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TMI Blog2010 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit of the amount. In our opinion, also considering the fact that till today the original petitioner has not filed a civil suit for recovery of the amount, which according to the original petitioner was due to him, the appropriate order would be to set aside the order passed by the learned single judge.Therefore, the appeal is allowed. The order passed by the learned single judge impugned in the appeal is set aside - 319 OF 2006 - - - Dated:- 21-6-2010 - D.K. DESHMUKH AND R.P. SONDURBALDOTA, JJ. Dr. B.P. Saraf, Nikhil Rajani and V. Deshpande for the Appellant. S.C. Naidu, Y.C. Naidu and C.R. Naidu for the Respondent. JUDGMENT 1. By this appeal the appellant challenges the order dated March 2, 2006, passed by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt. The learned judge, therefore, held that debt for which the statutory notice was issued and the company petition filed was not the debt barred by the law of limitation. However, surprisingly the learned single judge made a direction in the company petition for payment of Rs. 9,00,000 within twelve weeks to the petitioner by the respondent-company. Failure to make the payment was to result in admission of the petition. It is this order which is challenged in the appeal. 4. We have heard learned counsel for both sides. In our opinion, even accepting the finding recorded by the learned single judge that in the reply to the statutory notice there is an implied promise made to pay the debt, which was barred by limitation, still in our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Shah Bhimji and Co. [1969] Mah. LJ 698. 16. Learned counsel appearing for defendant No. 1 has, however, relied upon the decision of the Division Bench of this Court in the case of Maganlal Harjibhai v. Aminchand Gulabji, AIR 1928 Bom 319, and in the case of Balkrishna Mansukhram v. Jayshankar Narayan, AIR 1938 Bom 460. Besides the judgment of the Division Bench Maganlal Harjibhai v. Aminchand Gulabji, AIR 1928 Bom 319, he has also relied upon the judgment of the erstwhile Lahore High Court in the case of Basheshar Nath Goela v. Baji Nath, AIR 1938 Lahore 264, and the judgment of the Full Bench of the Kerala High Court in the case of Chacko Varkey v. Thommen Thomas, AIR 1958 Ker 31. The judgments of the Division Bench of this court cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The most that could have been done by the learned single judge was to issue a direction for deposit of the amount. In our opinion, also considering the fact that till today the original petitioner has not filed a civil suit for recovery of the amount, which according to the original petitioner was due to him, the appropriate order would be to set aside the order passed by the learned single judge. 6. In our opinion, therefore, the following order would meet the ends of justice. ORDER (i)The appeal is allowed. The order passed by the learned single judge impugned in the appeal is set aside. Company Petition No. 570 of 2005 is rejected. (ii)Any amount that may have been deposited by the appellant pursuant to interim order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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