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TMI Blog2003 (10) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... bjections. They deny the entries made in the statement of accounts. In fact, they admit the supplies. But they contend that the entire amount due to the petitioner has been paid. In the legal notice issued prior to initiation of the proceedings the interest claimed is only 6%, whereas in the application 12% interest has been claimed which is without any basis. it is also contended that the claim is barred by law of limitation. Subsequently, they have filed additional objection contending that the entire claim is barred by limitation. 3. Applicant has filed affidavit by way of examination-in-chief and he has produced the statement of accounts and invoices on the basis of which the said claim is made. They are marked. Ex. P-1 is the accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of Karnataka Steel Wire Products v. Kohinoor Rolling Shutters Engg. Works ILR 2003 Kar. 177. The learned Counsel for the respondent in support of his contention that it is not a mutual, open and current account with reciprocal demands, relied on three judgments namely, the judgment of the Supreme Court in the case of Hindustan Forest Company v. Lal Chand AIR 1959 SC 1349, the judgment of Madras High Court in the case of Raju v. L. Kumaramuthu AIR 1975 Mad. 1 and the judgment of the Calcutta High Court in the case of Raghunath Shaw v. Kanai Lal Das AIR 1962 Cal. 97 and contend that Article 1 has no application. 7. Therefore, the short question that arises for my consideration is which is the Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the other being merely complete or partial discharges of such obligations." (p. 1949) 10. The Madras High Court in the case of Raju (supra) , has held as under : "The mere striking of the balance after the parties have had a continuous dealing as between themselves cannot prima facie make that account a mutual, open and current account. The account may be open, but unless it is mutual it ceases to be a mutual open and current account. Unless it is established that during the dealings one party has become a creditor to the other and at another time the other party who was a creditor has become a debtor to the other which brings out the essence of mutuality in the accounts, it ceases to be a mutual open and current account." (p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealings between the parties disclose a single contractual relationship, there will be demands only in favour of one of the parties. Where the dealings between the parties disclose two contractual relationship between the parties, there may arise demands in favour of each side against the other. The real test, therefore, to see whether there have been reciprocal demands in any particular case is to see whether there is a dual contractual relationship between the parties. 14. "Dual contractual relationship" means firstly that there should be two sets of independent transactions between the parties in one of which one of the parties should hold the position of debtor and the other that of a creditor and in the other, the reverse position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the matter, Article 1 has no application and therefore 14-2-1976 or 31-2-1976 cannot be taken as the starting point of the limitation. 18. If Article 1 has no application which is the other Article which applies to the application is to be considered. Article 14 on which reliance was placed by the respondents provides for period of limitation for suits for recovery of the price of the goods sold and delivered where no fixed period of credit is agreed upon. In such suits the time begins to run from the date of delivery of the goods and three years is the period prescribed. As the present application cannot be considered as a suit for recovery of the price of the goods sold and delivered, the said Article also has no application. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the company on the date on which the application for winding up is made, could be filed by the official liquidator by taking the benefit of section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under Article 137 of the Limitation Act. The Legislature, by way of an amendment brought into force the provisions of section 458A, so that an official liquidator, who is supposed to be in custody of the assets and liability of the company, would be able to file a claim on behalf of the company, which was legally enforceable on the date of the winding up, after excluding the period, indicating under section 458A of the Companies Act, so that the company or its shareholders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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