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TMI Blog1983 (10) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent, to 18 per cent, per annum. An amount of Rs. 1,27,227. 16 was debited to its account on account of interest till March 13, 1978. Respondent No. 1 paid an amount of Rs. 5,48,000 towards the principal. Further, a sum of Rs. 13,70,740 was adjusted against the loan account, being its contribution of the various lucky chits of lucky groups held by it. Thus, an amount of Rs. 5,48,397.16 remained due from respondent No. 1 to the petitioner on March 13, 1978, out of which a sum of Rs. 6,000 was paid by it on July 7, 1978, vide a cheque drawn on the Central Bank of India, Batala. The total interest from March 13, 1978, to December 11, 1979, on the said amount at the rate of 12 per cent, per annum comes to Rs. 1,14,144. Thus, the amount which is now due from respondent No. 1 on December 11, 1979, comes to Rs.6,56,541 16 which has not been paid in spite of repeated requests. Respondents Nos. 4 to 8 stood sureties to the extent of Rs.3,75,000, Rs.4,00,000, Rs. 30,000, Rs. 90,000 and Rs. 30,000, respectively. Consequently, they are also liable to pay the amounts. It was, therefore, prayed that a decree for recovery of Rs.6,56,541 16 together with future interest be passed in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the petition and consequently it is not maintainable ? OPR 1, 2 and 5 Issue No. 1 : The first question that arises for determination is whether the petition is barred by limitation. The learned counsel for the petitioner has urged that Chanan Lal, the deceased managing director of respondent No. 1, had been given the facility of raising loans for an indefinite limit. The account between the parties was a mutual, current and running account and the last transaction was on July 7, 1978. It is alleged that thus the limitation for filing the petition started running from July 7, 1978, and it was filed within three years thereafter, that is, on July 4, 1981. He urges that, therefore, under article 1 of the Limitation Act, the suit is within limitation. I have considered the argument of the learned counsel. Article 1 provides that a suit for the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties, can be filed within three years from the close of the year in which the last item admitted or proved is entered in the account. The question that has to be determined is whether the account was a mutual account or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for grant of loan of Rs. 75,000. The loan was sanctioned by the loan committee on September 7, 1973. The amount was withdrawn by respondent No. 1 on September 8, 1973. After the sanctioning of the loan, pronote, exhibit P-171, was executed by respondent No. 1 on September 8, 1973. The amount thereafter was paid on the same date through cheque, exhibit P-44. Some other such applications which have been brought on the record are exhibits P-173, P-175 and P-185. All the applications were considered separately and the amount was sanctioned after due consideration. Regarding each loan, separate sureties were furnished by respondent No. 1 and interest at different rates was agreed to be paid by it. Todar Mai, P.W.-12, who was the chairman of the petitioner, admitted in his statement that if the loan committee agreed to give loans, then pronotes were got executed from the loanees. Sometimes, those persons used to make written applications as well. If any person used to make an application for loan that was considered by the loan committee and thereafter the loan was granted to him. He also admitted that when loan was given to a loanee, either guarantee from another person or guarantee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought the original partnership deed dated April 1, 1976. A note was then given that the learned counsel for the petitioner wanted the production of photostat copies of the balance-sheets and the partnership deed. The witness stated that he would produce the photostat copies of the documents in the latter part of the day. Then it was ordered that the documents might be got exhibited by the petitioner's counsel in his statement. No objection was raised at that time by the counsel for the respondents. Later, the documents were produced and they were exhibited in the statement of Mr. Narang. Even then no objection was raised with regard to their exhibition. It is well-settled that if the documents are exhibited without any objection regarding the mode of proof, a party to the litigation cannot be allowed to raise it later. Reference in this regard may be made to Gopal Das v. Sri Thakurji, AIR 1943 PC 83 ; P. C. Puru-shothama Reddiar v. S. Perumal, AIR 1972 SC 608, and Amar Singh v. Tej Ram, AIR 1982 P H 282 ; [1982J PLR 237. The following observations of their Lordships of the Privy Council in Gopal Das' case may be read with advantage (p. 87): "Where the objection t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibits do not contain the signatures of any person while on the others the signatures have not been proved. He, however, made a reference to the statement of Raj Kumar, R. W. 1, who stated that the income-tax returns were filed by them at Batala but he never appeared before the Income-tax Officer. From the statement, it cannot be inferred that the balance-sheets are signed by any of the partners. Under section 18, a writing amounts to an acknowledgment if it bears the signatures of the author. The statement of Raj Kumar, in my view, does not lead to a conclusion that the balance-sheets bear the signatures of a partner of the firm. Therefore, the counsel cannot derive any benefit from it. Now, it is to be seen that if the balance-sheets are assumed to bear the signatures of a partner of respondent No. 1, whether these amount to acknowledgments of the debt. It is well-settled that a document containing acknowledgment should be construed liberally and that where on its reasonable construction it is found that it contains an express or implied admission by the author of the document of his liability, it will constitute an acknowledgment of liability within the meaning of section 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to voluntary winding-up. Section 458A provides that notwithstanding anything in the Indian Limitation Act, 1908, or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the court, the period from the date of commencement of the winding up of the company to the date on which the winding-up order is made (both inclusive) and a period of one year immediately following the date of the winding-up order shall be excluded. (Emphasis has been laid by underlining), from a reading of the section as well, it is evident that it applies to a winding-up by the court. It is also evident that the time which is to be excluded is the one from the date of commencement of the winding-up of the company up to the date when the order of winding-up is passed by the court and a period of one year thereafter. In the case of voluntary winding-up, no petition is to be filed and no order of winding-up is to be passed by the court. Section 441 relates to commencement of winding-up by the court and section 512 to the powers and duties of the liquidator in voluntary winding-up. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made. The question to be examined is whether the petitioner is entitled to a fresh period of limitation regarding all the debts from July 7, 1978, or regarding that debt towards which the repayment would be deemed to have been made. Sections 59 to 61 of the Contract Act relate to appropriation of payments made by a debtor to his creditor. The debtor has a discretion under section 59 to make payment to be applied to the discharge of a particular debt in case there are several debts due from him and the payment is to be applied by the creditor towards that debt. In case the debtor omits to intimate the application of the amount to a particular debt, the creditor is entitled under section 60 to apply it at his discretion to any lawful debt actually due, though it may be even barred by limitation. If neither of the parties makes any appropriation, the payment shall be applied under section 61 in discharge of the debts in order of time, whether they are or are not barred by the law of limitation. In this case, the debtor did not intimate the petitioner to appropriate the payment towards any particular debt, nor did the creditor apply it towards any debt(s). In this situation, the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is within limitation. Therefore, I am of the opinion that the petition is barred regarding the amount claimed except the amount of Rs. 13,260. Issue No. 2: The petitioner was given sanction to institute the present proceedings under section 512 of the Companies Act in C. P. No. 13 of 1981, by this court, vide its order dated February 12, 1981, exhibit P-217. Consequently, I decide the issue in favour of the petitioner. Issue No. 3 : The matter regarding this issue has been dealt with to some extent under issue No. 1. In the accounts filed by the petitioner, respondent No. 1 has disputed three amounts, first, the amount of Rs. 11,410 debited on March 3, 1975, second the amount of Rs. 78,000 debited on May 30, 1976, and third the amount of Rs. 1,27,227-16 debited on March 13, 1978. The first two amounts have been dealt with by me under Issue No. 1. The third amount relates to the unpaid interest for the year 1977-78. In the pronotes, respondent No. 1 agreed to pay interest at the rates from 12 per cent, to 18 per cent. The account regarding payments of interest has been kept separately by the petitioner. Copies have been produced on the record which are exhibits P-215 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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