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TMI Blog2010 (4) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... n made in July, 2007 in the statutory notice issued in January, 2009. The statement of accounts appended to the petition at pages 18 to 20 also does not reveal that any payment had been made by the company to the petitioner during the financial year 2007-08. For a petitioning creditor to approach this equitable jurisdiction, the person must come with clean hands and utmost candour. Irrespective of whether the petitioner can avail of section 15(2) of the Limitation Act, which appears to be inapplicable to the present case, since it is evident that the relevant averment by the petitioner at paragraph 12 of the petition is contrary to the statements in the statutory notice where the petitioner had categorically stated that the last payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner. 5. Annexure F to the petition is a statement of accounts. In the accounts there is no payment shown during the year April 1, 2007 to March 31, 2008. As may be remembered, the statutory notice had asserted that the last payment that had been made by the company was on June 19, 2006. Yet at paragraph 12 of the petition the company has alleged that the last payment that had been made by the petitioner was on July 27, 2007. The company says that a payment of Rs. 13,000 was made since the tax that had earlier been deducted at source by the company had not been deposited with the appropriate authorities by the company. There is no written corroboration of such payment and the company has denied the same. 6. The point taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to a creditor s winding up petition which is certainly not a suit. In any event, section 434 of the Act requires a notice to be given and the presumption of inability to pay under the Companies Act, 1956, would arise upon the expiry of a period of 21 days from the date of receipt of the notice and the company s failure to pay. The failure or negligence on the part of a company to pay has been legally construed to be the failure on the part of the company to pay without just cause. 10. The petitioner here issued the statutory notice on January 29, 2009. The petition was filed on or about July 9, 2009, when the claim could not have been enforced after June 19, 2009. 11. Strictly speaking, the company court may not be used as a debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force the petitioner s claim. Such notice was necessary for the petitioner to take advantage of the legal fiction of the company s inability to pay and did not touch upon the petitioner s right to claim payment. There is no prescribed period of limitation for bringing a creditor s winding up petition. The prayer in such a petition is never for the payment of any money. The company court, if satisfied that there is an enforceable claim to which the company has no defence, allows the company a chance to avoid admission of the petition by making payment of the just dues of the creditor. Legally speaking, it is not a direction for payment but merely a condition set for warding off admission. It is for such reason that section 15(2) of the Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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