2012 (8) TMI 5 - HC - Companies Law

Winding up petition - Held that - Present claim is clearly time barred as under Article 14 Schedule 1 of the Limitation Act, a period of limitation for three years is prescribed for the price of goods sold and delivered where no fixed period of credit is agreed upon - limitation has to commence from the date of delivery of the goods. Article 1 would be applicable only for the balance due on a mutual, open and current account in which case, the limitation would commence in terms of Article 1 of the Limitation Act. Conspicuously the first petition did not speak of the parties having a running account and this was averred only in the amended petition. The petitioner has failed to show that there was a mutual, open and current account where there were reciprocal demands made by the parties after May, 2003. Petition has been filed in November, 2007. It is time barred.

Summary

Issues Involved:
Winding up petition under Sections 433 (e), 434, and 439 of the Indian Companies Act, 1956 based on unpaid dues for supply of dyes and chemicals.

Detailed Analysis:

1. Amendment Application and Contentions:
The petitioner sought winding up of the respondent based on unpaid invoices for goods supplied between 2003-2006. The respondent opposed the amendment application, arguing that no transactions occurred after 2002 due to the poor quality of goods supplied. The court allowed the amendment, noting that the merits of the contentions would be examined during arguments.

2. Discrepancies in Transactions:
The respondent highlighted discrepancies between the ledger accounts filed by the petitioner, indicating that transactions after 2003 were minimal and trial-based. The respondent argued that the samples sent in 2004 and 2006 were unsatisfactory, leading to no further business dealings. The ledger accounts were un-audited and showed inconsistencies, casting doubt on the petitioner's claims.

3. Legal Notice and Disputed Transactions:
The legal notice issued by the petitioner referenced transactions up to 2002, omitting any mention of dealings in 2004 and 2006. The respondent contended that the absence of reference to later transactions in the notice raised suspicions about the petitioner's claims. The court emphasized that a dispute of a civil nature must be genuine to warrant a winding up petition.

4. Time Barred Claim:
The court noted that the claim was time-barred under the Limitation Act, as the petition was filed in 2007 for transactions dating back to 2003-2006. The petitioner failed to establish a mutual, open, and current account after May 2003, rendering the petition time-barred under the Act.

5. Precedent and Dismissal of Petition:
Referring to a Supreme Court judgment, the court emphasized the need for a reasonable cause or genuine dispute to entertain a winding up petition. As the present claim was deemed time-barred, without merit, and lacking evidence of ongoing mutual transactions, the petition was dismissed with costs imposed on the petitioner.

This detailed analysis of the judgment highlights the key contentions, discrepancies in transactions, legal implications of the notice, the limitation period under the Act, and the court's decision based on precedent and the specific circumstances of the case.