9911796707
TMI Blog2001 (11) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... or the default of payment in hardware and allied goods, the petitioning creditor filed a suit against the said company being Money Suit No. 13 of 1994 in the Court of Assistant District Judge, Golaghat (Assam) for the recovery of the prices of goods sold and delivered. On 10-2-1997, the said Money Suit No. 13 of 1994 was decreed by the Assistant District Judge, Golaghat (Assam), against the company for an amount of Rs. 76,653 with costs pendente lite and future interest at the rate of 18 per cent per annum and also for Rs. 6,881.90 as the costs of the suit. According to the calculation given by the petitioning-creditor in para 8, a sum of Rs. 1,77,218.90 is still due and payable by the company to the petitioning creditor. The case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted time lag. 3. The learned counsel for the company highlighted the fact here that cause of action admittedly arose out of the alleged supply of goods and admittedly goods were last supplied on 13-4-1992, and the instant winding-up petition has been filed before this Court on 30-3-2001. The learned counsel submitted that if it is assumed that the cause of action of the petitioning creditor has merged with the decree, the said decree is dated 10-2-1997. Even then this instant winding-up petition is barred by limitation. In support of the said contention, the learned counsel initially relied on two decisions. The learned counsel relied first on the decision reported in the case of Mazboot Packers Engineers Co. v. Himachal Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat point of time. The learned judge held that if this principle is applied, the debt is time-barred and as such is not recoverable on the basis of winding-up petition. In that case the loan was advanced to the company in 1987 and the winding-up proceeding was instituted in the year 1995. There is another judgment on this point also which was rendered in the case of Vijayalakshmi Art Productions v. Vijaya Productions (P.) Ltd. [1997] 88 Comp. Cas. 353 (Mad.). In that case it has been held by the learned Judge that it is the duty of the Court to dismiss claims made beyond the prescribed period of limitation as provided in section 3 of the Limitation Act. 5. The learned counsel for the respondent has, however, relied on certain deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly filed after four years from the date of obtaining the decree. 6. The next case on which reliance was placed by the learned counsel was in the case of Unique Cardboard Box Mfg. Co. (P.) Ltd., In re [1978] 48 Comp. Cas. 599 (Cal.). In that case it was held that a winding-up petition is an equitable mode of execution in respect of the claim of a creditor of a company. There can be no dispute with the aforesaid proposition but the question with which the Court is concerned here, namely, the question of limitation, was not present in that case. From the facts of that case, it appears that the petitioning creditor obtained an ex parte decree on 5-1-1973, and then by notice dated 26-5-1973, under section 434 of the Act, the petitioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his company petition has been presented in 2001 in respect of decree which was passed in 1997. 9. The learned counsel for the respondent also relied on a decision in the case of Seethai Mills Ltd. v. N. Perumalsamy [1980] 50 Comp. Cas. 422 (Mad.). In that case it was held by the learned judges of the Madras High Court that a creditor who has obtained a decree against a company is not compelled to confine his remedy against the company under section 434(1)( b ) alone but he may also take resort to the provision of section 434(1)( a ) as well. The learned judges have also held that there is no dichotomy between the two sub-clauses. The learned judges further held that the fact that the original debt had merged in the decree and the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, speaking for the Special Bench, held that in article 181 the Legislature makes provisions not for any definite type of cases but for an unknown number of cases of all kinds. The provision makes it specific as regard the period of limitation, but as regards the terminus a quo it is content to state in general language and quite simply the fundamental principle that, for the purposes of any particular application, time is to run from the moment at which the applicant first had the right to make it. 12. This Court goes by the same principle and holds that the period of limitation should be counted from 1992. But assuming it is not counted from 1992, it has to be counted from 1997. Therefore, considering the matter from all possible ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
