LexAJAY G. PODAR versus OFFICIAL LIQUIDATOR OF J.S. & W.M. AND ORS.
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. [2008] 11 S.C.R. 145 " ~ A AJAY G. PODAR v. OFFICIAL LIQUIDATOR OF J.S. & W.M. AND ORS. (Civil Appeal No.4597 of 2008) JULY 22, 2008 B ~ [S.H. KAPADIA AND 8. SUDERSHAN REDDY, JJ.] Companies Act, 1956 - ss. 458A and 543 - Misfeasance proceedings filed by Official Liquidator - Question of limita- tion and its computation qua such proceedings - Held:s.458A · c dealing with computation of the period of limitation has to be read with s. 543(2). On 2.12.83, order of winding up of company was passed by the High Court. The Official Liquidator (O.L) was appointed on that day. Misfeasance proceedings were D · filed by the O.L. under s.543(1) of the Companies Act on J 1.12.89, though the limitation period of five years referred to in s.543(2) of the said Act had expired on 1.12.1988. Contention has been raised by the appellant in the present appeal that the said misfeasance proceedings E filed on 1.12.89 stood barred by limitation as prescribed under s.543(2) and that it was not open to the 0.L. to rely upon and take resort to general limitation provision con- templated by s.458A of the said Act. Alternatively, the Appellant contended that even if one F is to read harmoniously 5. 458A with s;543(2), the former is enacted to over.ride the provisions of the Limitation Act, 1963 and not the provision of the Companies Act, 1956. In this connection, the Appellant submitted that since s.543(2) specifically provides for limitation of five years, it G is not open to read the said section with s.458A so as to extend the period of limitation from five years to six years· by adding one more year to the specific period of limita- tion of five years prescribed by s.543(2). 145 H 146 SUPREME COURT REPORTS [2008] 11 S.C.R. ~ A Appellant next contended that s.458A, in any event, is not applicable as misfeasance proceedings instituted by the O.L. cannot be said to be proceeding instituted in the name and on behalf of the company. ~ i- B Dismissing the appeal, the Court t HELD:~.1. On reading the provisions of s.458A and ~ .. s.543(2) of the Companies Act, it is found that there is a clear dichotomy between the concept of the "period of limitation" on one hand and the concept of "computation c of that period". 5.543(2) limits the time after which mis- feasance or breach of trust proceedings, retainer proceed- ings and misapplication proceedings becomes time barred. This dichotomy finds place not only in the above provisions of the Companies Act but also under the pro- D visions of Limitation Act. Under s.2(f) of the Limitation Act, the period of limitation is required to be computed in ac- cordance with the provisions of that Act. Further, the Limi- tation Act not only prescribes the period of limitation for different types of suits and applications but it also further E provides for computation. If any period of limitation is to be excluded from the prescribed period of limitation the party has to satisfy any of the appropriate provisions in ss. 4 to 24 of the Limitation Act. The law of limitation is a procedurai law. It is addressed to the commencement of F a proceeding. [Para 9] [154-G & H; 155-A,B & C] f 1.2. Although s.543(1) & (2) of the Companies Act pro- /.- I vides for locus and forum, there is no provision for com- putation of the period of limitation. However, s.543(2) does not rule out the applicability of ss. 12 to 24 in Part Ill of the G Limitation Act. Part II of the Limitation Act deals with limi- tation of suits, appeals and applications whereas Part Ill deals with the computation of period of limitation. Simi- larly, s.543(2) deals with limitation for applications/claims >- mentioned in s.543(1) which includes misfeasance pro- H ceedings whereas the computation of the period of five AJAY G. PODAR v. OFFICIAL LIQUIDATOR OF 147 J.S. & W.M. & ORS. years is contemplated by s.458A of the Companies Act. A [Para 11] [155-F,G & H; 156-A] 1.3. There is no merit in the contention of the appel- lant that by virtue of s.458A, the period of limitation is ex- tended by one year. Part Ill of the Limitation Act excludes B J certain circumstances mentioned in ss.12 to 24 for com- putation of the period of limitation. Similarly, s.458A pro- vides for an additional circumstance which is not there in / the Limitation Act which is required to be taken into ac- count as an item of exclusion in the matter of computa- c tion of the period of limitation of five y
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