9911796707
TMI Blog2007 (1) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The respondent was placing orders for purchase of various chemicals as per respondent s requirement and purchasing goods under the name and style of Cosco Sales and Services (P.) Ltd. The respondent company has its principal business at 301, AVG Bhawan, M-3, Connaught Circus, Middle Circle, New Delhi. The name of the respondent company, according to the petitioner, was changed to Cosco Sales and Services Ltd. in 1993-94. 5. The goods were sold and delivered to the respondent by the petitioner company. The petitioner company had opened a running account in the name of respondent company in its books of account and the price of goods sold and delivered to the respondent used to be debited and the amounts paid by the respondent company used to be credited. At the end of financial years, accounts used to be taken. As on 19-5-1997, an acknowledgement for the liability of Rs. 2,18,93,858 was made by the respondent company to the petitioner. 6. The letter dated 19-5-1997 by the respondent reads that, as per the statement of account of the respondent as on 31-3-1997, a sum of Rs. 1,43,93,858 was payable from the respondent to the petitioner. According to the books of account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent to the petitioner company. 12. I have heard the learned counsel for the petitioner. Mr. Nitin Aggarwal had appeared on behalf of respondent and had sought a pass over; however, no one appeared after pass over on behalf of respondent. 13. The first objection of the respondent is that the statutory notice dated 2-9-2002 was not served at the registered office of the respondent company. Perusal of the record reveals that the statutory notice was sent to the registered office by speed post, acknowledgement card was returned with the endorsement of refusal. Nothing has been produced by the respondent to rebut the report of refusal. The address of the respondent company on the registered article is the address of the registered office of the respondent. In the circumstances, the plea of the respondent that the notice was not sent at the registered office of the respondent is not correct. The notices were also sent to the managing director and Shri Suresh Goyal as well as to two other directors, namely, Aditya Goyal and Shri Gautam Goyal. The petitioners have produced the registered AD card with the endorsement of receipt of the notice on behalf of respondent s directors. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting an amount of Rs. 1,43,93,858 due from the respondent company to the petitioner company. There has been a further acknowledgement of the liability of approximately Rs. 1.25 crores by the director of the respondent company in the minutes of meeting dated 9-10-1998 which will give a fresh period of limitation from the said date. There is yet another acknowledgement of the respondent company by letter dated 22-3-2000. The petitioner and the respondent had a running account and from November 1998 to 21-3-2000, the respondent further received supplies of net value of Rs. 1,32,92,800 against which a payment of Rs. 1,65,81,163 was received. It was admitted by the respondent that an additional payment of Rs. 32,88,363 has been made from November 1998 to 21-3-2000. Consequently, this cannot be refuted by the respondent that the part payments have been made by the respondent company from November, 1998 to 21-3-2000. Such part payments made on account of the amounts due and the payment towards subsequent delivery of goods will also extend the period of limitation from the time when the last time the payment was made. The extension of period of limitation cannot be negated by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied in a given case to ascertain as to whether writing constitutes an acknowledgement or not : ( a )Acknowledgement means an admission by the writer that there is a debt owed by him either to the receiver of the letter or to some other person on whose behalf it is received. It is not enough he refers to a debt as being due from somebody. He must admit that he owes the debt. ( b )The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature of the specific character of the said liability may not be indicated in words. ( c )Words used in the acknowledgement indicate the circumstances of jural relationship between the parties such as that of debtor and creditors. ( d )It must appear that statement is made with the intention to admit such jural relationship. ( e )Such intention can be implied and need not be expressed in words. In construing the words used in the statement, surrounding circumstances can be considered although oral evidence is excluded. ( f )Although liberal construction is to be given to such statement but where a statement was made without intending to admit the existence of jural rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid to the petitioner. 22. For a winding up petition under section 433( e ), there must be a debt due and the company must be unable to pay the same and that due must be determined or definite sum of money should be payable immediately or at a future date. From the facts stated hereinabove, it is apparent that the respondent company has acknowledged the amount due to the petitioner company and have failed to show that the said amount has been paid despite various opportunities granted to the respondent company to file an affidavit and the documents to show that the payment was made and no amount is due to the petitioner. The disputes raised by the respondent company are not bona fide nor can the defence be considered to be substantial. The defence which has been raised by the respondent company is not likely to succeed on any point of law. In the totality of facts and circumstances, it cannot be held that the defence has been raised by the respondent company in good faith and that the defence is likely to succeed in the point of law. The respondent company has even failed to adduce prima facie proof of the facts on which their defence depends. In the circumstances, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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