9911796707
TMI Blog2007 (7) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of any form. The company has not relied on any automatic forfeiture by law. It may as well have suggested that it chose not to pay because the sun shone outside. The company’s ground that the petitioner lacks of bona fides is without basis. It is the petitioner which gave the money to the company. Such fact remain undisputed. Who is in control of the petitioner or who is in control of the company is irrelevant once the petitioner is established as the creditor and the company the debtor.The company’s defence is completely without basis. - C.A. NO. 472 OF 2006 AND C.P. NO. 285 OF 2006 - - - Dated:- 16-7-2007 - SANJIB BANERJEE, J. Pratap Chatterjee, Debangshu Basak and D.N. Sharma for the Petitioner. Ranjan Bachawat and Debnath Ghosh for the Respondent. JUDGMENT Sanjib Banerjee J. The company resists the creditor s petition for having it wound up on the twin grounds of lack of bona fide s on the petitioner s part and the claim being barred by the laws of limitation. 2. The company accepts having received the payment from the petitioner though the parties are at variance as to the purpose of payment, a matter more of form than of substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by us to you." 4. According to the company, it is now controlled by one Vinod Kumar Jain. The company claims that Vinod Jain was the principal person in control of the petitioner-company and entitled, by virtue of his shareholding therein, to retain control of the petitioner. The company asserts that Pawan, a brother of Vinod, had usurped control of the petitioner and had made the demand on the petitioner's behalf. Vinod s right to control the petitioner has been asserted in the suit filed before this court and referred to in the company s response to the statutory notice. The underlying insinuation of the company s charge is that it is Vinod s money from one company parked in another Vinod company, that Pawan is now attempting to collect upon removing Vinod from the petitioner-company. 5. The company submits that till such time that the disputes as to the control of the petitioner are resolved, these proceedings cannot be taken forward as it would be inequitable for the company being required to pay the petitioner for Pawan to effectively receive the money. The company urges that in the event Vinod succeeds in the suit filed against Pawan before this court and gets his rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th section 19(1) of the 1908 Act, provides as follows : "18. Effect of acknowledgment in writing. (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation. For the purposes of this section, ( a )an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. It was further held an admission of indebtedness in a balance-sheet was a sufficient acknowledgment under section 19 of the limitation Act of 1908. In this case it appears that at page 12 of the balance-sheet for the year ending December 31, 1968, the entry against the claim of the petitioning creditor appears as follows, as it is shown as the liabilities of the company : "Raghunath and Son P Ltd. (partly secured by deposit of the company's own debentures as per contra) (unconfirmed). Rs. 1,49,110 It would be noted that against the said entry there is a statement unconfirmed . It appears that similar entry was there in the case of Darjeeling Commercial Co. Ltd. v. Pandam Tea Co. Ltd. [1983] 54 Comp. Cas. 814 (Cal), which was the subject-matter of the judgment delivered by Ghose J., referred to hereinbefore. This aspect of the matter had also been considered and it was held by the learned judge that this made no difference in making the acknowledgment. But apart from the said statement the director s report in this case contained the following statement : Your directors are of the opinion that the liabilities shown in Schedules "A" and "B" of the balance-sheet exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mortgage rights therein postulates that there is a subsisting mortgage, that his interest in the property is as a mortgagee and he acknowledges by such a statement his liability to being redeemed by the mortgagor subject of course to the mortgagor paying the mortgage debt. This contention was seriously contested by Mr. Menon who argued that a statement as to jural relationship would at best be a mere description of the rights dealt with by such a party and that a statement to fall within section 19 has to be a conscious and deliberate admission of the right of the mortgagor or his successor-in-title to redeem and the corresponding liability of the maker of the statement to be redeemed. It is such a statement only which gives a fresh period of limitation. (5) Before we proceed to consider these contentions we may mention that none of the statements relied on by the appellants expressly admitted the appellants right to redeem or the liability of the respondents and their predecessors-in-title to be redeemed. What these statements did was only to mention without anything more the fact of jural relationship of mortgagor and mortgagee. But Mr. Mishra s contention was that a mere a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an involved or a far-fetched process of reasoning." 11. The petitioner submits that, the company's argument is based without regard to the Explanation found in section 18 of the Limitation Act. Merely because a debtor refuses to pay or counter-claims, would not rob the document of its value. If a debtor acknowledged receiving payment but chose to amuse itself by denying liability, the document would still be one that would keep the claim alive within the meaning of section 18 of the Limitation Act. The company claims that the document cannot be said to be an admission of liability nor was it intended so to be. The document merely recorded that the payment as claimed by the petitioner had been made, though not on account of any loan. By such document, the company had repelled the petitioner s contention that there was liability on its part. It is urged that mere acceptance of the petitioner having paid money would not elevate such document to the status of one recognised under section 18 of the Act, if the admission of receipt of money was coupled with a denial of liability. 12. The company s response has to be looked into for two purposes. First, it is to be seen whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vendors and the appellants or to admit any subsisting right of the mortgagors or their successors-in-title. 16. In the present case, the company acknowledged receiving the payment but claimed, without any reason in support thereof, that the money stood forfeited in the company s hands. No attempt has been made to justify such forfeiture or to rely on any notice that is ordinarily required to be issued prior to forfeiture of any form. The company has not relied on any automatic forfeiture by law. It may as well have suggested that it chose not to pay because the sun shone outside. 17. The company s ground that the petitioner lacks of bona fide s is without basis. It is the petitioner which gave the money to the company. Such fact remain undisputed. Who is in control of the petitioner or who is in control of the company is irrelevant once the petitioner is established as the creditor and the company the debtor. 18. Counsel for the company offers, without prejudice to the arguments that the petition could not be admitted, that the order of injunction in respect of the Camac Street property passed in C.A. No. 472 of 2006 may be continued if this court was of the view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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