1995 (11) TMI 330 - HC - Companies Law

Summary

Issues Involved:
1. Limitation of the claim.
2. Acknowledgment of debt.
3. Bona fide disputed debt.
4. Just and equitable grounds for winding up.

Summary:

1. Limitation of the Claim:
The petition for winding up the respondent company was filed u/s 433(e) and (f) read with sections 434(a) and 439(1)(b) of the Companies Act, 1956. The petitioner claimed to have advanced Rs. 71,00,000 to the respondent between July 2, 1985, and March 8, 1990, with interest. The court noted that the petitioner did not take any action within three years from April 2, 1990, to enforce its claim, and there was no acknowledgment of liability for the amount claimed by the petitioner after this date. The court emphasized that claims made beyond the prescribed period of limitation must be dismissed as per section 3 of the Limitation Act.

2. Acknowledgment of Debt:
The petitioner relied on acknowledgments dated January 21, 1994, and January 24, 1994, which confirmed a sum of Rs. 19,03,500. This amount was paid by the respondent by cheques, and the petitioner's counsel reported the receipt to the court on September 14, 1994. The court held that the petitioner cannot claim to be a creditor for sums barred by limitation and that the acknowledgment of Rs. 19,03,500 does not extend the limitation period for the remaining claim.

3. Bona Fide Disputed Debt:
The respondent contended that the petitioner's claim was collusive and disputed any amount in excess of Rs. 19,03,500. The court found that the petitioner's failure to produce its documents and the alleged benami accounting indicated that the claim was speculative. The court held that the debt claimed, except for the admitted amount, was a bona fide disputed debt for which the company had a prima facie defense. A winding-up petition for a disputed debt intended to pressurize the company would not lie.

4. Just and Equitable Grounds for Winding Up:
The petitioner also invoked section 433(f) on just and equitable grounds. The court held that after the petitioner ceased to be a creditor, the winding-up petition on these grounds would not lie. The court noted that a petition on just and equitable grounds would not be entertained when an adequate alternative remedy was available. The court concluded that the petitioner had not made out a case for winding up on just and equitable grounds.

Conclusion:
The court dismissed the winding-up petition, stating that the petitioner had no enforceable claim within the period of limitation and that the debt claimed was a bona fide disputed debt. The petitioner's application for issuing a subpoena to its auditor was also rejected. The court emphasized that a winding-up order could not be made at the instance of a person who was not a creditor at the time the order was to be made. There was no order as to costs.