2010 (6) TMI 664 - HC - Companies Law

Winding up petition - whether the debt is time barred? Held that - It is, thus, clear that for enabling a person to institute a suit for recovery of a time barred debt on the basis of the provisions of section 25(3) of the Indian Contract Act, there has to be express promise to pay and not implied promise, as has been held by the learned single judge. In any case the learned single judge could not have made an order for payment of ₹ 9,00,000 in the company petition. The most that could have been done by the learned single judge was to issue a direction for deposit of the amount. In our opinion, also considering the fact that till today the original petitioner has not filed a civil suit for recovery of the amount, which according to the original petitioner was due to him, the appropriate order would be to set aside the order passed by the learned single judge.Therefore, the appeal is allowed. The order passed by the learned single judge impugned in the appeal is set aside

Issues:
Challenge to order for winding up based on debt acknowledgment and implied promise to pay, interpretation of provisions of Limitation Act and Indian Contract Act, validity of direction for payment in company petition, applicability of case law on implied promise to pay time-barred debt.

Analysis:
The appellant challenged an order for winding up based on an alleged debt owed to the respondent. The respondent claimed that the appellant acknowledged the debt but failed to pay, leading to the filing of a company petition. The sole defense raised was that the debt was time-barred. The learned single judge rejected the argument under the Limitation Act but found an implied promise to pay in the reply to the statutory notice, contrary to the law laid down in a previous case. The judge directed the appellant to pay a specific amount within twelve weeks, which was challenged in the appeal.

The High Court analyzed the provisions of the Indian Contract Act and the Limitation Act to determine the validity of the implied promise to pay a time-barred debt. Referring to a previous case, the court held that an implied promise does not constitute a fresh cause of action under section 25(3) of the Indian Contract Act. The court emphasized that for instituting a suit based on section 25(3), there must be an express promise to pay, not an implied one. The court found the learned single judge's decision contrary to established law and set aside the order for payment in the company petition.

The High Court concluded that the learned single judge's decision was not justified in rejecting the submission under the Limitation Act and ordering payment without proper legal basis. The court emphasized that the original petitioner had not filed a civil suit for recovery, and thus, the appropriate action was to set aside the order. The court allowed the appeal, rejecting the company petition and ordering any deposited amount to be refunded to the appellant. The judgment highlighted the importance of explicit promises in legal actions involving time-barred debts, as per established legal principles and case law.

In summary, the High Court's judgment focused on the legal aspects of debt acknowledgment, implied promises, and the interpretation of relevant statutes in the context of the company petition. The court clarified the requirements for initiating legal action on time-barred debts and emphasized the necessity of express promises for such claims. The decision set aside the order for payment and highlighted the importance of adhering to established legal principles in resolving disputes related to debt obligations.

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