9911796707
TMI Blog2010 (7) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... her pleaded by the petitioner that in the suit, the respondent-company was proceeded ex parte though the transporter M/s. East India Transport Agency contested the suit. The operative part of the decree dated 11-3-2005 reads as under :- "This suit coming on this day for final disposal before Sri P.C. Dash, 2nd Addl. Civil Judge (SD) BBSR in the presence of Advocate Sri Indrajit Mohanty and Associates of the plaintiff and Advocate Sri Abhaya Kumar Satapathy and Associates for the defendant, it is ordered that the suit is decreed on contest against defendant No. 2 and ex parte against defendant No. 1 in the circumstances with costs. Defendant No. 1 is directed to pay a sum of Rs. 16,52,957 with pendente lite and future interest at the rate of 20.25 per cent per annum to the plaintiff from the date of filing of the suit along with defendant No. 2 within three months, hence, failing which the plaintiff is at liberty to realize the same through process of Court. Advocate Fee be assessed at the contested scale." 3. It is pointed out that, in fact, on 12-5-1992, the respondent placed an order for supply of 100 MTs of E.C. Grade wire rods. The said communication has been produced as Anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed to open Letter of Credit in future with the undertaking by them that they may retain Rs. 50,000 from each Letter of Credit. 5. The petitioner has averred that it has served a statutory notice on 2-2-2008. The respondent-company sought negotiations which were held but on 18-9-2008, the petitioner received a letter from the respondent-company offering Rs. 4,47,586 as full and final settlement. Since the said amount was not acceptable to the petitioner, the present petition for winding up was filed. It is pleaded that the petitioner has made efforts to ascertain the immovable property of the respondent-company for filing of execution petition. It was found that land measuring 1,075 sq. yards at E-59, Phase VIII, Eltop, SAS Nagar, Mohali, is mortgaged with Punjab Finance Corporation along with machinery and building. The aforesaid property is further mortgaged as 2nd charge to Punjab National Bank against working capital and cash credit facilities availed from the bank. Since the assets were not free from encumbrances, the petitioner could not file execution petition to execute the decree dated 11-3-2005. Therefore, it was pointed out that the respondent-company is unable to pay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -company, a sum of Rs. 4,47,586 is due to the petitioner-company which the respondent is ready and willing to pay provided the petitioner withdraws all the litigation." 7. The respondent-company has attached its balance sheet as on 31-3-2009 to the effect that a sum of Rs. 4,47,586 is the only amount due and payable to the petitioner as per books of account of the respondent-company. No other document has been produced on the record. 8. The petitioner-company filed counter-affidavit dated 19-2-2010 and produced numerous communications from the respondent-company starting from 12-5-1992 till 6-10-1994. In none of the communications, there is any reference to the rejection of the material, return of the material or non-receipt of the material. In none of the communications, the respondent-company has disputed the amount raised or sending of material by the petitioner vide the two invoices mentioned above. It is only in communication Annexure P-5, received by the petitioner on 18-8-2008, consequent to the meeting held by the officers of the company with the General Manager (Marketing) of the petitioner-company, it is pointed out that the material dispatched by the petitioner in two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the documents from the transporter, the petitioner has sought to recover the amount from the respondent-company. The books of account shows liability of Rs. 4,47,586 and the said amount has been paid to the petitioner vide Demand Draft bearing No. 004071, dated 7-7-2010 on 8-7-2010 in the Court and, therefore, it cannot be said that the respondent-company is unable to pay its admitted liability. In fact, the entire amount is disputed. The respondent-company has four plots each measuring 1,000 sq. yards and, therefore, the respondent-company cannot be said to be unable to pay the debt. 11. I have heard learned counsel for the parties but find that the stand of the respondent-company that the petition is barred by limitation or the amount is disputed is not borne out from the record. The petitioner has filed documents with the rejoinder in February, 2010 which shows that from the year of purchase of goods in 1992, the commitment was made to make the outstanding payment. The communications further reflect that the company has communicated financial stringency on account of non- receipt of payments from the Electricity Boards, recession in the market and on account of terrorism, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of clause (a) as, after the decree, neither the character of the creditor nor that of the debt is changed. In the above view, I am fortified by the following observations of a Division Bench of the Madras High Court in Seethai Mills Ltd. v. N. Perumalsamy [1980] 50 Comp. Cas. 422 , 424 : 'A creditor, who has instituted a suit and obtained a decree against the company, will still be a creditor of the company to whom money is due by the company. It may be that the original debt had merged in the decree and the person who was originally a creditor had become a decree-holder afterwards, but that does not in any way destroy his character as a creditor or the character of the money due to him from the company as a debt. As a matter of fact, section 434(1)(a) does not even use the word 'debt' and it merely states to whom the company is indebted in a sum exceeding five hundred rupees then due. Consequently, all that is necessary to be satisfied under section 434(1)(a) is that there must be a creditor and to that creditor the company must be indebted in a sum exceeding Rs. 500 then due and that creditor must have served a notice on the company and the company had not complied with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16. Another argument raised by learned counsel for the petitioner that the petition for winding up is barred by limitation, again does not merit any consideration. Though the learned Single Judge of Calcutta High Court has held that winding up petition in 2001 cannot be filed in respect of a debt which has crystallized in a decree of 1997 but the said judgment referred to by learned counsel for the respondent-company has been overruled by a larger Bench of Calcutta High Court in case in Bangur Foundation Ltd. v. Esjey Corpn. 2004 (1) CHN 621. It was held therein that in a case of debt based upon a money decree, it is not article 137 of the Limitation Act, 1963 which would be applicable but it would be article 136 of the Limitation Act, i.e., period of 12 years. It was held to the following effect :- "23. It is now well-settled that a winding up petition is maintainable in respect of a money decree presented within three years from the date of passing of the decree. Mr. Ghosh's submission that a winding up petition presented on the basis of a money decree after three years from the date of passing of the decree is barred by limitation, having regard to the provisions of article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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