Limitation exclusion for winding up proceedings permits amendment where excluded periods render the application timely.

Whether an application to amend a company petition is time barred turns on application of the winding up exclusion in limitation computation: the period from commencement of winding up to the winding up order and one year after that are excluded when computing the five year limitation for applications under the Companies Act, so the contested amendment filing was held timely after excluding that combined period. On the amendment itself, permitting insertion of substantive reliefs is appropriate once limitation is satisfied; objections on merits can be raised subsequently and respondents may file further counter pleadings, with the amendment allowed and no costs order.

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Issues: (i) Whether the application to amend Company Application No. 40 of 1978 by inserting additional reliefs under section 543(1) of the Companies Act is barred by limitation, and (ii) whether the proposed amendment should be permitted at this stage.

Issue (i): Whether the application is barred by limitation because it was filed more than five years after the winding-up order.

Analysis: Section 458A provides that, when computing limitation for suits or applications in the name and on behalf of a company being wound up by the court, the period from commencement of the winding-up to the date of the winding-up order (both inclusive) and a period of one year immediately following the winding-up order are to be excluded. Section 543(2) prescribes a five-year period for applications under section 543(1). Applying section 458A requires excluding (a) the period from filing of the winding-up petition (commencement of winding-up) to the date of the winding-up order, and (b) one year following the winding-up order, from the five-year limitation period. In the present case the winding-up proceedings commenced on April 6, 1972, the winding-up order was made on October 27, 1972, and the combined excluded period amounts to one year, six months and twenty-two days; computing the five-year period accordingly makes the February 23, 1979 filing date timely.

Conclusion: The application is not barred by limitation; section 458A applies to exclude both the period from commencement of winding-up to the winding-up order and the one year following the order when computing the limitation under section 543(2).

Issue (ii): Whether the amendment to Company Application No. 40 of 1978 should be allowed at this stage.

Analysis: The proposed amendment seeks substantive relief under section 543(1). Objections on merits can be raised after amendment; no procedural bar prevents allowing the amendment once limitation is satisfied. The application under Order VI, Rule 17, Code of Civil Procedure, 1908, is therefore properly entertained to permit insertion of the stated paragraphs into the summons to enable the respondents to meet the additional allegations and to file further counter if desired.

Conclusion: The amendment is allowed as prayed for; respondents may file an additional counter in the main company application; no order as to costs.

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