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TMI Blog2014 (3) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... d be governed not by Article 137 but by Article 136, and that provides a period of 12 years from the date when the decree is enforceable. - It is also settled that winding up is an equitable mode of execution. There is no manner of doubt that Atcom is commercially insolvent. Not only must it be deemed to be unable to pay its debts on account of its failure to comply with the demand in the statutory notice, but its reply contains vital admissions of financial inability, commercial insolvency, its lack of income and that it is doing no business. Gati has a valid decree in its favour. Petition admitted - The Official Liquidator is appointed Provisional Liquidator of the respondent company. - Decided in favor of petitioner. - Company Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No appeal was filed. Gati put the decree into execution. It filed a Special Execution Application No.4 of 2007 before the Court of the Civil Judge, Senior Division, Daman. Here, too, a summons was issued to and received by Atcom. 5. At this stage, some five years after the ex-parte decree, Atcom filed a petition before the Chief Judge, City Civil Court, Secunderabad, to set aside the ex-parte decree under Order IX, Rule 13 of the Code of Civil Procedure, 1908. This was accompanied by an application for condonation of the delay of 1902 days. The application was dismissed on 19th October 2010. 6. Gati s advocate, Ms Kapil, then sent a statutory notice under sections 433 and 434 of the Companies Act, 1956 to Atcom at its registered off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ekar v Rajaram Bandekar (Siringaon) Mines Pvt. Ltd., [1997] 88 Comp. Cas 673 (Bom) 8. I am unable to see how Mr. Jumani s reliance on In Re: Steel Equipment and Construction Co. (P.) Ltd; Om Prakash Mohta v Steel Equipment and Construction Co. (P.) Ltd. [1968] 38 Comp Cas 82 (Cal) is of the slightest assistance to him. There, the issue was of competence to contract, and whether a decree that was void or a nullity for that reason could ever be invoked to sustain a winding up petition. Similarly, his proposition that Gati must prove its debt in this court, the decree in its favour notwithstanding, and that this is what the Supreme Court decision in Official Receiver, Kanpur and Anr. v Abdul Shakur and Ors. AIR 1965 SC 920 requires is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is based entirely on the decretal debt, not the underlying cause of action. Limitation would be governed not by Article 137 but by Article 136, and that provides a period of 12 years from the date when the decree is enforceable. Techno Metals India (P) Ltd v Prem Nath Anand, [1973] 43 Comp Cas 556 (Cal) It is also settled that winding up is an equitable mode of execution. Harinagar Sugar Mills Ltd. v M.W. Pradhan, [1966] 36 Comp Cas 426 (SC) : AIR 1966 SC 1707 11. In any event, if 19th October 2010 is taken as the starting point of limitation, being the date on which Atcom s application under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside the ex-parte decree was dismissed, this petition, as Ms. Kapil says, is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution. Upon the advertisements being issued, the balance of this deposit, if any, shall be refunded to the petitioner 14. Given the conduct of the respondent, there will also be an interim order in terms of prayer clause (c). The Official Liquidator is appointed Provisional Liquidator of the respondent company. He shall forthwith proceed to take charge of the assets and properties of the Company. The Official Liquidator shall, on or before 20th June 2014, make a report as to the status regarding taking charge of the company s assets and properties. 15. Further, pending the hearing and final disposal of the petition, the Company, by itself, its directors, officers, servants and agents is restrained from in any manner creating any di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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