9911796707
TMI Blog2004 (5) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... t-company viz. Prime Investrade Finance Services Limited, having its registered office at Haji Adam Mansion, 2nd floor, 6, Homji Street, Sir P.M. Road, Fort, Mumbai. 2. Basic facts are that the respondent company is a Member of the National Stock Exchange. The petitioner-company had trade transaction with the respondent company. By cheque dated 24th September, 1996, a sum of Rs. 5 lakhs was paid by the petitioner to the respondent company. In respect of the said trade transactions, the petitioner made profit of Rs. 1,02,861 as per the Bills raised by the respondent-company on the petitioner. The trading facilities of the respondent company were terminated by the National Stock Exchange and, therefore, further trade transactions could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to one sole proprietor concern of the deponent i.e., Kamlesh Thakur, a Director of the respondent-company. M/s. Investrade was the sole proprietory concern of the said Mr. Kamlesh Thakur. The said cheque of Rs. 5 lakhs was sent by the petitioner alongwith covering letter dated 24th September, 1996, to the sole proprietor Mr. Kamlesh Thakur of M/s. Investrade. Admittedly, the payment of Rs. 25,000 on 9th September, 1998 and Rs. 75,000 on 17th December, 1999, as relied by the petitioner-company, as payment of the part principal amount, were made by the said M/s. Investrade in full and final settlement of the petitioner-company s claim against the said proprietory firm. The Bank s statements of the said proprietory firm M/s. Investrade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties is that the cheque of Rs. 5 lakhs was dated 26th November, 1996. The alleged last part principal amount was paid admittedly by Kamlesh Thakur on 9th September, 1998 and 17th December, 1998 i.e., Rs. 25,000 and Rs. 75,000 respectively. This Rs. 1 lakh was paid by the said Kamlesh Thakur as a proprietor of M/s. Investrade, as referred above. Accordingly, there are documents on record to support the said case of Kamlesh Thakur. 8. One cannot overlook the fact that, the last payment of 17th December, 1999, which was made by the said Kamlesh Thakur, only brings the claim of the petitioner-company within limitation, if any. The issue of limitation, on the face of the record, needs detail discussion and evidence. Prima facie, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-company under the purview of sections 433 and 434 of the Companies Act, as is sought to be contended. 9. Counsel for the respondent-company relied on Azizur Rahaman Osmani v. Upendra Nath Samanta AIR 1938 Cal. 129 and contended that the payment made by the person, in absence of any evidence to the contrary, is presumed to be in discharge of his own liability. The effect of an acknowledgement in section 19 of the Limitation Act is more restricted and in general, it only affects the person giving it. But, payment made under section 20 affects, not only the person making the payment, but also the persons who are liable. The question, therefore, is under which capacity the particular payment or repayment was made by Mr. Kamlesh Thaku ..... X X X X Extracts X X X X X X X X Extracts X X X X
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