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TMI Blog2012 (6) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2007 - Winding up petition is dismissed with liberty to petitioner to file appropriate recovery proceedings - Co. Petition No. 435 of 2009 - - - Dated:- 30-3-2012 - Manmohan, J. Shivpati B. Pandey for the Petitioner. Ms. Maneesha Dhir, Hemant Sharma and Ms. Mitu Jain for the Respondent. JUDGMENT 1. Present winding up petition has been filed under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 stating that the respondent-company is unable to pay its debt allegedly amounting to Rs. 9,10,000/- as well as interest @ 24% per annum from the date when the said amounts were advanced to the respondent-company. 2. The facts as stated in the petition are that the petitioner had advanced a loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Smt. Saroj Omprakash Gupta, of Mumbai, (MH). The Above Said Loan is Outstanding in our books as on 31.03.2007. So kindly bear with us. Yours Faithfully, For M/S. Kunal Pipes (India) Pvt. Ltd. Mahavir Prasad Aggarwal Director Date: 15.04.2007 Place: Durg" 4. Mr. Pandey pointed out that in the auditor's report for the financial year 2003-2004, the petitioner's debt had been admitted. In this connection, he referred to page 201 of the paper book. 5. Mr. Pandey stated that under a Memorandum of Agreement (for short 'Agreement') dated 5th September, 2007, Mr. Sushil Kumar Tulsian and Mr. Manish Tulsian purchased majority shareholding of the respondent-company. He submitted that by virtue of the said Agreement, the new p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 correctly reflected the accounts of the respondent-company and there were no other assets and liabilities of the respondent-company. Ms. Dhir referred to the balance sheet for the year ending 31st March, 2007 at page 158 of the paper book to show that it did not disclose the name of the petitioner as one of the creditors of the respondent-company. In fact, she pointed out that in the said balance sheet dated 31st March, 2007 under the heading of unsecured loans, no amount was mentioned as due and payable. Thus, according to her, the plea that the alleged loan confirmation letter dated 15th April, 2007 had been contemporaneously given by the previous director of the respondent-company, was not correct. 7. Ms. Dhir further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporation that the letter of the petitioners 1 and 3 dated 18-10-1988 constitutes an acknowledgment of debt. In terms of Section 18 of the Limitation Act an acknowledgment of liability needs to be made before the expiration of the period prescribed. Only thus shall a fresh period of limitation commence from the time the acknowledgment is so signed. As the letter dated 18-10-1988 is itself beyond the period of limitation, the provisions of Section 18 of the Limitation Act would have no application and the letter cannot constitute as an acknowledgment of the debt, in terms thereof. ** ** ** 16. In view of the decision above with which I am in respectful agreement, in view of the clear provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 500 on account of the debt. This is a contract." 11. Mr. Pandey also relied upon a judgment in Jai Enterprises v. Omega Cables Ltd., [2009] 91 SCL 54 (Mad.). In the said judgment, a Division Bench of Madras High Court has held as under:- "10 the court is of the considered opinion that when the defence plea that was stated in the course of the counter was that it was time-barred, it has got to be looked into and decided only on appreciation of evidence and not otherwise. At this juncture, it is pertinent to point out that the learned single judge, at the end of the order, recorded the finding that the claim was time-barred. Now, the grievance was that that finding has got to be removed from the order. Accordingly, that findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ham inasmuch as the respondent-company has relied upon the balance sheet dated 31st March, 2007. Consequently, genuineness of the loan confirmation letter can only be decided after both the parties have been given an opportunity to lead evidence. Moreover, the balance sheets of the respondent company during the period 1998 to 2006 would also have to be examined by the Court. 16. Accordingly, the present petition is dismissed with liberty to petitioner to file appropriate recovery proceedings in accordance with law. The petitioner would also be at liberty to file an application under Section 14 of the Act, 1963 seeking exclusion of time spent in prosecuting the present proceedings while calculating the period of limitation for the said r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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