The limitation period under Section 458A of the Companies Act starts from the winding up order date, not from the filing of the statement of affairs.

(PER: HON'BLE MR. JUSTICE D K SINGH)

The present OSA has been filed impugning the order dated

12.06.2024 passed by learned Company Judge in Company Application No.280/2023 in Company Petition No.57/2012. The United Breweries (Holdings) Ltd., (UBHL) came to be wound up by order dated 07.02.2017. The petition for winding up was filed in the year 2012.

2. Against the said winding up order, Company Appeal OSA 5/2017 was filed before the Division Bench of this court. An interim order dated 25.04.2017 was passed directing the Official Liquidator not to precipitate the matter during the pendency of the appeal. The Official Liquidator was however authorized to collect the rents, etc. from the tenants of UBHL.

3. Finally the judgment in appeal came to be passed on

06.03.2020 and the order passed by learned Company Judge dated 07.02.2017 was upheld.

4. The Official Liquidator, when he came to know that a sum of Rs.20,01,43,101/- was due to the appellant company as on 07.02.2017 which was advanced by the Ex-Director of UBHL, the company under liquidation is the appellant company, during the pendency of winding up proceedings, he filed an application u/s.446(2b) of the Companies Act , 1956 on 13.09.2023 before the learned Company Judge for the following reliefs:

"a) To direct the respondent No.1 to 3 pay a sum of Rs.20,01,43,101/- and Rs.23,64,86,895/- as interest @ 18% from 07.02.2017 to 31.08.2023, total amounting to Rs.43,66,9,996/- and future interest at

18% from 01.09.2023 till the date of payment.

b) To pass such other order or orders as may be deemed fit and proper in the Circumstances of the case".

5. An objection was raised by the appellant company against the Company Application No.280/2023 filed by the Official Liquidator being time barred under the provisions of Sec.458A of Companies Act , 1956. The learned Company Judge framed the following points/issues for consideration:

"i) When would the limitation period commence in terms of Section 458-A of the Companies Act , 1956, for the Official Liquidator to take action against the company's creditors?

ii) Would the limitation period stand extended if an appeal is filed challenging the winding up order and the winding up order is stayed? If so, from when would the limitation period have to be calculated?

iii) Is the Official Liquidator expected to conduct an investigation, ascertain the creditors, and initiate action against such creditors on his own?

iv) In the present matter, can the application filed by the Official Liquidator under Section 446(2) of the Act be said to be barred by law of limitation and dismissed in limine at this stage?

v) What order?

6. In answer to question no.1, the learned Company Judge has held that the limitation of four years as provided u/s.458A for recovery of dues of the company under liquidation would start from the date of filing of the statement of affairs of the company by its Ex-Director. According to the learned Company Judge, the Official Liquidator would come to know about the dues recoverable only from the statement of affairs of the company and not from the winding up order. Therefore, the limitation would begin for recovery of dues u/s.458A of the Companies Act from the date of filing of the statement of affairs by its Ex-Director.

7. Sri A.Murali, learned Sr. Counsel assisted by Sri Arjun.P.K. appearing for the appellant submits that in fact the learned Company Judge has virtually amended the provisions of Sec.458A of the Companies Act by the interpretative process in saying that the limitation would begin to recover the dues of the company under liquidation from the date of filing of the