9911796707
TMI Blog2002 (10) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of the application till the date of realisation. 2. In the report filed in support of the above application, the official liquidator has stated that M/s. F.D. Stewart Private Limited (hereinafter referred to as "company in liquidation") was ordered to be wound up by an order dated September 7, 1987 in C.P. No. 73 of 1985. The erstwhile managing director of the company has delivered the statement of affairs on March 14, 1988. The applicant has taken into custody certain books and records of the company in liquidation which were handed over to him on January 21, 1988. This application could be preferred only after the receipt of the statement of affairs and books of account and records referred to above. The records revealed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on February 11, 1989. In their letter dated March 29, 1989, it is replied that nothing is due and payable to the company in liquidation. Since the balance amount as per the ledgers and account books has not been paid, the applicant has been compelled to come forward with the present application under section 446(2) of the Companies Act. It is further stated that as per article 137 of the Limitation Act, 1963, read with sections 18/19 of the said Act and section 458A of the Companies Act, the application is well within time and is not barred by limitation. Along with the report the official liquidator has filed statement showing the details of the amount as annexure A to the report. 3. The respondent has filed a written statement wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the respondent has filed a memo on limitation which is as follows : "Winding up petition filed on (C.P. No. 73 of 1985) 26-8-85 Date of order of winding up petition 7-9-87 Application No. 1126 of 1989 filed on 7-11-89 As per statement annexed to O.L. report : (a )Last date of bill 30-8-84 (b )Last date of payment as disclosed 27-3-84 I. Taking the starting point of limitation 30-8-84, the claim should taken three years from 30-8-84. Date of filing of petition 26-8-85 Date of right to sue 30-8-84 (11 months and 27 days on date of filing of petition) 27-11-00 II. Date of filing of C.A. No. 1126 of 1989 7-11-89 Date of filing of company petition 26-8-85 21-02-03 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which the right to apply accrues. In addition to the above period, section 458A of the Companies Act gives not only the exclusion of the entire winding up period, but also gives a further grace period of one year immediately following the date of the winding up order. These aspects have not been disputed. Though it is stated that each bill gives rise to a separate cause of action, after going through the continuous entries namely various dates, bill numbers and the amount due from the ledger entries (annexure A to the report of the official liquidator) and details regarding the payments made by the respondent, I am unable to appreciate the contention that each bill has to be considered separately for the purpose of cause of act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion filed on November 7, 1989, is well within the period of limitation. 10. Mr. T.K. Seshadri, learned counsel for the respondent, after taking me through sections 59, 60 and 61 of the Indian Contract Act, 1872, would contend that in the absence of any specific indication by way of agreement of understanding between the parties, the last bill and the last payment cannot be taken into account. In the light of the said contention, I have carefully perused those provisions and I am unable to accept his contention. Admittedly, there is no instruction or direction that the payment is to be applied to the discharge of some particular debt. In the absence of such direction or material, as stated earlier, there is no reason to either reject the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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