9911796707
TMI Blog2012 (6) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 2. The facts as stated in the petition are that the petitioner had advanced a loan of Rs. 9, 10,000/- to respondent-company vide demand drafts/cheques, details of which are mentioned in para 7 of the petition. The said details are reproduced hereinbelow:- Sl. No. Date Particular Dr. Amount 1. 01/04/1998 DD/Cheque No. 0449409 1,50,000/- 2. 01/04/1998 DD/Cheque No. 105058 1,00,000/- 3. 14/04/1998 DD/Cheque No. 980855 1,35,000/- 4. 30/07/2000 DD/Cheque No. 002836 1,25,000/- 5. 17/08/2000 DD/Cheque No. 473290 1,25,000/- 6. 21/08/2000 DD/Cheque No. 473331 75,000/- 7. 04/11/2000 DD/Cheque No. 268345 1,00,000/- 8. 04/11/2000 Bank not known 1,00,000/- & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as unsecured creditors. In this connection, he relied upon para 12 of the Agreement, which is reproduced hereinbelow:- "12. The Second Party shall pay the entire money by cheque in favour of the shareholders to the extent of the respective shareholding of each shareholder. The price/share will be decided on finalization of Balance sheet as at 31-03-2007. The remaining money shall be brought into the company for clearance of previous liability and dues of bank, financial institution and also for the repayment of entire Share Application Money and Unsecured Loans of the First Party in the company (as mutually agreed upon between both parties) through the company. The total consideration under no circumstances shall exceed Rs. 450.00 Lacs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t winding up petition had been filed on 12th October, 2009. 8. Ms. Dhir further submitted that even if it is accepted that the alleged loan confirmation letter dated 15th April, 2007 constituted an acknowledgement of debt, it would not help the petitioner as the said acknowledgement of liability had not been made before expiration of the limitation period. She stated that to avail the benefit of Section 18 of the Limitation Act, 1963 (for short 'Act, 1963'), petitioner would have to show that a letter constituting an acknowledgement of debt had been issued by the respondent-company during the period of limitation. Section 18(1) of the Act, 1963 reads as under:- "18. Effect of acknowledgment in writing. (1) Where, before the expiration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cannot in law constitute acknowledgment of a debt within the meaning of Section 18 of the Limitation Act." 10. In rejoinder, Mr. Pandey stated that the alleged loan confirmation letter dated 15th April, 2007 constituted a fresh cause of action in accordance with Sub-section 3 of Section 25 of the Indian Contract Act, 1872 (for short 'Act, 1872'). Mr. Pandey relied upon illustration (e) as mentioned in Section 25 of the Act, 1872. Both Sub-section (3) as well as illustration (e) of Section 25 of the Act, 1872 are reproduced hereinbelow:- "25. Agreement without consideration, void, unless, it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.- An agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is open to the appellant to make a claim, as per the law, before the appropriate forum for getting appropriate remedy." 12. Mr. Pandey further stated that Mr. Mahavir Prasad Aggarwal, signatory of the loan confirmation letter dated 15th April, 2007 was an authorised signatory on behalf of the Board of respondent- company at the relevant time and he had been filing pleadings as well as entering into settlements between the respondent-company and various banks at the relevant time. 13. Mr. Pandey lastly submitted that change of management of the respondent-company could not affect rights/claim of the petitioner who was a creditor. 14. Having heard the parties, this Court is of the opinion that the whole case revolves around the interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
