By Dr. K. Shivaram, Ajay R. Singh, Advocates
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An application was filed by the appellant to declare respondents Nos. 1 and 2 as insolvents which was allowed by the lower Court. The appeal against the said order was allowed by the Additional District Judge on the legal aspect that the application filed by the appellant was barred by time without going into other contentions. Before the High Court the appellant contended that the order of the lower Court holding that the application barred by limitation was not correct. Admittedly, as per the provisions of section 9 of the Provincial Insolvency Act an application to declare a person as insolvent shall be filed within a period of three months from the date of act of insolvency. The act of insolvency, in this case was on 8-6-2001. The application was filed on 7-9-2001. The lower Appellate Court has considered that the period of limitation as 90 days and consequently, held that the application had been filed after a period of 90 days therefore barred by time.
The Court observed that there was nothing in the provisions u/s.9 of the Provincial Insolvency Act that the period of limitation is 90 days. As per section 3 s.s 35 of the General Clauses Act, ‘month’ shall mean a month reckoned according to the British calendar. Therefore, it is not 90 days that has to be taken into consideration. Evidently, the months of July and August have got 31 days and consequently, the number of days in that month is not the criterion and the month alone is the criterion. In this connection, reliance was placed on a decision reported in in re V. S. Metha and others, AIR 1970 AP 234, wherein it was held by the Division Bench of the High Court that the expression ‘month’ in the statute does not necessarily mean 30 days, but goes according to the Gregorian calendar, unless the context otherwise requires. Therefore, when the period of three months was mentioned u/s.106 of the Factories Act in that case, the Court held that it does not mean 90 days and it means three calendar months.
Accordingly the appeal was allowed and matter was remanded to consider the matter on merits.
