TaxTMI 
TaxTMI 
1972 (7) TMI 6
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....ion for the exercise of the power vested in the court thereunder has expired. The Mambad Timber and Estates (Private) Ltd. was a private company incorporated in 1955. A scheme for amalgamation of the company with the second respondent, the Ruby Rubber Works (Bangalore) Ltd., which is a public company, by transferring all its assets and liabilities to the latter company in consideration of shares in the said company being allotted to the members of the dissolved company, was sanctioned by this court under section 394 of the Companies Act in Company Petition No. 5 of 1969. The scheme also provides for the dissolution of the company without being wound up. The accounts of the dissolved company were got audited by the official liquidator of ....
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.... void ; and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved. " On a plain reading of the section it is clear that the period of limitation prescribed therein is for making the order that the court is empowered to make under that section. But it has been vehemently contended by counsel for the petitioner that such a construction would be very harsh and would lead to very unreasonable consequences, in that any delay caused by the pendency of the application in the court would deprive the applicant of the remedy that he is entitled to get under the section, though he has come to the court within the period of two years mentioned therein. It is pointed out that the delay on the part of t....
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.... the company ; and it was contended that no order can be passed after the expiry of two years from the date of dissolution of the company. The contention was rejected by the learned judge, and in doing so, he stated : " That undoubtedly is a plausible way of reading the section, but I think it leads to an incorrect result. It appears to me, that, if one reads the section against the background on which the court necessarily acts, and has regard to the fact that neither litigant can control the date at which the court makes its order, the period of 2 years referred to is to be decided by taking the period between the date of the dissolution of the company and the date when the application under section 294 is made. " With great respect....
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....he namely the company had not been struck off. " The period of limitation fixed in the above provision is clearly for the filing of the application. Section 560(6) deals with the power of the court to restore to register the name of a company which has been struck off the register, while section 559(1), as already noticed, deals with the power of the court to declare dissolution of a company void. In section 559(1), the period of limitation is fixed for passing the order on the application, while in section 560(6), the limitation is provided for making the application. It is difficult to hold that Parliament did not intend this differentiation, when it employed different languages in the said two provisions. I, therefore, come to the con....
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....on can be considered to have been made with notice to the said two parties only on March 24, 1972, and at any rate not before February 25, 1972. The order of dissolution was made on February 13, 1970. In this view of the matter, the application has been made more than two years after the order of dissolution of the company, and it is, therefore, barred. Before leaving this case, it is also relevant to point out one more aspect. The dissolution of the company was ordered after all its assets and liabilities were taken over by the second respondent. There is no case that the company has any undistributed assets. So there is no use to set aside the dissolution. To assess a company which is not possessed of any assets would be a labour of wa....