Companies Act — limitation for Official Liquidator's recovery claim · F2J-C-2923
M/s Appletree Chits India (P) Ltd. (in liquidation), represented by Official Liquidator v. Smt. Miny Zachariah
VALIDATED · ACTUAL COURT DOCUMENTSource transparency: The local PDF is an actual court document retained from the complete public source. The official court portal is recorded separately. Verify the official record and subsequent history before reliance.
Holding (ratio)
For a legally enforceable claim under section 446, limitation runs for three years from the winding-up order, with the additional one-year exclusion granted by section 458A.
Operative order (extract)
The limitation objection was rejected and the company claim was posted for further adjudication.
Scope limits
The holding is confined to the issues actually decided in the retained judgment; no view is attributed to the court on questions expressly left open or remanded.
Sources and completeness
- PDF status
- Complete searchable public court copy, retained unchanged
- PDF origin
- Downloaded unchanged from the complete public court-copy source
- PDF pages
- 9
- Extracted words
- 2,096
- PDF SHA-256
0afe859004ce1fd9b93e9a26bab52687397eae876587dfc12556e7bf81bbbe6a
Complete searchable judgment text
CC No.1384/2023 Page 1 / 9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
(Original Jurisdiction)
In the matter of the Companies Act, 1956
and
In the matter of M/S APPLETREE CHITS INDIA (P) LTD (IN LIQN.)
C.C NO. 1384/2023 in Co.Pet. No.2/2014
Before
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
th nd
Thursday, the 13 day of August 2026 / 22 Sravana, 1948
CLAIMANT:
M/S APPLETREE CHITS INDIA (P) LTD (IN LIQN.)
REPRESENTED BY THE OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA,
ERNAKULAM.
RESPONDENT:
SMT.MINY ZACHARIAH, EDDVAZHIKKAL (H), MALLOOSSERY
P.O., PULLARIKUNNU, KOTTAYAM, PIN - 686 041.
Company Claim under Section 446 read with Section 458A of the
Companies Act, 1956 filed by the applicant above named praying that this
Hon'ble Court be pleased to pass orders under Section 446 of the
Companies Act, 1956 for recovery of the amount of ₹62,548/- from the
Respondent, herein personally and from her other assets with future
interest at 12% per annum on the Principle amount of ₹28,750/- from
14.08.2013 till the date of the payment order and thereafter at 12% per
annum from the date of payment order till the date payment and costs.
This Claim coming on for orders on this day upon hearing
Smt.S.Jasmine, Standing Counsel for the Official Liquidator and M/s.
Johnson Gomez, Arun Johny, Sanjith Johnson, Abin Jacob Mathew, Deebu R. &
Shimon Kuruvilla Thomas, Advocates for the respondent, the Court passed
the following:-
CC No.1384/2023 Page 2 / 9
“C.R.”
HARISANKAR V. MENON, J.
---------------------------------------------------------------
Company Claim No.1384 of 2023 in C.P.No.2 of 2014
----------------------------------------------------------------
Dated this the 13th day of August, 2026
ORDER
This Company Claim is instituted by the Official Liquidator
seeking to realise an amount of Rs.62,548/- inclusive of interest
allegedly payable by the respondent to the company under
liquidation. The respondent has filed a counter affidavit dated
23.04.2026, denying the liability sought to be enforced as well as
contending that the demand is barred by limitation.
2. In view of the preliminary objection as regards limitation
raised by the respondent, I have heard Smt. Jasmine, the learned
Standing Counsel for the Official Liquidator, as well as Sri.Arun
Johny, the learned counsel for the respondent.
3. According to the learned counsel for the respondent, the
alleged default occurred on 14.08.2013 and therefore, with
reference to the provisions of Article 137 of the Limitation Act,
1963, steps ought to have been taken within a period of three
CC No.1384/2023 Page 3 / 9
Company Claim No.1384 of 2023 2
years. With reference to the commencement of the winding up
proceedings on 10.02.2014, he would state that the proceedings
were kept on hold till the winding up was ordered by the Company
Court on 08.11.2019 with reference to the statutory exclusion
under Section 458A of the Companies Act, 1956 (for short, the
“Act”). Therefore, according to him, the Company Claim ought to
have been presented within the remaining period of three years
after excluding the period between 10.02.2014 and 08.11.2019 and
also reckoning an additional one-year grace period provided under
Section 458A, which would come to an end by 12.05.2023.
Therefore, the learned counsel states that the Company Claim,
presented only on 05.09.2023, is barred by limitation. He also
sought to rely on the judgment of the Apex Court in Karnataka
Steel and Wire Products and Ors. V. Kohinoor Rolling
Shutters and Eng. Works and Ors. [(2003) 1 SCC 76], in this
regard.
4. Per contra, Smt.Jasmine, the learned Standing Counsel for
the Official Liquidator would state that right to sue as far as the
Official Liquidator has arisen only on the winding up being ordered
by the Company Court on 08.11.2019 and hence, the Official
CC No.1384/2023 Page 4 / 9
Company Claim No.1384 of 2023 3
Liquidator is entitled to file the application within a period of 4 years
(3 years under Article 137 of the Limitation Act plus one year grace
period under Section 458A of the Companies Act) which would only
end by 07.11.2023. Hence, according to her, the claim presented
on 05.09.2023 is within the limitation period. She sought to rely
on the Full Bench judgment of this Court in Ulahannan v.
Wandoor Jupiter Chits (P) Ltd. [1998 (2) KLT 636 (F.B.)].
5. I have considered the rival contentions as well as the
connected records.
6. There is no dispute that, with reference to Article 137 of
the Limitation Act, an application thereunder requires to be
presented within a period of three years with reference to the date
on which the “right to apply” arises. It is with reference to this,
that the learned counsel for the respondent states that the period
of limitation is required to be counted from the date of default,
14.08.2013, subject to exclusion prescribed under Section 458A of
the Act.
7. However, the question arises as to when the Official
Liquidator becomes entitled to present an application. It is not in
dispute that under Section 446 of the Act, it is only when the
CC No.1384/2023 Page 5 / 9
Company Claim No.1384 of 2023 4
winding-up order has been made, or the Official Liquidator has been
appointed as the provisional liquidator, that he can commence the
proceedings with the leave of the Tribunal/Court. Therefore, it is
only when the Tribunal/Court passes an order of winding up that
the Official Liquidator can institute the claim. In the case at hand,
the winding-up order was passed on 08.11.2019. Therefore, it is
with reference to that date that the Official Liquidator seeks to
present the Company Claim.
8. The judgment of the Apex Court in Kohinoor Rolling
Shutters (supra) considered a question as to whether a claim,
which was barred on the date the application for winding up was
filed, stands revived on account of an order of the Court in the
winding up proceedings. A Full Bench of the Karnataka High Court
held that Section 458A of the Act did not confer a fresh cause of
action and, therefore, if the time for the claim was already barred,
merely because an Official Liquidator is appointed, the claim does
not get revived. It was in these circumstances that the matter was
considered by the Apex Court. The Apex Court, considering the
afore situation, held that the provisions under Section 458A, cannot
be construed as even a time-barred debt, as on the date of the
CC No.1384/2023 Page 6 / 9
Company Claim No.1384 of 2023 5
winding up, would stand revived on account of winding up
application/an order made thereon. The Apex Court further held
that with respect to a legally enforceable claim which could have
been made by the Company in question on the date on which the
application for winding up is made, the Official Liquidator is entitled
to lodge the claim “within a period of four years from the date of
the winding up of the company” by resorting to the provisions of
Section 458A of the Act, including the three year period under
Article 137 of the Limitation Act.
9. A Division Bench of this Court in Antony v. Chandni
Chits Pvt. Ltd. [2016 (1) KLT 371], considered an identical
situation like the one in the case at hand, also with reference to the
principles laid down by the Apex Court in Karnataka Steel and
Wire Products and Ors. (supra). In that case, the winding-up
proceedings commenced on 16.10.1989, and the order for winding
up was passed on 04.04.1990. Later, the Official Liquidator
instituted claims before the Company Court under Section 446(2)
of the Companies Act. The Company Court sought to reject the
contention regarding limitation raised by the respondents therein.
Against the afore, an appeal was presented, which came up for
CC No.1384/2023 Page 7 / 9
Company Claim No.1384 of 2023 6
consideration before the Division Bench. The Division Bench of this
Court, with specific reference to the provisions of Section 446, held
that the provisions under sub-section (1) thereto bars the
commencement of any proceedings after the winding-up order is
made, without the leave of the Company Court. With reference to
the provisions of Article 137 of the Limitation Act, the Division
Bench found as under:
“12. A claim filed by the Official Liquidator under sub-section
(2) of S.446 of the Act is governed by Article 137 of the
Limitation Act, 1963, and the right to file a claim under the
said sub-section, in respect of a claim enforceable at law on
the date of the winding up order, arises on the date on which
the winding up order is passed. Article 137 of the Limitation
Act reads thus;
Article Description of Period of Time from which
Application limitation the period begins
to run
137 Any other application Three years When the right
for which no period of to apply accrues
limitation is provided
elsewhere in this
division.
The period of limitation of three years would, therefore, be
from the date of the winding up order.”
Again, with reference to the provisions under Section 458A, the
Division Bench found as under:
“13. Section 458A of the Act, inserted by the Companies
(Amendment) Act, 1960 deals with exclusion of certain time
CC No.1384/2023 Page 8 / 9
Company Claim No.1384 of 2023 7
in computing the periods of limitation. As per Section 458A of
the Act, notwithstanding anything in the Indian Limitation
Act, 1908 (9 of 1908) or in any other law for the time being
in force, in computing the period of limitation prescribed for
any suit or application in the name and on behalf of a
company which is being wound up by the Court, the period
from the date of commencement of the winding up of the
company to the date on which the winding up order is made
(both inclusive) and a period of one year immediately
following the date of the winding up order shall be excluded.
14. The effect of S.458A of the Act is that, in respect of a
legally enforceable claim, which could have been made by the
company on the date on which the application for winding up
is made, the period of limitation will not run against the
company from the date of commencement of the winding up
proceedings, i.e., from the date on which the application for
winding up is made, till the date on which the winding up
order is made (both inclusive). Such a claim could be filed by
the Official Liquidator by taking the benefit of one year period
immediately following the date of the winding up order, as
provided under S.458A of the Act and the three years period
provided under Article 137 of the Limitation Act. Therefore, in
respect of a legally enforceable claim, which could have been
made by the company on the date on which the application
for winding up is made, the Official Liquidator could file claim
within a period of four years from the date on which the
winding up order is made.”
(Underlining supplied)
CC No.1384/2023 Page 9 / 9
Company Claim No.1384 of 2023 8
After finding so, the Division Bench noticed that since the order of
winding up was passed on 04.04.1990, the claim could be filed on
or before 04.04.1994. However, since in that case the claims were
filed beyond the said date, the Division Bench allowed the appeals,
setting aside the judgment and decree of the Company Court.
10. Applying the afore principles to the facts of the present
case, admittedly, the winding up order was passed on 08.11.2019
and therefore, the Official Liquidator is entitled to the three-year
period prescribed under Article 137 of the Limitation Act, and the
additional one year period under Section 458A of the Act for lodging
the Company Claim. Since the claim is presented within the afore
period, I am of the opinion that there is no limitation as contended.
Hence, the preliminary objection raised by the respondent as above
is rejected.
Post the Company Claim for further consideration on
08.09.2026.
Sd/-
HARISANKAR V. MENON, JUDGE
ln
13-08-2026 /True Copy/ Assistant Registrar
Disclaimer: Educational and research material only; not legal, tax, investment or professional advice. Verify the controlling court record, statutory version, jurisdiction and subsequent history.