Judgment : C.A.No.1074 of 2006 was filed by the State Bank of India (SBI) under Rule-9 of the Companies (Court) Rules, 1959 (for brevity, ‘the Rules of 1959’) seeking a direction to M/s.Sujala Pipes Private Limited (SPPL), Kurnool, the fourth respondent company, to deposit the lease rentals payable by it to M/s.Monarch Pipes Limited (MPL), Hyderabad, represented by its Provisional Liquidator from October, 2001 onwards, pending disposal of RCC No.2 of 2006. This application was filed on 18.07.2006. By order dated 30.08.2006 passed in RCC No.2 of 2006, this Court directed winding up of MPL and accordingly ordered the RCC. Thereafter, by order dated 05.01.2007, C.A.No.1074 of 2006 was also ordered directing SPPL to pay the amounts as per the order dated 03.10.2001 of the Board for Industrial and Financial Reconstruction (BIFR) in Case No.101 of 1994, along with interest. Aggrieved thereby, SPPL filed OSA No.13 of 2007. The application to suspend the operation of the order dated 05.01.2007 in C.A.No.1074 of 2006 was however dismissed by a learned Division Bench of this Court on 17.04.2007. The Division Bench observed that the order in the company application did not suffer from any illegality and accordingly dismissed the interim application seeking suspension thereof. However, the OSA itself came to be allowed by another learned Division Bench of this Court on 16.07.2007. The Division Bench was of the opinion that the objections of SPPL with regard to jurisdiction and limitation had remained unanswered and that apart, the documents which were pressed into service by it at that stage, including the order dated 06.10.1999 passed by the BIFR, were not considered earlier and therefore as the principal questions had remained unanswered and as additional evidence was now forthcoming, the Bench deemed it appropriate that the matter should be considered afresh. The company application was accordingly remitted for fresh disposal in accordance with law after giving due opportunity to the parties. SPPL was also given liberty to produce additional documents before the Company Court. It is upon this remand that C.A.No.1074 of 2006 is now coming up again for consideration. The company application was accordingly remitted for fresh disposal in accordance with law after giving due opportunity to the parties. SPPL was also given liberty to produce additional documents before the Company Court. It is upon this remand that C.A.No.1074 of 2006 is now coming up again for consideration. While so, C.A.No.1881 of 2011 was filed by the Official Liquidator under Section 446(2)(b) of the Act of 1956, read with Rule-9 of the Rules of 1959, representing MPL, the company in liquidation, seeking a direction to SPPL, arrayed as the first respondent in the application, to deposit the lease rentals at Rs.3,50,000/- per month from October, 2001 to 24.05.2005 with interest @ 9% from November, 2001 till the date of realization. It is pertinent to note that the unit of MPL, which is the subject matter of these company applications, was sold in an open auction by the Andhra Pradesh State Financial Corporation (APSFC) and the same was purchased by none other than SPPL. The sale deed in this regard was executed on 24.05.2005. The issue that presently remains for consideration is as to the liability of SPPL to pay the amount upto this date. It may also be noticed that even before the order dated 30.08.2006 was passed in RCC No.2 of 2006 directing the winding up of MPL, the Official Liquidator attached to this Court was appointed as its Provisional Liquidator by order dated 26.06.2006 passed in the said RCC. SBI claims to be a secured creditor of MPL. It filed O.A.No.838 of 2001 before the Debts Recovery Tribunal (DRT), Hyderabad, for realizing the sum of Rs.18,46,77,227-89 Ps. due to it from MPL along with future interest and costs. Earlier, it was also a party to the proceedings before the BIFR in Case No.101 of 1994. While so, as the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), by order dated 01.02.2002 passed in Appeal No.350 of 2001, arising out of the BIFR’s order dated 03.10.2001 in Case No.101 of 1994, directed SPPL to deposit the lease rentals from October, 2001 onwards in this Court, SBI filed C.A.No.1074 of 2006 praying that SPPL be directed to deposit such lease rentals from October, 2001 onwards with the Official Liquidator of this Court pending disposal of the RCC. Upon remand of the matter pursuant to the order dated 16.07.2007 in OSA No.13 of 2007, the Official Liquidator filed C.A.No.264 of 2012 in C.A.No.1074 of 2006 in RCC No.2 of 2006 to add him as an applicant in C.A.No.1074 of 2006 in the place of SBI or in the alternative, to substitute him as the applicant in the said C.A. in the place of SBI. C.A.No.889 of 2008 was filed by SPPL to permit it to file additional documents as per the order dated 16.07.2007 passed in OSA No.13 of 2007. However, SPPL thereafter sought permission to withdraw the said application and by order dated 02.09.2011, C.A.No.889 of 2008 was dismissed as withdrawn taking note of the fact that SPPL had filed C.A.No.1003 of 2011 in the meanwhile. In C.A.No.1003 of 2011, SPPL reiterated its prayer in the earlier application to permit it to file additional documents. By order dated 28.10.2011, the said application was allowed. As stated supra, MPL’s case before the BIFR was numbered as Case No.101 of 1994. The record of the BIFR’s hearing in the said case on 06.10.1999, wherein representatives of MPL, SBI and SPPL participated, reflects that the APSFC, vide letter dated 05.10.1999, had informed the BIFR that in response to its advertisement for sale of the subject property, SPPL had offered Rs.2.25 Crores which was not acceptable. The BIFR also took note of the fact that SPPL was already running the unit on lease without approval. SPPL was advised to improve the offer which thereupon increased it to Rs.2.50 Crores. The valuation report however showed that the total value of the assets was Rs.2.86 Crores and that SPPL was running the factory of MPL for the previous six to eight months on the basis of some understanding. On a consideration of the aforestated facts, the BIFR expressed its displeasure about SPPL trying to take over the unit through the backdoor without any specific approval from it and directed that MPL should immediately submit its proposal for running the unit in collaboration with SPPL to SBI, the Operating Agency, which was to submit its report along with suitable recommendations to the BIFR. Certain other directions were also issued which are not relevant for the purpose of this case. Certain other directions were also issued which are not relevant for the purpose of this case. Thereafter, the record of the BIFR’s proceedings dated 03.10.2001, with the representatives of MPL, SBI, APIDC, APSFC, SPPL and the workers of MPL participating, reflects to this effect: MPL was declared sick under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for brevity, ‘the SICA’) on 18.10.1994. The SBI was appointed as its Operating Agency in terms of Section 17(3) of the said Act. The rehabilitation scheme however came to naught and the BIFR, vide its detailed order dated 13.07.2001, came to the prima facie opinion that the issues could not be resolved and that MPL was liable to be wound up. Show-cause notice dated 17.07.2001 was accordingly issued in this regard. The objections/suggestions received in response to the said show cause notice were considered by the BIFR at its proceedings on 03.10.2001. The APIDC informed the BIFR that SPPL, which had been running the factory of MPL, had submitted a proposal for settlement of the dues of the banks and financial institutions at Rs.2.80 Crores which was not acceptable to them and therefore it had no objection to the winding up of MPL. The representative of SBI, the Operating Agency, informed the BIFR that the proposal of SPPL had been rejected by the State Level Financial Institutions, who were hopeful of getting a better offer upon the winding up of MPL. The dues of the APSFC were stated to be Rs.1.64 Crores; of SBI Rs.18 Crores; while those of APIDC were Rs.4.89 Crores, as on 31.08.2001. The APSFC stated that it was willing to take up sale of the assets of MPL and that it had no objection to the unit being continued to be run by SPPL, subject to payment of lease rentals at the agreed rates permitting the State financial institutions to appropriate the same on pro-rata basis. The representative of SPPL informed the BIFR that they were earlier paying lease rental of Rs.1.5 Lakh, which during the previous year had been increased to Rs.3.50 Lakh. He stated that he had no objection to the winding up of MPL. The representative of SPPL informed the BIFR that they were earlier paying lease rental of Rs.1.5 Lakh, which during the previous year had been increased to Rs.3.50 Lakh. He stated that he had no objection to the winding up of MPL. As the case had been lingering on its file since 1994 and as there was no possibility of reviving MPL at that late stage, the BIFR confirmed its earlier opinion that it would be just, equitable and in public interest if MPL was wound up. In view of the request of the APSFC to take up sale of MPL’s assets, the BIFR appointed it as the Selling Agency under Section 20(4) of the SICA. The BIFR further observed that as the unit was running, the present arrangement with SPPL as to continuation of operations should be permitted subject to regular payment of agreed lease rentals till such time the winding up recommendations were confirmed by the concerned High Court. It was further made clear that SPPL was being allowed to run the unit, subject to the condition that it would extend fullest cooperation to the APSFC and allow the prospective bidders to inspect the unit. It was further specified that in the event of the proposal of any third party being accepted, SPPL should vacate the premises and handover possession of the unit without resistance. The BIFR further directed that as there were no over dues to the workers, the APIDC and APSFC were to adjust the sum of approximately Rs.45,00,000/-held in the no lien account, comprising the lease rentals deposited by SPPL along with interest thereon, on pro-rata basis to their principal exposures. The balance of Rs.30.00 Lakhs said to have been deposited in the said account by the promoters of MPL was directed to be refunded to them. Appeal No.350 of 2001 was filed by SBI against this order before the AAIFR, aggrieved by the directions therein as to the disbursal of the amounts standing in the no lien account. The said appeal was disposed of by the AAIFR by order dated 01.02.2002. The AAIFR took note of the fact that the promoters of MPL had given the subject unit to SPPL on lease without the concurrence of the BIFR. The said appeal was disposed of by the AAIFR by order dated 01.02.2002. The AAIFR took note of the fact that the promoters of MPL had given the subject unit to SPPL on lease without the concurrence of the BIFR. It also took note of the submission of the APSFC that SPPL had deposited with it the lease rental for the month of September, 2001 and that no amount had been paid by SPPL thereafter towards lease rentals. The AAIFR observed that upon formation of a final opinion leading to a recommendation for winding up the sick industrial company which was to be forwarded to the concerned High Court, it was not correct for the BIFR to direct distribution of any amounts received previously towards lease rentals between two creditors alone. Such matters, per the AAIFR, were to be left to be decided by the High Court. Stating so, the AAIFR noted that SPPL was running the unit, though its lease had not been approved by the BIFR, and that the BIFR had allowed it to continue to run the unit upon payment of lease rentals. The AAIFR therefore directed SPPL to deposit the amount of lease rentals from October, 2001 onwards with this Court. Pertinent to note, SPPL was not shown as a party in Appeal No.350 of 2001. It was only in the year 2007 that SPPL chose to challenge the order dated 03.10.2001 passed by the BIFR in Case No.101 of 1994, when it filed Appeal No.63 of 2007 before the AAIFR. The said appeal was dismissed by the AAIFR under order dated 25.04.2007 on the ground of limitation. However, the said order was set aside by this Court in W.P.No.18243 of 2007. By order dated 25.01.2008 passed therein, a learned Judge of this Court held that SPPL’s appeal ought to have been decided on merits after hearing the parties concerned. Thereupon, the AAIFR re-considered Appeal No.63 of 2007 and again dismissed the same by order dated 24.02.2009. Significantly, the grievance of SPPL in the said appeal was only with regard to the use of the words ‘lease’ and ‘lease rentals’ by the BIFR in the impugned order dated 03.10.2001, as it claimed that it had not taken the unit of MPL on lease. Significantly, the grievance of SPPL in the said appeal was only with regard to the use of the words ‘lease’ and ‘lease rentals’ by the BIFR in the impugned order dated 03.10.2001, as it claimed that it had not taken the unit of MPL on lease. Referring to the past history of the case, in its order dated 24.02.2009, the AAIFR also noted the fact that SBI had filed O.A.No.838 of 2001 before the DRT, Hyderabad, which had passed order dated 27.11.2001 directing SPPL to deposit the monthly lease rental of Rs.3.50 Lakh with it. Before the AAIFR, the case of SPPL was that it had earlier offered Rs.2.20 Crores for out-right purchase of the assets of MPL in September, 1998, but as the said offer was not accepted, it began running the unit of MPL under a working agreement entered into by it with MPL on 01.12.1999. This agreement was stated to be for a period of 12 months on the condition of SPPL depositing Rs.1.5 Lakhs per month in an interest bearing no lien account. This agreement was renewed for another 12 months on 01.12.2000 with the same conditions, except that the monthly deposit was enhanced to Rs.3.5 lakhs. This working agreement was submitted to SBI, the Operating Agency, under due acknowledgment dated 23.12.2000. SPPL thereafter bought the unit in the auction conducted by the APSFC for a sale consideration of Rs.1.2 Crores and a sale deed was executed in its favour on 24.05.2005. SPPL therefore contended that it was erroneous on the part of the BIFR to hold that it was running the unit under a lease and that it was liable to pay lease rentals. SPPL pointed out that the working agreement did not mention the word ‘lease’ and therefore the observation of the BIFR as to ‘lease rentals’ was erroneous. SPPL therefore sought a declaration from the AAIFR that it was running the unit on the basis of a working agreement and not on lease. SBI, being the fourth respondent in this appeal, pointed out that SPPL had itself used the term ‘lease’ in all the joint meetings and correspondence exchanged with it and others. SBI further stated that even if it was presumed that it was not a lease rental but a deposit, the same had to be paid by SPPL as long as it continued to use the infrastructure of MPL. SBI further stated that even if it was presumed that it was not a lease rental but a deposit, the same had to be paid by SPPL as long as it continued to use the infrastructure of MPL. The AAIFR noted that the BIFR’s order dated 03.10.2001 was primarily in connection with the objections and suggestions received in response to the show cause notice for winding up MPL, issued on the basis of its prima facie opinion that it was liable to be wound up. The AAIFR pointed out that the issue as to whether SPPL was running the unit of MPL on lease or otherwise was not the primary issue for consideration but para-6 of the BIFR’s order dated 03.10.2001 reflected that the representative of SPPL himself submitted that it was earlier paying lease rental of Rs.1.5 lakhs per month, which had been enhanced to Rs.3.5 Lakhs per month during the earlier year. Further, in its letter dated 24.09.2001 addressed to SBI also, SPPL thanked SBI for its co-operation in permitting SPPL to operate the unit on lease. In para-2 of the said letter, SPPL stated that it had renovated the plant after taking it on lease and was paying lease rent of Rs.1.5 Lakh per month from December, 1999 to November, 2000 which was subsequently enhanced to Rs.3.25 Lakh per month from 01.12.2000. The AAIFR was not impressed by the contention of SPPL that the words ‘lease’ and ‘lease rentals’ had been loosely used by it in the said correspondence. The AAIFR observed that in formal correspondence which had legal import; words were not expected to be used loosely. The AAIFR further agreed with SBI that whether it was called ‘lease rent’ or a ‘deposit’ was immaterial, and that SPPL did not stand absolved of paying the same as long as it continued to use the unit of MPL and make business out of it. Surprisingly, SPPL advanced arguments before the AAIFR that the Company Court or a Writ Court would have no jurisdiction as the case of MPL was referred to the BIFR under Section 15(1) of the SICA. This contention was disallowed by the AAIFR. The AAIFR concluded that SPPL was pursuing parallel proceedings in various fora and as the issue involved in the appeal was already before the competent Court, there was no justification for SPPL to indulge in multiple litigation on the same issue. This contention was disallowed by the AAIFR. The AAIFR concluded that SPPL was pursuing parallel proceedings in various fora and as the issue involved in the appeal was already before the competent Court, there was no justification for SPPL to indulge in multiple litigation on the same issue. The AAIFR therefore held that it did not find any legal infirmity in the impugned order dated 03.10.2001 of the BIFR and dismissed the appeal. This order was subjected to challenge before this Court in W.P.No.7634 of 2009. The prayer in the writ petition was to set aside the order dated 24.02.2009 passed by the AAIFR and to direct it to adjudicate the issue as to whether SPPL was holding the unit on lease or on any other understanding. However, during the course of arguments, it appears that SPPL merely contended that the observations in the orders of the BIFR and the AAIFR should not be treated as binding on the Company Court in the pending winding up proceedings. The Division Bench, by order dated 14.04.2009, observed that the submissions made before it could as well be urged by SPPL before the Company Court and as SPPL was not aggrieved by the AAIFR’s order confirming the BIFR’s order that MPL be wound up, there was no reason to interfere with the AAIFR’s order dated 24.02.2009 or make any observations as requested by SPPL. The writ petition was accordingly dismissed. It is pertinent to note that SPPL got impleaded on its own in O.A.No.838 of 2001 filed by SBI against MPL before the DRT, Hyderabad. The Managing Director of SPPL filed affidavit dated 24.12.2001 therein, wherein he confirmed that MPL had approached it in the year 1999 offering to give its factory consisting of land, building and machinery on lease basis and thereupon, a working agreement was signed on 01.12.1999 for a period of one year. It is thus clearly manifest that MPL intended that SPPL take its unit only on lease basis. Thereupon the DRT, Hyderabad, ordered the payment of monthly lease amounts by the SPPL. The working agreement dated 01.12.1999 between MPL and SPPL reflects that MPL was desirous of running its factory with the financial assistance of SPPL and SPPL, in turn, was interested in utilizing the infrastructure available at the factory of MPL. Thereupon the DRT, Hyderabad, ordered the payment of monthly lease amounts by the SPPL. The working agreement dated 01.12.1999 between MPL and SPPL reflects that MPL was desirous of running its factory with the financial assistance of SPPL and SPPL, in turn, was interested in utilizing the infrastructure available at the factory of MPL. The agreement reads to the effect that MPL had approached SPPL and represented to it that SPPL should take the aforesaid infrastructure for a period of 12 months on such terms and conditions and on payment of such ‘rentals’ as may be mutually agreed upon, commencing from 01.12.1999, and thereupon, the terms were settled to the effect that upon termination of the agreement by efflux of time or otherwise, SPPL would at its own cost and expense handover or cause to be handed over to MPL the said infrastructure. SPPL was to deposit Rs.1,50,000/- per month in SBI in an interest bearing no lien account and this amount was to be adjusted against the cost of acquisition of MPL by SPPL. This agreement was to come into force from the date of acceptance of the same by the BIFR/SBI. Thereafter, under the working agreement dated 01.12.2000, MPL and SPPL again reduced into writing the fact that MPL had approached SPPL and represented to it that it should take the infrastructure of MPL for a period of 12 months on such terms and conditions and on payment of such ‘rentals’ as may be mutually agreed upon, commencing from 01.12.2000. Again, it was reiterated that upon termination of the said agreement by efflux of time or otherwise, SPPL would, at its own cost and expense, forthwith handover or cause to be handed over to MPL the said infrastructure. SPPL was to deposit Rs.2,75,000/- per month in SBI in an interest bearing no lien account and this was to be adjusted against the cost of acquisition of MPL by SPPL. This agreement also was to come into force from the date of its acceptance by BIFR and SBI. SPPL was to deposit Rs.2,75,000/- per month in SBI in an interest bearing no lien account and this was to be adjusted against the cost of acquisition of MPL by SPPL. This agreement also was to come into force from the date of its acceptance by BIFR and SBI. In its counter filed in C.A.No.1881 of 2011, SPPL contended that as per the terms of the working agreements dated 01.12.1999 and 01.12.2000, it was the intention of MPL and SPPL that in the event MPL recovered from its sickness, it would sell the unit to SPPL and the amount deposited by SPPL with the SBI under the working agreements would be adjusted against the sale consideration. As this did not come to pass, SPPL stated that it had purchased the unit of MPL in the open auction conducted by the APSFC in 2005. It therefore asserted that it was not liable to pay any amounts under the working agreements and was entitled to recover the amounts deposited by it in pursuance thereof in the no lien account in the SBI. It accordingly sought dismissal of the application on the ground of limitation or alternatively, on the ground that there was no lease between the parties. As already noted supra, neither the BIFR nor SBI gave their consent and approval to these so-called working agreements entered into between SPPL and MPL. SPPL addressed letter dated NIL to the Deputy General Manager of SBI, Secunderabad, in the context of the subject lease agreement with MPL, stating thus: ‘With reference to the above subject, we are herewith submitting a draft lease agreement with regard to MPL, Anantapur, for your kind approval’. There is however no evidence of SBI approving the so-called lease agreement. The BIFR, long after the execution of these working agreements, permitted the arrangement thereunder to continue by its order dated 03.10.2001, subject to regular payment of the agreed lease rentals. SPPL was very much a party to this order. Though SPPL was not a party to Appeal No.350 of 2001 filed by SBI before the AAIFR and its contention is that the direction passed therein on 01.02.2002 was therefore not binding on it, the fact remains that the AAIFR merely reiterated the direction of the BIFR and did not issue any fresh direction in this regard. Though SPPL was not a party to Appeal No.350 of 2001 filed by SBI before the AAIFR and its contention is that the direction passed therein on 01.02.2002 was therefore not binding on it, the fact remains that the AAIFR merely reiterated the direction of the BIFR and did not issue any fresh direction in this regard. SPPL was a party to the BIFR’s order dated 03.10.2001 and was therefore bound by the said direction. It was only in Appeal No.63 of 2007, that SPPL chose to assail the correctness of this order. Further, its grievance was not with regard to its liability to pay the amount but only with regard to its nomenclature. The order dated 24.02.2009 passed by the AAIFR in this appeal clearly demonstrates this aspect as the only grievance that SPPL raised before the AAIFR was with regard to the use of the words ‘lease’ and ‘lease rentals’ by the BIFR in its order dated 03.10.2001. This is further confirmed by the arguments advanced on behalf of SPPL before the Division Bench of this Court in W.P.No.7634 of 2009 that the Company Court dealing with C.A.No.1074 of 2006 would misconstrue the observations made by the AAIFR in its order dated 24.02.2009 as to the ‘lease’ and ‘lease rentals’ to be binding. It is therefore too late in the day for SPPL to deny that, be it under the name of ‘lease rental’ or ‘deposit’, it was bound to comply with the order dated 03.10.2001 passed by the BIFR and make the payment of Rs.3,50,000/- per month as directed therein. In this regard it may also be noticed that as per the so-called agreement between SPPL and MPL, the ‘rentals’ deposited by SPPL were to be adjusted against the cost of acquisition of MPL by SPPL. This condition had no binding effect, as by the date of the execution of the said agreement in 1999, MPL had already been registered with the BIFR as a sick company under Section 15 of the SICA. Without the permission of the BIFR, no such agreement for disposal of its assets could have been entered into by MPL. This condition had no binding effect, as by the date of the execution of the said agreement in 1999, MPL had already been registered with the BIFR as a sick company under Section 15 of the SICA. Without the permission of the BIFR, no such agreement for disposal of its assets could have been entered into by MPL. Further, in the order dated 03.10.2001, the BIFR merely approved the continuation of the arrangement obtaining under the said working agreements that SPPL should be allowed to continue with its operations in the unit of MPL upon regular payment of the lease rentals and there was no sanction for the understanding between MPL and SPPL as to the takeover of the unit. On the other hand, the observations in the order, extracted supra, indicate to the contrary as SPPL was to abide by the orders of APSFC, the Selling Agency, as to delivery of the unit in the event it was sold to a third party. Though SPPL seeks to distance itself from the status of these agreements by claiming that they did not amount to a lease notwithstanding its admission to that effect, be it before the BIFR, DRT or in its correspondence with SBI, the nomenclature was, as pointed out by the AAIFR, wholly immaterial and inconsequential. Be it under whatever name, SPPL was visited with the obligation of making the monthly payment for use of the infrastructure of MPL and the order of the BIFR directing so attained finality. The issue presently is whether the liability attaching to SPPL became unenforceable by the intervening circumstances. In so far as C.A.No.1074 of 2006 filed by SBI is concerned, Sri E.Manohar, learned Senior Counsel appearing for SPPL, stated that SBI was aware since the very beginning of the non-payment of the amounts by SPPL, as per the order dated 03.10.2001 passed by the BIFR, but failed to file a suit for recovery of this amount. He therefore contended that the application filed by SBI in the year 2006 was barred by delay and laches. He further contended that SBI had no locus to maintain the application and that it was only the Official Liquidator who could do so upon his initial appointment as the Provisional Liquidator of MPL on 26.06.2006 and as it’s Official Liquidator, upon the winding up order being passed on 30.08.2006 in RCC No.2 of 2006. He further contended that SBI had no locus to maintain the application and that it was only the Official Liquidator who could do so upon his initial appointment as the Provisional Liquidator of MPL on 26.06.2006 and as it’s Official Liquidator, upon the winding up order being passed on 30.08.2006 in RCC No.2 of 2006. Learned Senior Counsel also objected to the implead application, C.A.No.264 of 2012 in C.A.No.1074 of 2006, filed by the Official Liquidator, on the ground that the same was barred by limitation. A similar attack was launched against the independent application filed by the Official Liquidator in C.A.No.1881 of 2011 seeking directions against SPPL. Learned Senior Counsel pointed out that C.A.No.1074 of 2006 was filed by SBI invoking the inherent powers of the Company Court under Rule 9 of the Rules of 1959, which clearly demonstrated that there was no separate provision for SBI to seek such relief under the Act of 1956. He further contended that though an objection had been taken by SPPL in its counter filed in C.A.No.1074 of 2006 at the earliest point of time that SBI, being a creditor of MPL, had no locus to file the said application, the Official Liquidator did nothing in the matter till the year 2011, when C.A.No.1881 of 2011 was filed. The prayer in C.A.No.1074 of 2006 is that this Court should direct SPPL to deposit the lease rentals payable to MPL from October, 2001 onwards to the Official Liquidator pending disposal of RCC No.2 of 2006. RCC No.2 of 2006 came to be ordered on 30.08.2006 itself when this Court directed the winding up of MPL upon the recommendation of the BIFR. However, as stated earlier, the unit of MPL was purchased by SPPL on 24.05.2005 even before the filing of this application and therefore, the alleged liability of SPPL to make the monthly payments would be only upto this date. The prayer in C.A.No.1074 of 2006 in seeking such payments to be made pending disposal of the RCC was therefore misconceived. The alleged liability of SPPL from October, 2001 to May, 2005 had already crystallized and only this ascertained sum could be recovered and not a subsisting recurring monthly liability. This Court, having given its earnest consideration to this application, is of the opinion that C.A.No.1074 of 2006 filed by SBI in the capacity of a creditor of MPL was not maintainable. This Court, having given its earnest consideration to this application, is of the opinion that C.A.No.1074 of 2006 filed by SBI in the capacity of a creditor of MPL was not maintainable. The said application was filed by SBI on 18.07.2006. By that time, the Official Liquidator had already been appointed as the Provisional Liquidator of MPL on 26.06.2006. C.A.No.1074 of 2006, at the behest of SBI, a creditor of the company, after the Liquidator came into the picture was therefore not maintainable. In SIRMUR CHEMICAL AND GENERAL INDUSTRIES LTD. V/s. UNION OF INDIA ((1962) 32 COMP CAS 826), the Supreme Court observed that when an order for winding up a company is made, the managing agent of the company ceases to be so from the date of the commencement of the winding up and would lose his right to institute any legal proceeding on behalf of the company. Upon the passing of an order for winding up, the Supreme Court observed that no person other than the Liquidator has the power to institute or defend any legal proceedings on its behalf. The same principle was reiterated by the Kerala High Court in A.P.K.KALIAPPA NADAR V/s. KATHAYEE COTTON MILLS, LTD.((1964) 2 COMPANY LAW JOURNAL 66), wherein it observed that once a Liquidator is appointed, even the directors cease to have power to sue on its behalf and a shareholder or creditor of the company would not be entitled to maintain an action when the Liquidator was functioning. Significantly, this is not a case involving voluntary winding up of MPL. Therefore, its creditor cannot maintain an application of this nature under Section 518 of the Act of 1956 which applies only to voluntary winding up proceedings. The Official Liquidator filed an independent application in C.A.No.1881 of 2011 seeking directions against SPPL on the same lines as in C.A.No.1074 of 2006. The Official Liquidator thereafter filed a transpose application in C.A.No.1074 of 2006 seeking to come on record as the applicant therein. This step was perhaps resorted to being apprehensive of the issue of limitation. The power of this Court under O.1.R.10 CPC is well settled and this Court can implead proper and necessary parties at any stage of the proceedings so as to do substantial justice in the matter. This step was perhaps resorted to being apprehensive of the issue of limitation. The power of this Court under O.1.R.10 CPC is well settled and this Court can implead proper and necessary parties at any stage of the proceedings so as to do substantial justice in the matter. As pointed out by the Supreme Court in BAL NIKETAN NURSERY SCHOOL V/s. KESARI PRASAD ( (1987) 3 SCC 587 ), if the Court is satisfied that a bonafide mistake occurred in the filing of a suit in the name of the wrong person then the Court can set right matters, in exercise of its power under O.1.R.10 CPC, and promote the cause of justice. This would however require that that instituted suit be proper and maintainable. As this Court has already opined that C.A.No.1074 of 2006 was itself not maintainable, the question of impleading or transposing parties in this application does not arise. It is no doubt true that in its counter dated 30.08.2006 filed in C.A.No.1074 of 2006, SPPL specifically raised an objection that SBI, claiming to be a secured creditor of MPL, could not maintain the application and that it had to be filed only by the Official Liquidator. The same is reflected in para-6 of the order passed in the first instance on 05.01.2007 in C.A.No.1074 of 2006. Notwithstanding the same, the Official Liquidator filed a separate application to direct SPPL to deposit the lease rentals at Rs.3,50,000/- per month from October, 2001 to 24.05.2005, only in the year 2011. The question that arises for consideration is whether this delay on the part of the Official Liquidator would be fatal to the claim? In this regard, SPPL contended that the last payment due under the working agreements would have been in May, 2005 as the agreements ceased to have effect upon its becoming the successful bidder in the open auction and purchasing the unit of MPL. SPPL therefore reckoned that the commencement of limitation would start from that date. SPPL contended that even as per the limitation allowed under the Act of 1956, the Official Liquidator ought to have sued for recovery of the amounts allegedly due before the date of expiry of the additional one year available under Section 458A of the Act of 1956. SPPL further contended that even under the Limitation Act, 1963, the period of limitation ended on 23.05.2008, upon expiry of three years. SPPL further contended that even under the Limitation Act, 1963, the period of limitation ended on 23.05.2008, upon expiry of three years. It therefore asserted that the application filed by the Official Liquidator was also barred by limitation. The law on this aspect is well settled. In KARNATAKA STEEL AND WIRE PRODUCTS V/s. KOHINOOR ROLLING SHUTTERS AND ENGINEERING WORKS ((2002) 112 COMP CAS 606), the Supreme Court observed that Section 458A of the Act of 1956 merely excludes the additional period of one year from the date of the order of winding up in so far as the issue of limitation is concerned, and therefore the Official Liquidator would be entitled to file a claim for a recoverable debt duly excluding the period indicated under Section 458A of the Act of 1956. It was therefore held that Section 458A could not be construed to mean that even a time barred debt or a claim which was not enforceable on the date of the winding up, would stand revived once a winding up application is filed and order is made. The Supreme Court observed that on a plain reading of the provision it was crystal clear that it merely excluded the period during which the company was being wound up and an additional period of one year immediately following the date of the winding up order. Thereby, the Official Liquidator would be entitled to exclusion of the period of four years instead of three years as provided under Article 137 of the Limitation Act, 1963. In BEST AND CROMPTON ENGINEERING LTD. V/s. OFFICIAL LIQUIDATOR, MADRAS(AIR 1995 MADRAS 20), a Full Bench of the Madras High Court affirmed that whether a claim was barred or was enforceable had to be determined with reference to the cause of action arising and the date of filing only and all other provisions would only enable the computation of the period. In each case, the application of the Liquidator would have to be considered with reference to the nature of the claim and then only the computation could be done in order to find out whether the claim was in time or not. In each case, the application of the Liquidator would have to be considered with reference to the nature of the claim and then only the computation could be done in order to find out whether the claim was in time or not. In computing the period of limitation for claims to be made under Section 446(2)(b) of the Act of 1956, the Full Bench observed that the applicability of the relevant Article of the Limitation Act with reference to the nature of the claim has to be decided and then the question as to whether such period of limitation had or had not expired on the date the petition for winding up was filed or the winding up proceeding commenced has to be determined. C.A.No.1881 of 2011 was filed by the Official Liquidator under Section 446(2)(b) of the Act of 1956 read with Rule-9 of the Rules of 1959. Section 446(2)(b) deals with the power to entertain or dispose of any claim made by or against a company. Such a claim would invariably be subject to the law of limitation and applying the law, this application of the Official Liquidator was clearly barred by time. However, during the course of arguments Sri M.Anil Kumar, learned counsel for the Official Liquidator, drew the attention of this Court to Section 468 of the Act of 1956 which is a replication of Section 185 of the Indian Companies Act, 1913. Section 468 reads as under: “468. Delivery of property to liquidator.—The Court may at any time after making a winding up order, require any contributory for the time being on the list of contributories, and any trustee, receiver, banker, agent, officer or other employee of the company, to pay, deliver, surrender or transfer forthwith, or within such time as the Court directs, to the liquidator, any money, property or books and papers in his custody or under his control to which the company is prima facie entitled.” Pertinent to note, under Section 468 of the Act of 1956, the question of limitation would not arise at all. In SARDAR RAGHBIR SINGH AHLUWALIA V/s. PEOPLE’S INSURANCE CO. LTD (IN LIQUIDATION)((1966) 36 COMP CAS 219), a Division Bench of the Punjab High Court was dealing with Section 185 of the Companies Act, 1913 which is in pari materia with Section 468 of the Act of 1956. In SARDAR RAGHBIR SINGH AHLUWALIA V/s. PEOPLE’S INSURANCE CO. LTD (IN LIQUIDATION)((1966) 36 COMP CAS 219), a Division Bench of the Punjab High Court was dealing with Section 185 of the Companies Act, 1913 which is in pari materia with Section 468 of the Act of 1956. The matter arose in the context of the appellant, who had received sums on behalf of the company in liquidation in the capacity of its Manager, who was called upon by the Official Liquidator to remit the same. The appellant contended that Section 185 of the Indian Companies Act, 1913 had no application to him and that the Liquidator’s application was barred by time. The learned single Judge overruled the objections and held that the application filed by the Liquidator under Section 185 was competent and was not barred by time. The Division Bench observed that the obvious purpose of Section 185 of the Indian Companies Act, 1913 was to set up machinery by which a trustee/receiver/banker /agent or an officer of the company receiving money on its behalf could be compelled to deliver it to the Liquidator. As regards the issue of limitation, the Division Bench observed that the language of the provision made it clear that the application could be made after the winding up order at any time. This remedy was held to be summary as its object was apparently to protect the company’s property in the hands of certain persons. No question of limitation would seem to arise in such circumstances was the conclusion of the Division Bench. Sri E.Manohar, learned Senior Counsel, contended that SPPL cannot be brought within the ambit of Section 468 of the Act of 1956 as it does not fall into any of the categories mentioned in Section 468 of the Act of 1956. The categories so mentioned are those of a contributory, trustee, receiver, banker, agent, officer or other employee of the company. The relationship between SPPL and MPL was sourced in the working agreements dated 01.12.1999 and 01.12.2000. There is controversy as to whether SPPL was a lessee of MPL in the light of the clause in the working agreements to the effect that the sums deposited by it shall be adjusted against the cost of acquisition of MPL by SPPL. The relationship between SPPL and MPL was sourced in the working agreements dated 01.12.1999 and 01.12.2000. There is controversy as to whether SPPL was a lessee of MPL in the light of the clause in the working agreements to the effect that the sums deposited by it shall be adjusted against the cost of acquisition of MPL by SPPL. However, the working agreements also envisaged SPPL returning the unit to MPL upon expiry of the agreements by efflux of time, indicating that the parties also contemplated the possibility of the agreements not being fully workable. SSPL was obligated under these working agreements to pay the monthly ‘rentals’ to the credit of MPL into the interest bearing no lien account. As pointed out by SPPL itself, this working agreement was to be given full effect only in the event MPL recovered from its sickness and thereafter sold its unit to SPPL. However, this contingency did not materialize. The question of adjusting the ‘rentals’ paid against the sale consideration to be paid by SPPL to MPL therefore did not arise in any event. Further, the arrangement under the working agreements received the limited sanction of the BIFR and AAIFR and such sanction was subject to SPPL continuing to make the monthly deposits at Rs.3,50,000/- per month from October, 2001 onwards. The liability of SPPL to pay these monthly amounts attained finality as SPPL’s appeal against the order dated 03.10.2001 passed by the BIFR was dismissed by the AAIFR under its order dated 24.02.2009 and the only grievance raised by the SPPL against this order in W.P.No.7634 of 2009 was with regard to the use of the words ‘lease’ and ‘lease rentals’ in the order dated 03.10.2001 and AAIFR’s order dated 24.02.2009 and its liability to pay the said amounts as such was never challenged. In effect, SPPL became the trustee of MPL in so far as these deposits under the working agreements were concerned, which were validated to this extent and held obligatory by the BIFR and the AAIFR. The irrefutable fact remains that SPPL utilized the infrastructure of MPL from October 2001 to May 2005 for generating its business and no payment whatsoever was made to MPL for such use of its assets. The irrefutable fact remains that SPPL utilized the infrastructure of MPL from October 2001 to May 2005 for generating its business and no payment whatsoever was made to MPL for such use of its assets. This Court is also mindful of the fact that SPPL which initially offered Rs.2.80 Crores to takeover the unit of MPL ultimately bought it at a mere Rs.1.2 Crores. SPPL therefore benefited at the cost of MPL at every turn. SPPL would consequently be liable to reimburse MPL for exploitation of its assets with interest at least at this stage. SPPL shall therefore pay interest to MPL at 6% per annum on the sums due. C.A.No.1881 of 2011 filed under Section 446(2)(b) of the Act of 1956 proceeded on the wrong assumption that this liability was yet to be determined. However, it is within the inherent powers of this Court to substitute the proper and applicable provision even if a wrong provision of law has been relied upon or if the application is filed under a wrong provision of law. Pertinent to note, evenan order passed by a statutory authority under a wrong provision of law would be held valid once it is established that such authority had the power to make such order under another provision. This being the position with orders passed by authorities, a party taking recourse to a wrong provision of law while approaching the Court cannot be placed in a worse situation. As pointed out by the Supreme Court in Borpukhurie Tea Estate V/s. Presiding Officer, Industrial TribunaL( (1978) 2 SCC 667 ), Courts, charged with the duty of administering justice, have to remember that it is not the form but the substance of the matter that has to be looked into and parties cannot be penalized for inadvertent errors committed by them in the conduct of cases. Once the relief sought is traceable to another source available in law, mere filing of the application under the wrong provision would not have the effect of denuding the party of the right to claim the relief. (See DINESH DALMIA V/s. CBI ( (2007) 8 SCC 770 )and COAL INDIA LIMITED V/s. UJJAL TRANSPORT AGENCY ( (2011) 1 SCC 117 ). (See DINESH DALMIA V/s. CBI ( (2007) 8 SCC 770 )and COAL INDIA LIMITED V/s. UJJAL TRANSPORT AGENCY ( (2011) 1 SCC 117 ). This Court would therefore be justified in treating an application filed by a party under a wrong provision of law as one filed under the appropriate provision and deal with it accordingly. The filing of C.A.No.1881 of 2011 by the Official Liquidator under the wrong provision of the Act of 1956 therefore has no significance once the relief claimed thereunder can be traced to any other provision in the statute. This Court is of the considered opinion that the matter squarely falls within the four corners of Section 468 of the Act of 1956 and that SPPL stood in the status of a trustee of MPL. SPPL was bound in good faith to account for the amounts which it was liable to pay under its working agreements with MPL, as to which it suffered orders before the BIFR and the AAIFR that attained finality. As Section 468 of the Act of 1956 clearly posits that an application thereunder can be moved at any time after a winding up order is made, the question of the application being barred by limitation would not arise. The arguments advanced in this regard and the decisions relied upon to buttress these arguments are therefore wholly irrelevant. C.A.No.1881 of 2011 is accordingly allowed. M/s.Sujala Pipes Private Limited, the first respondent, shall pay to M/s.Monarch Pipes Limited, represented by the Official Liquidator attached to this Court, the arrears of the monthly rentals/deposits @ Rs.3,50,000/- per month from October, 2001 till 24.05.2005 along with interest at the rate of 6% per annum within four weeks from the date of receipt of a copy of this order. C.A.No.1074 of 2006 is dismissed as not maintainable. C.A.No.264 of 2012 in C.A.No.1074 of 2006 does not survive for consideration and is accordingly dismissed.