9911796707
TMI Blog2003 (10) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... davit of Sri Sushil Kumar Dhandhania, Chairman- cum -Director, Dhandhania Brothers (P.) Ltd., 4, Middleton Street, Calcutta, was filed, deposing that statutory notice under section 434 of the Companies Act was sent by registered post to the company at its registered office. It was received by the company, but no reply was received nor has the debt been paid by the company. In response to the notice, an application was filed on April 10, 2000, by Sri R.P. Agarwal, advocate, on September 11, 2002, on behalf of Narendra Kumar Jha, Chief Manager (Legal) of the company. The applicant-company filed an amendment application dated May 2, 2001, to amend the company petition. These amendments were allowed on July 30, 2001. Preliminary objections were raised in the counter-affidavit of Sri Narendra Kumar Jha to the effect that the company petition was not supported by a proper affidavit and has not been filed by a competent person. A third objection was taken to the effect that the loan in respect of which petition is filed is time-barred. The first and second preliminary objections were decided and overruled by order dated December 13, 2001. In respect of the third objection, the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmation letter enclosed as annexure SA-1 to the petition. Cheques dated April 20, 1996, and April 30, 1996, were issued towards the payment of interest and capital amount and the entries were recorded on March 31, 1997, annexed as annexure SA-2 to the affidavit. On October 2, 1997, by challan No. 2, drawn on Punjab National Bank, the company deposited Rs. 91,096 towards T.D.S. in the Income-tax Department. The debt was acknowledged, vide letters dated May 14, 1997, September 28, 1997, December 13, 1997, and October 14, 1998. 5. In the supplementary counter-affidavit, it is stated in para 4, that the claim of the petitioner has become time-barred when the petition was filed. Issuance of cheques dated December 14, 1994, and March 15, 1995, is admitted, however, the letter dated February 4, 1994, is denied as false and fabricated. The company has also denied the letters dated March 22, 1995, and April, 18, 1995, and the confirmation of balance of loan on March 31, 1997. It is stated on behalf of the company that the confirmation of balance has not been signed by any authorised person of the company and that these documents were forged and manipulated with a view to get over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al amount and that is entered in the confirmation letter dated March 31, 1997. The document is annexed as annexure SA-2 to the affidavit. On October 2, 1997, by challan No. 2 drawn on the Punjab National Bank the company deposited Rs. 91,096 towards TDS in the Income-tax Department. The challan Form No. 16A, dated October 2, 1997, has been filed on record. The debtor company acknowledged debts by letters dated May 14, 1997, September 29, 1997, December 13, 1997, and October 14, 1998. A notice of demand was sent by the applicant-company by registered post which was received by the company but the amount has not been paid. 7. In the counter-affidavit of Sri N.K. Jha, it is stated that there is no legally enforceable debt is due against the petitioner and that the alleged debt is time-barred. The notice was received at the registered office. In the supplementary counter-affidavit filed to the amended writ petition the receipt of loan of Rs. 25 lakhs on October 28, 1993, is admitted. The interest payment made on February 7, 1994, and December 14, 1994, issuance of cheque of Rs. 25 lakhs and Rs. 1,44,375 and dishonour of cheque has not been disputed. The letter dated April 18, 1995, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the order dated December 13, 2001. The company has neither tried to dispute this statement, or to clarify, or explain the same. 10. Sri B.D. Madhyan, learned counsel for the applicant-company, has relied upon the decision of the Karnataka High Court in State Bank of India v. Hegde and Golay Ltd. [1987] 62 Comp. Cas. 239 and a decision of the Delhi High Court in Rishi Pal Gupta v. S.J. Knitting Finishing Mills (P.) Ltd. [1998] 4 Comp. LJ 519 . In both these decisions it was held that if the debt is acknowledged in the balance-sheet the company petition cannot be treated to be time-barred. In the present case, the company petitions were filed on August 27, 1999. The confirmation of loan dated March 31, 1997, has been filed on record and the company has admitted the deposit of TDS on October 2, 1997, by challan drawn in Punjab National Bank. These challans in prescribed forms signed by the authorised signatory of the company, are certificates of deduction of tax on interest at source under section 206 of the Income-tax Act, 1961, for the period April 1, 1995, to March 31, 1996. The deposit of this interest is a proof of the fact that the loan is acknowledged in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
