P.N. Shinghal, J.
1. A petition was filed on November 25, 1958 for the winding up of the Bharatpur Oil Mills (Private) Limited, and the winding up order was made on October 4, 1960. M/s. Babulal Rukmanand, a partnership firm, made an application to the Official Liquidator on January 27, 1961, for proving its debt against the Company for a sum of Rs. 10,000 and Rs. 2/3/6 as the costs of notice, and interest at 9 per cent per annum. It was claimed that the loan had been advanced on March 21, 1949, and although it had not been repaid, it had been 'confirmed' by the Company Rukmanand, it may be stated, was one of the partners of M/s. Babulal Rukmanand and his son Radheyshyam Khandelwal was one of the directors of the aforesaid Company. The creditor offered to give evidence, if necessary, in proof of the debt. The Official Liquidator asked the creditor to satisfy him that the claim was within limitation, and Radheyshyam Khandelwal thereupon produced a letter of the Company dated March 8, 1958 acknowledging the amount of Rs. 11,800/- as due from the Company on December 25, 1957 He asked for further time to produce more evidence and recorded his statement on July 7, 1966 On a consideration of the evidence before him, the Official Liquidator reached the conclusion that the letter dated March 8, 1958 was not genuine and that the balance sheet dated December 31, 1956, on which also reliance was placed by the creditor in proof of his debt, could not be considered as an acknowledgment and did not save the limitation. He also held that the claim was already time barred on the date of the balance sheet, that is before December 31, 1956. In this view of the matter, he held that the claim had not been proved, and dismissed it by his order dated July 22, 1966. It is against this decision that the present appeal has been filed.
2. Mr. L. R. Bhansali learned counsel for the appellant found it difficult, for obvious reasons, to assail the order of the Official Liquidator on the scanty evidence on which it was based and he has therefore argued with much vehemence and insistence that it was the duty of the Official Liquidator to consider the entire record of the Company, including all its balance sheets, before deciding the appellant's proof, and that he should not have based his finding merely on the evidence which the creditor was able to place before him. The learned counsel has therefore argued that this Court should consider all the other evidence and decide the question whether the debt was within limitation, afresh. This submission requires a consideration of the nature of the duties of an Official Liquidator and the proceedings before him in such matters. Mr. Bhansali has argued that the limitations of an appeal from a judgment of a civil court, cannot apply to the present case and that the provisions of Rule 27 of Order 41, C. P. C. should not be invoked for the purpose of deciding the question of additional evidence. The learned counsel has, all the same, presented a formal application under that rule with a prayer that the other evidence bearing on the proof may also be taken into consideration.
3. An Official Liquidator is an officer of the Court and as has been observed in Halsburv's Laws of England, third edition, volume 6, paragraph 1142, he must 'maintain an even and impartial hand' between all the individuals whose interests are involved in the winding up proceedings. It is his duty to make himself thoroughly acquainted with the affairs of the company, and technical hurdles as to procedure are not viewed with favour and have to be overcome The liquidator has to act fairly and honourably in considering the claims of persons against the company. This is why supervisory jurisdiction has been vested in the Court under Section 460 of the Indian Companies Act, 1956 and a specific provision has been made to the following effect in Sub-section (6) of that section --
' (6) Any person aggrieved by any act or decision of the liquidator may apply to the Court; and the Court may confirm, reverse or modify the act or decision complained of and make such further order as it thinks just in the circumstances.'
To give effect to this provision, so far as it relates to the rejection of a creditor's proof, it has been stated in Rule 164 of the Companies (Court) Rules, 1959, that if a creditor is dissatisfied with the decision of the Liquidator in respect of his proof, he may, not later than 21 days from the date of service of the notice upon him of the decision of the Liquidator, appeal to the court against the decision. Then the rule provides the mode of filing the appeal, and goes on to say that, in deciding it, the court shall have 'all the powers of an appellate court under the Code'. When therefore the provision of Sub-section (6) of Section 460 of the Act is read with Rule 164, it becomes quite clear that there is justification for the argument that the appeal is really by way of an application for the scrutiny, by the court, of the decision complained against. There is no requirement that this right or opportunity is subject to any rigid rules of procedure for, while Rule 164 provides that, on the presentation of an appeal, the Court shall have all the powers of an appellate court under the Code of Civil Procedure, it does not go on to provide further that the rigid rules of procedure contained in the Code in respect of an appeal shall be applicable to such appeals also. I am therefore persuaded to take the view that while considering an appeal against the rejection of a creditor's proof, the Court is at liberty to consider any additional evidence that may be led by the parties.
4. Reference may in this connection be made to the decision In re Kentwood Constructions Ltd. (1960) 1 WLR 646. In that case, the Liquidator rejected the proof and an appeal was filed before the Court. The registrar dismissed the appeal The creditors then moved the Court to discharge the registrar's order. It was found that the registrar had given his decision on the basis of the evidence available to the Liquidator at the date when he rejected the proof. The appeal by the creditors lay under Rule 108 of the Companies (Wind-ins-Up) Rules, 1949 of England, which corresponds to Rule 164 of our Companies (Court) Rules, 1959. But the English rule does not specifically provide that the remedy of a dissatisfied creditor would lie by an 'appeal' to the court, as in India. The heading of Rule 108 has however, been described as 'appeal by creditor' There is thus no substantial difference between the nature of the proceedings before a registrar against a decision of a liquidator rejecting a proof in England, and an appeal in this country. The decision (1960) 1 WLR 646 was therefore made under very similar provisions of the law in that case Bucklev J. while considering the function of the appellate authority (Registrar) on an appeal from the rejection of a proof observed as follows.--
'When application is made to the court to reverse a decision of a liquidator in rejecting a proof, evidence is filed which is very commonly much fuller than the evidence available to the liquidator at the time when he decides to reject the proof; and the court is bound to decide the rights of the claimant in the light of the evidence which is before the court, and not merely to express a view as to whether the liquidator was right or wrong in rejecting the proof when he rejected it. It is, perhaps, significant that the Companies (Winding-Up) Rules, 1949, provide by Rule 108 that if a creditor or contributory is dissatisfied with the decision of the liquidator in respect of a proof, the court may, on the application of the creditor or contributory, reverse or vary the decision. It is not merely the function of the court to say that a decision is right or wrong; it may vary it in any way it thinks necessary in the light of the evidence before the court. The court must approach the question de novo and determine to what extent the claimant ought to be allowed to rank as a proving creditor.'
Buckley J. therefore reviewed the evidence before the court and admitted the proof. That decision has been approved in In re Trepea Mines Ltd., (1960) 1 WLR 1273 and appears to take the correct view of the matter. I am quite satisfied that it is open to this Court, in the present appeal, to consider all the evidence of the creditor and to decide the proof afresh.
5. It may however be pointed out that the appellant does not really seek to tender additional evidence of a nature different from that relied on by him before the Official Liquidator, or of which the genuineness may be said to be in dispute for he has merely relied on the balance sheets and the account books of the Company In his letter dated November 12, 1965, the appellant had already informed the Official Liquidator that his debt had been credited in the Company's books of account and had been confirmed by the Company from time to time. A request was also made to the Official Liquidator to verify the claim from the Company's account books, and in his statement dated July 7, 1966 Radheyshayam Khandelwal had stated that the liability had been acknowledged by the Company in its balance sheet as on December 31, 1956. It is true that the Liquidator was not called upon to examine the earlier balance sheets, but when the question of limitation had arisen, and the creditor had pleaded that the claim had been confirmed by thp Company from time to time, the Liquidator could well have looked into the other balance sheets before arriving at a decision.
6. The question however, is whether acknowledgment of liability in a balance sheet is enough to give a fresh period of limitation from the date of the acknowledgment: and on this point also a lot of controversy has been raised by Mr. Lodha, learned counsel for the respondent. He has submitted that when the directors draw up a balance sheet, they do not have the intention of acknowledging any liability and merely discharge a legal duty in setting out the claim, if any, made against the Company. For this submission, the learned counsel has placed reliance on Kashinath Shankarappa v. New Akot Cotton Ginning and Pressing Co. Ltd.. AIR 1951 Nag 255.
7. What Section 19 of the Limitation Act, 1908 requires is that where before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property of right has been made in writing signed by the party against whom such property or right has been claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed, Under Explanation II of the section, it has been made clear that, for purposes of the section, 'signed' means signed either personally or 'by an agent duly authorised in this behalf'. So if in a given case these requirements are fulfilled, there is no reason why the acknowledgment should not give a fresh start to the period of limitation.
8. A balance sheet cannot, with any justification, be excluded from the purview of Section 19 if it otherwise serves its purpose. If a plea is taken that an entry in it amounts to an acknowledgment within the meaning of Section 19, it will be necessary to examine it on the merits. As has been laid down in Shapoor Freedom Mazda v. Durga Prosad Chamaria, AIR 1961 SC, 1236, what Section 19 requires is that the words used in the acknowledgment must indicate the existence of 'jural relation-ship between the parties such as that of debtor and creditor' and the courts lean in favour of a liberal construction of such a statement unless it is shown that it was made clearly without intending to admit the existence of such relationship. With all respect to the learned Judges who decided Kashinath Shankarappa's case. AIR 1951 Nag 255. I do not therefore find it possible to follow the view expressed in it. Besides, that case is distinguishable on the ground that the balance sheet was not made or signed by a duly authorised agent of the company The decision was specifically considered in Bengal Silk Mills Co. v. Ismail Golam Hussain Ariff AIR 1962 Cal 115 and it was held that although there was a compulsion upon the managins agents to prepare the balance sheet the admissions made in it did not cease to be an acknowledgment of liability merely on the ground that it was made in discharge of a statutory duty. It was therefore held that such an admission would fall within the purview of Section 19 of the Limitation Act. I am in respectful agreement with this view Reference may also be made to the decisions in Rajah of Vizianagaram v. The Official Liquidator, Vizianagaram Mining Co. Ltd. AIR 1952 Mad 136, Lahore Enamelling and Stamping Co. Ltd. v. A. K. Bhalla, AIR 1958 Punj 341, and J. A. Dixit v. Official Liquidator, AIR 1963 All 284, in all of which acknowledgments of liability in the balance sheets of a company have been held to be sufficient for the purpose of Section 19 of the Limitation Act, 1908.
9. Courts in England have also taken similar view. In Ledingham v. Bermejo Estancia Co. Ltd., (1947) 1 All ER 749 the loans were recorded in the balance sheet annually. It was held that such a note was sufficient acknowledgment to take the liability out of the operation of the Limitation Act. To the same effect is the decision in Jones v. Bellegrove Properties, Ltd., (1949) 1 All ER 198 which follows Ledingham's case, (1947) 1 All ER 749. This later decision in Jones' case, (1949) 1 All ER 198 has been followed in AIR 1952 Mad 136. AIR 1958 Punj 341 and AIR 1962 Cal 115 to which reference has been made above.
10. The correctness of this view cannot be doubted and I have no hesitation in holding that if an entry in a balance sheet fulfills the requirement of Section 19 of the Limitation Act, 1908, there is no reason why it should not amount to an acknowledgment of liability and give a fresh start to the period of limitation.
11. As has been stated, it is of vital importance, however, that the acknowledgment of the liability should be made by the party against whom the property or right is claimed, and that it should, inter alia, be signed either personally or by angent duly authorised in that behalf. In the case of a company, Section 215(i)(ii) of the Indian Companies Act, 1956 requires that every balance sheet shall be signed on behalf of the Board of Directors by the managing agent, secretaries and treasurers, manager or secretary, if any, and by not less than two directors of the company one of whom shall be a managing director where there is one. Section 133 (i) (ii) of the Indian Companies Act, 1913 also provided that the balance sheet should be signed by two directors or, when there were less than two directors, by the sole director and by the manager or managing agent (if any) of the company. Without such authentication, an admission of liability in a balance sheet will not be authorised and will not amount to an acknowledgment of liability within the meaning of Section 19 of the Limitation Act, 1908.
12. It is not disputed, and is in fact admitted, that the balance sheet (annexure III-A/2) of the Company as on October 29, 1953, and the balance sheet (annexure III-B/2) as on October 23, 1954, have been authenticated by all the four directors of the Company. The balance sheet (annexure III-C/2) as on November 5, 1955 has been authenticated by three of the directors including Radheyshyam Khandel-wal, and the balance sheet as on December 31, 1956 has been authenticated by two directors other than Radheyshyam Khandelwal. Ex facie, therefore, the balance sheets have been shown to be properly authenticated.
13. But the more important question is whether this authentication has been vitiated on account of any fiduciary relationship between the directors, or any of them, and the Company, or for some other similar reason?.
14. Mr. Lodha has argued that as the liability was owed to M/s. Babulal Rukmanand, of which Rukmanand, father of Radheyshyam Khandelwal (one of the directors of the Company) was a partner, the authentication has been vitiated because of that fiduciary relationship inasmuch as Radheyshyam secured the acknowledgments in the balance sheets in his own interest and to his own advantage. For this submission, the learned counsel has placed reliance on In re The Coliseum (Barrow), Limited, (1930) 2 Ch, 44, Re Transplanaters (Holding Co.) Ltd. (1958) 2 All ER 711 and A. C. K. Krishnaswami v. Stressed Concrete Constructions Pvt. Ltd., AIR 1964 Mad 191.
15. Before I consider this aspect of the controversy, it may be mentioned that it cannot be disputed that the question whether there is a proper authority to acknowledge a liability within the meaning of Section 19 of the Limitation Act, 1908, or whether the acknowledgment has been vitiated for any satisfactory reason as, for example, where it has been made by a person standing in a fiduciary relationship with the person concerned, is a question of fact and has to be decided on the facts and circumstances of each case. It is the finding on such a question which will decide the validity of an acknowledgment in a case like the present, and not any hypothetical or abstract considerations. So even if a balance sheet is otherwise found to have been authenticated in accordance with the law, that will not avail the creditor if the authentication is colourable and has been vitiated for some satisfactory reason. As I shall show presently, this view has prevailed both in India and in England and the cases cited by Mr. Lodha do not really lay down any other proposition.
16. Reverting to the case cited by Mr. Lodha, I shall begin with the consideration of the decision in the Coliseum case decided by Maugham J. The dispute in that case related to the directors' fees. The directors of the company, at various board meetings held from time to time, passed the balance sheets before them and two of them signed the balance sheets on behalf of the board to fulfil the requirement of the law Maugham J. held that had the statement been made in the balance sheet that the company owed a specified sum to a shareholder to whom the balance sheet was sent in the usual way, that would have amounted to a sufficient acknowledgment within the authorities. The difficulty, was that the promise, if any, was a promise made by the directors, as a board acting on behalf of the company, to pay to themselves the amount of the directors' fees. His Lordship held that this was not in the circumstances, a promise to pay on behalf of the company having regard to the position which a director as the agent of the company, necessarily occupies in relation to the company. If I may say so with all respect, this view of Maugham J. brings out the correct position of the law. Maugham J. has not taken the view that if an acknowledgment is not found to be vitiated for any justifiable reason, it will not save the limitation for the person in whose favour it has been made, and the decision cannot therefore benefit the Company.
17. The decision in (1958) 2 All ER 711 was also based on the peculiar circumstances of the case. There the applicant sought to prove for money lent to the company by him, but the Liquidator rejected his proof on the ground that the debt was statute-barred. The applicant relied on two balance sheets of the company as acknowledgments of the company's indebtedness within Section 23 (4) of the Limitation Act. It was however found that at all material times the applicant was one of the two directors of the company, and the balance sheets were signed by the two directors. It was held that as the applicant had himself signed the balance sheets, his signature being necessary in order to comply with Section 155 (1) of the Companies Act, 1948 it was not open to him in his fiduciary capacity as director, to give such an acknowledgment to himself. The rule in (1930) 2 Ch. 44 was therefore applied to the case and the decision of Maugham J. was quoted at considerable length in approval This decision was also therefore given on facts which vitiated the authentication and this was why the acknowledgment was not held to be a valid acknowledgment for the purpose of saving the limitation in respect of the proof
18. The question however remains whether the authentication of a balance sheet containing an acknowledgment of liability must necessarily be held to be vitiated in a case in which it is found, on the facts, that the authentication excluding the one made by an interested person, was in accordance with the law and was otherwise above challenge? In other words, the question is whether, in a case like the present, where the balance sheet has been authenticated by the minimum number of directors required by the law it will be vitiated merely because it carries, in addition, the signature of a person standing in a fiduciary relationship with the Company? As has been stated, the Coliseum case, (1930) 2 Ch. 44 and the Transplanters' case, (1958) 2 All ER 711 do not go to the extent of deciding that such an authentication must be held to be vitiated. Mr. Lodha has however cited AIR 1964 Mad 191 in support of his submission that such an authentication will also be vitiated. In that case the petitioner was the managing director of the company and was entitled to draw Rs. 2000/- p.m. as remuneration. According to him, in the balance sheet for the year 1958-59 a sum of Rs. 24,000/- was debited to the profit and loss account as payable to the petitioner on account of his remuneration. It was found that the accounts, as shown in the balance sheet, were unauthorised as they were not passed at the general meeting of the company; and that was sufficient to discredit the alleged acknowledgment. It was however held that even if the board of directors had expressly acknowledged the debt in a writing signed by them, that would nevertheless not operate as an acknowledgment to save time, because, in effect, it would be in acknowledgment made by a director of a debt due to himself. It was further observed that while it was true that the petitioner was not a party to the proceedings of the board of directors, that in itself made no difference to the application of the principle. With all respect. I regret my inability to follow this view. Firstly, it was not necessary to go the extent of making these observations because it had been found that even on the assumption that the proceedings at the meeting of the board of directors amounted to an acknowledgment of the debt, it was barred when the application was filed for winding up the company. Secondly, the learned Judge referred the decisions in (1930) 2 Ch. 44 and (1958) 2 All ER 711 but as I have already pointed out, those cases do not support the extreme view taken in Krishnaswami's case. AIR 1964 Mad 191. So also, the facts in P. S. Thirumali Iyengar v. Official Liquidator, Sri-nivasa Mills Ltd., AIR 1962 Mad 253 which is the only other case cited by the learned Judge, were also quite different.
19. Wherever it has been found as a fact that the authentication of a balance sheet acknowledging the liability is regular and reliable and has not been shown to be vitiated, it has always been upheld, and I shall rest content by making a reference once again to (1947) 1 All ER 749: (1949) 1 All ER 198 ; AIR 1952 Mad 136; AIR 1958 Punj 341 and AIR 1962 Call 15. In the Ledingham case, (1947) 1 All ER 749 it so happened that certain members of the board of the company became entitled to a share of the accrued interest as trustees for the beneficiaries under the will of a person who was once the chairman of the company. The loans due to the deceased chairman were recorded annually in the balance sheet with the acknowledgment that the interest was in arrear since July 31, 1927. The company ultimately ceased to carry on business and the liability of the company having been admitted, a claim was made for the payment of the interest. It was held that the note in the balance sheet was nufficient acknowledgment to take the pre-1927 interest out of the operation of the Limitation Act because it was found that the amount outstanding as shown in the accounts included such interest. And as those accounts had been passed by the company annually since 1927, it was held that it was impossible to say that, because during the last six years the acknowledgments had been made by a board to estates of which they were trustees, the board was acting without the authority of the company. Atkinson J. distinguished the decision in (1930) 2 Ch. 44, and this appears to be the correct view to take of such a case. The question whether a particular acknowledgment in an authenticated balance sheet is valid, is therefore a question which has to be decided on the facts and circumstances of each case.
20. As I have pointed out earlier, the appellant has relied on the four balance sheets which state the assets and the liabilities of the company for the period October 29, 1953 to December 31, 1956. So even if it is assumed that Radheyshyam Khandel-jwal stood in a fiduciary relationship because of his father's interest in the debt owed by the Company, each one of those balance sheets having been signed by not less than two other directors who, it is admitted, were not in any way interested in the acknowledgment of the liability in favour of the appellant, there is no reason why they should not be held to be valid acknowledgments of the liabilities within the meaning of Section 19 of the Limitation Act, 1908.
21. But it still remains to consider whether the balance sheets referred to above relate to the appellant's proof and really extend the period of limitation. The debt is of March 21, 1949 and Mr. Bhansali has placed reliance on agreement Ex. T dated June 25, 1951, which purports to have been signed by all the five partners of the Bharat Oil Mills. Bharatpur, in pursuance of their unanimous resolution dated June 19, 1951. It is claimed that under the agreement it was acknowledged that the firm was indebted to M/s Babulal Rukmanand for the sum which has been claimed in the liquidation proceedings. Then Mr. Bhansali has further submitted that on its incorporation, the respondent Company took over that liability by making a specific provision to that effect in paragraph 3(1) of its Memorandum of Association Then it is alleged that the four balance sheets referred to above made further acknowledgments of the liability so as to carry it up to December 31, 1956. As the period of limitation ceased to run with effect from November 25, 1958 when the winding up order became operative, it has been urged that the appellant's claim is well within limitation.
22. It however appears to me that I should agree with Mr. Lodha that as the genuineness of the alleged agreement (Ex 1) has still to be proved, and as it has also not been established that the amount of the loan acknowledged in the aforesaid four balance sheets includes the Company's liability to the appellant, it will not be proper for me to decide the question whether the appellant's claim was within limitation It will be better if the decision is left to the Official Liquidator, for it relates to the facts of the case. It will be enough for me to say that the Official Liquidator erred in taking the view that the mention of the debt in the balance sheets of the Company could not be considered to be an acknowledgment for the purpose of saving the limitation. I may also mention that the Official Liquidator erred in holding that the claim was already time barred before the balance sheet was drawn up as on December, 31, 1956 because in reaching that conclusion he failed to take the other evidence into consideration. It will therefore be for him to examine and decide the matter afresh on the basis of all the material that is brought to his notice, including the alleged agreement Ex. 1 and the balance sheets. While doing so, it will be open to him to take evidence for the purpose of deciding whether the entries in the balance sheets really relate to the appellant's claim against the Company. That such parol evidence can be taken, will appear from the decision in (1949) 1 All ER 198.
23. The appellant's learned counsel has raised arguments to the effect that the debt owed by the Company is in a nature of a promoter's deposit so as to fall within the purview of Article 60 of the Limitation Act, and that there was also a novation of the contract. I do not think it proper to express an opinion on these new points and leave them also for decision by the Official Liquidator
24. In the result, I give judgment forthe appellant, set aside the impugned orderof the Official Liquidator dated July 22,1966 and sent the case back to him for freshdisposal according to the law in the lightof the observations made above As theappellant did not present its case properlyto the Official Liquidator, there will be noorder as to the costs of this appeal.