 4 ) THE District Judge, while allowing the claim of the respondent, also directed that the claim was allowed subject to the restriction " that she will be entitled to get this amount of the claim provided she is not found guilty of misconduct in the affairs of the company which misconduct led to the winding up of the company in the proceeding pending in that regard. " Apart from the appeal, a cross-objection has been filed on behalf of the respondent. The appeal was argued by mr. Jagdish Swarup, senior advocate, on behalf of the appellant, hereinafter referred to as " the bank. ". Mr. Sidheshwari Prasad, who had filed the cross-objections on behalf of the respondent, appeared during the course of the hearing and stated that he has no instructions in the appeal and the cross-objections. We have heard the counsel.

( 5 ) MR. Jagdish Swarup contended that the decision of the learned District Judge on issue No. 2 was patently erroneous. He urged that the court has misconstrued and misunderstood the decision in the case of Jwala Prasad [1957] 27 Comp Cas 310 (All ). The above decision clearly lays down that the claim may be made before the official liquidator and it should be within time at the date of the order of winding up. This was the correct view in law and this had also been stated by a Division Bench of this court in the case of J. A. Dixit v. Official Liquidator, AIR 1963 all 284. Mr. Jagdish Swarup also referred to a passage from Buckley on the Companies Acts and a passage from Palmers Company Law as also paragraph 1273 of the fourth edition of halsburys Laws of England. He also cited a decision in the case o