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TMI Blog2018 (1) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 10-1-2018 - MR. JAYANT NATH J. Petitioner Through: Mr. Rajesh Talwar and Mr. Abhay Gupta, Adv. Respondent Through: Mr. Kirti Uppal, Sr. Adv. with Mr. Alishan Naqvee, Ms. Rupal Bhatia and Ms. Sneha Siddharth, Advs. JAYANT NATH, J.(ORAL) 1. The present petition is filed under Sections 433 (e) 434(a) and 439(a) of the Companies Act, 1956 for winding up of the respondent company. 2. Learned counsel for the petitioner has pointed out that a rejoinder has been filed. However, the record of this court shows no rejoinder has been filed. Learned senior counsel for respondent submits that a copy of the rejoinder filed by the petitioner has been received by the respondent. The petitioner has placed on record a copy of the rejoinder. The same is taken on record. Registry may scan the same and place it on record. 3. The case of the petitioner is that sometime in 2001, NTPC was planning to set up power plants in India to further increase their power generation capacity. The respondent company was planning to expand its base in India. The parties accordingly entered into a consultancy agreement dated 20.08.2003 whereby the petitioner company agreed to provide p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner which is now sought to be pressed in this winding up petition in 2016 is barred by limitation. (iv) It is further pleaded that nothing is payable to the petitioner and the dues claimed are disputed. Reliance is placed on the submissions made in the counter affidavit filed by the respondent where a categorical averment has been made that the petitioner have failed to perform their duties in terms of the agreement. Reliance is also placed on communication dated 14.05.2009 sent by the respondent where it is stated that the respondent have denied that any amount is payable. This communication was sent pursuant to a letter dated 01.04.2009 said to have been sent by the petitioner. 6. Learned counsel appearing for the petitioner has vehemently denied the submissions on the issue of limitation. He has relied upon the clause 4 of the agreement between the parties stating that the said clause was quite clear. The balance 50 per cent amount was to be paid on pro-rata against received stage payments. He submits that merely because in some communications or legal notices the interest was sought w.e.f. 2004 or 2005 does not change the date the cause of action would arise. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words barred by law occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and Ors.) decided on 8.11.2005 and it was held: - After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time. This principle would be equally applicable to a Company Petition. Therefore, unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter dated 01.04.2009, the petitioner is again asking for balance 50 per cent dues plus additional amount for other services. Interest has also been sought for the delayed payment. The respondent has categorically denied that the said amount does not match their books of accounts. On a plain reading of the said communication it is manifest that they have disputed the said dues of the petitioner. 14. I may note that it is the stand of the petitioner that they have never received this communication dated 14.05.2009. The dispatch of this communication has been duly stated by the respondent in his counteraffidavit. However, in the rejoinder petitioner have not dealt with the plea of the respondent about non-receipt of this communication. They have hence failed to counter the plea of the respondent disputing its liability made in 2009. Further as the respondent has denied its liability in 2009, the issue of limitation would also arise as this petition is filed in 2016. 15. The Supreme Court in Amalgamated Commercial Traders (P.) Ltd. vs. A.C.K. Krishnaswami, [1965] 35 CompCas 456 (SC) /MANU /SC /0369 /1965 , held as follows: 13. It is well-settled that a winding up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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