9911796707
TMI Blog2003 (10) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... rector, Dhadhania 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 the debt has been paid by the Company. In response to the notice, an application was filed on 10-4-2000 by Shri R.P. Agarwal, Advocate on 11-9-2002, on behalf of Narendra Kumar Jha, Chief Manager (Legal) of the Company. The applicant Company filed an amendment application dated 2-5-2001 to amend the Company petition. These amendments were allowed on 30-7-2001. 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 13-12-2001. In respect of the third objection, the order dated 13-12-2001 recorded a statement of Shri R.P. Agarwal that after the amendment of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount and the entries were recorded on 31-3-1997 annexed as Annexure-SA-2 to the affidavit. On 2-10-1997 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 14-5-1997, 28-9-1997, 13-12-1997 and 14-10-1998. 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 14-12-1994 and 15-3-1995 is admitted, however, the letter dated 4-2-1994 is denied as false and fabricated. The Company has also denied the letters dated 22-3-1995 and 18-4-1995 and the confirmation of balance of loan on 31-3-1997. It is stated on behalf of the Company that the confirmation of balance has not been signed by any authorised person of Company and that these documents were forged and manipulated with a view to get over the limitation. Shri Ajay Khaitan during his tenure a Managing Director, Sri S.N. Mukherjee, Executive Director (Finance) and Sri S.R. Ramesh, AVP (Finance) were authorised signatories. It is admitted by the respondents that the cheque dated 15-3-1995 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 29-9-1997, 13-12-1997 and 14-10-1998. 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. Jhan it is stated that there is no legally enforceable debt is due against 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 28-10-1993 is admitted. The interest payment made on 7-2-1994 and 14-12-1994, issuance of cheques of Rs. 25 lakhs and Rs. 1,44,375 and dishonour of cheque has not been disputed. The letter dated 18-4-1995 is also admitted. However, the letter dated 22-3-1995 is not admitted. It has been stated in the supplementary counter-affidavit that the confirmation of letter dated 22-3-1995 is incorrect as the signatures of Sri S. R. Ramesh have been forged. The Company has denied confirmation balance of loan dated 7-2-1995, 31-3-1996 and 31-3-1997. The rest of averments are same as in the supplementary counter-affidavit of Company Petition No. 77 of 1999. The TDS deposit on 4-10-1997 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time-barred. In the present case the company petitions were filed on 27-8-1999. The confirmation of loan dated 31-3-1997 has been filed on record and the company has admitted the deposit of T.D.S. on 2-10-1997 by challan drawn in Punjab National Bank. These challans in prescribed forms signed by authorised signatory of the company, are certificates of deduction of tax on interest at source under section 306 of the Income-tax Act, 1966, for the period 1-4-1995 to 31-3-1996. The deposit of this interest is a proof of the fact that the loan is acknowledged in the records of the company and is admitted to the company. With the admission of these documents which is within the period of three years of filing the company petition, the recovery of loan can be said to be barred by law on limitation. 11. The remedy of recovery of money through civil suit, is distinct from winding up of company for non-payment of debt under section 434 of the Companies Act. Winding up order is not only beneficial to applicant-company but to all shareholders. The purpose of filing suit for recovery and winding up petition are distinct, and thus even where a civil suit is filed, there is no bar for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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