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TMI Blog2014 (2) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... Drives and MS Control Panels containing the similar terms and conditions. Subsequently, another purchase order dated 22.04.2008 was issued by the Company for supply of Thyristor Convertor. According to the petitioner, the supplies were made in terms of the said purchase orders and the tax invoices are raised from time to time. The last tax invoice submitted by the petitioning creditor against the aforesaid three purchase orders was on 16.07.2008. The Company paid in part from time to time and subsequently raises an objection against the successful commissioning of the said automation system. An agreement dated 28th October 2009 was entered into between the petitioning creditor and the company to resolve the objections raised by the company. Under the said agreement, the company agreed to release a sum of Rs. 29 lakhs being the balance outstanding dues towards the supply of goods in terms of the aforesaid three purchase orders and Rs. 8.5 lakhs to be paid upon successful commissioning and the plant achieving the agreed speed within the period of 30 days. It would further gather from the said agreement dated 28th October, 2009 that the Company was entitled to withhold or nullify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limitation would reckon from the date of the issuance of the 'C' Form. The learned Advocate appearing for the Company refutes the aforesaid contention of the petitioning creditor in submitting that the submission of 'C' Form can never be treated as an acknowledgment of the liability to pay but at best be taken as the acknowledgment of the transaction. It is further submitted that the 'C' Form are issued in discharge of the statutory obligation to enable the seller to avail the reduce rate of Central Sales Tax which is not relatable to liability to pay the price indicated in the tax invoices which the 'C' Form was issued. In support of the aforesaid contention, reliance is placed upon a judgment of the Delhi High Court in case of Alliance Paints & Varnish Works Pvt. Ltd. -vs- Harikishan Gupta reported in 168 (2010) DLT 591, a Bombay High Court judgment in case of Re-Union Electrical Mfrs. (p.) Ltd. reported in (2006) 70 SCL 52 (Bom) and unreported judgment in case of Lamicoat Int. P. Ltd -vs- M/s Galore Prints Industries Ltd., (Company Petition 331 of 2009 and Company Application 950 of 2009 decided on 23.08.2012) and Taipack Ltd & Ors. -vs- Ram Kishore Nagar Mal reported in 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and creditor in regard to the debt in question- in our view, the answer cannot but be in the affirmative. As such, the plea of limitation in the contextual facts, on the basis of the law laid down by the Supreme Court, as noted above, cannot be sustained." The Division Bench relied upon a judgment of the Supreme Court in case of S.F. Mazda -vs- Durga Prosad reported in AIR 1961 SC 1236 wherein it is held that the plea of acknowledgment must relate to a present subsisting liability and there must be a sufficient indication of the existence of a jural relationship that of a debtor and creditor. The Apex Court did not have any occasion to deal an issue as to whether the submission of Sales Tax Declaration Form would imply the acknowledgment of the liability and establishment of the jural relationship as of debtor and creditor. The Bombay High Court in case of Re-union Electrical Manufacture Pvt. Ltd. (supra) was dealing an identical issue as to whether the Sales Tax Declaration Form, if issued, expressly or by implication acknowledges the liability and indicates the existence of the jural relationship in the above perspective, it is held: "11. The form prescribed under Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in respect of which Form "C" is issued. Thus, it is not possible to infer that the execution and issuance of Form "C" by a purchaser impliedly reflects on the question of payment by the purchaser to the seller in respect of the transactions referred to therein. 16. Form "C" does not contain expressly or even by implication, the acknowledgment of liability in praesenti in respect of the transactions referred to therein. The execution and issuance of Form "C" does not, to use the words in Shapoor Freedom Mazda Case (supra) relate to a present subsisting liability. Nor does the execution and issuance of Form "C" indicate that the statements therein were made with an intention to admit a subsisting liability. In other words, though, a Form "C" certainly indicates the existence of jural relationship at some point of time, of seller and purchaser, it does not acknowledge the existence, in praesenti of a debtorcreditor relationship or the existence of a liability on the date of the making/execution of the Form "C". The similar view was expressed by the Delhi High Court in case of Taipack Ltd. (supra) upon relying a judgment of the Apex Court rendered in case of Valliamma Champaka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Firstly, to be subrogated to the rights of the mortgagee discharged, vis-a-vis the non-redeeming co-mortgagor, including the right to get into possession of the latter's portion of share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca which belonged not to him but to the other co-mortgagor. It follows that where one comortgagor gets the right to contribution against the other comortgagor by paying off the entire mortgage debt, a corelated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the "nonredeeming" co-mortgagor, to pay his share of the liability and get possession of his property from the redeeming co-mortgagor, subsists as long as the latter's right to contribution subsists. This right of the "non-redeeming" co-mortgagor, as rightly pointed out by the learned Chief Justice of the High Court in his leading judgment, is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor has as. against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yments were effected thereafter, or any amount remains due or outstanding cannot be inferred from the said "C" Form in the facts and circumstances of this case. Secondly, no intention to acknowledge a liability can be inferred from the contents of the said "C" form. Thirdly, one cannot establish a jural relation of debtor and creditor from the contents of the said "C" form. Thus, the essential requirements for a writing to constitute acknowledgment are missing from the document. (also see Hansa Industries (P) Ltd. v. MMTC Ltd. 2004 VI AD (Delhi) 222)." In a recent judgment rendered by the Delhi High Court in case of Lamicoat International Pvt. Ltd. (supra) held that Sales Tax Declaration Form can at best be treated as the acknowledgment of the goods' receipt and the price but does not establishes the jural relationship of a debtor and creditor in following words: "6. In another judgment of a co-ordinate Bench of this Court reported as MANU/DE/0465/2010: 168 (2010) DLT 591 titled as Alliance Paints and Varinsh Works Pvt. Ltd. vs. Harikishan Gupta (deceased) through LRs. , a question arose whether Central Sales Tax Form i.e. the "C" form could have been treated as an acknowledgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration Form does not indicate the acknowledgment of the liability as well as the admission of the existence of a jural relationship. There is no express intention of the Company to acknowledge the liability in a letter containing the Declaration Form. Therefore, the issuance of the Sales Tax Declaration Form does not constitute the acknowledgment of the subsisting liability and/or establishes the jural relationship of a debtor and a creditor. The present matter can be viewed from another angle as well. The petitioning creditor have grossly suppressed the fact that subsequently an agreement was entered into between the parties whereunder it was agreed that a sum of Rs.29 lakhs, if paid by the Company, would satisfy the outstanding dues. Admittedly, the said sum of Rs.29 lakhs had been paid by the Company. A further sum of Rs. 8.5 lakhs was withheld in terms of the said agreement and whether the same was withheld illegally is a matter of evidence which cannot be gone into in a proceeding for winding up. This Court, therefore, does not find that the Company should be wound up and, therefore, orders that the Company Petition shall remain permanently stayed. However, there shall be n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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