9911796707
TMI Blog1998 (5) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted and that inspite of the aforesaid admission no payment was made which clearly established that the respondent company was unable to pay its debt. 3. Notice was issued on the aforesaid petition and the matter was listed before this court for admission of the company petition. By order dated 2.11.1993 this court held that the winding up petition is not maintainable and that the remedy available with the petitioner was to file a suit provided the same is within limitation. An appeal was preferred as against the aforesaid order passed by this court which was registered as Company Appeal No. 32/1993. The Division Bench of this court by order dated 29.11.1995 set aside the order passed by the Company Judge oh 2.11.1993 and remitted'the matter back to the Company Judge again for disposal of the same in accordance with law in the light of the observations made by the Division Bench. The Division Bench, while considering the matter observed that there was an admission of the respondent of liability of dues payable to the petitioner to the extent of ₹ 6,89,870.76 and that the Company Judge should have considered the issue of applicability of the provisions of Section 433 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of making the order was also directed to be published in the newspapers namely STATESMAN and DAINIK VEER ARJUN. In pursuance of the aforesaid order passed by this court publication has been done in the STATESMAN and in DAJNIK VEER ARJUN on 24.1.1998. 5. Now the respondent has filed the aforesaid applications praying for recalling of the aforesaid orders dated 10.4.1997 and 12.9.1997 alongwith an application for condensation of delay in filing the said application as also for passing necessary orders staying the operation of the aforesaid two orders. 6. I have heard Mr. Harish Uppal, learned counsel appearing for the applicants/respondent, the learned counsel appearing for the petitioner as also the Official Liquidator represented by Mr. S.K.Lulhra, Advocate. 7. Mr. Uppal submitted before me that the application praying for recalling and/or review of the order has been filed by the respondent under the provisions of Order 9 Rule 13 CPC. He has submitted that for negligence and non-appearance of the counsel the respondent cannot be blamed and that the respondent cannot be made to suffer because of laches on the part of his Advocate. It was stated that the respondent paid fee to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the order dated 10.4.1997 was published in two newspapers and also in Delhi Gazette indicating therein that the petition has already been admitted and the same has been set down for hearing on 12.12.1997. In view of the publication of the citation in the two national newspapers it could be reasonably and logically deduced that the respondent had knowledge about the order passed on 10.4.1997 and fixing the matter for 12.9.1997 when in fact the counsel was present representing the counsel for the respondent. The principles decided by the decisions relied upon by the counsel appearing for the respondent are settled law and cannot be disputed. However, on consideration of the facts and circumstances of the case it is crystal clear that the respondent itself had definite knowledge of the dates fixed in the company petition atleast for 12.9.1997 as also 2.12.1997. Even in terms of the order passed on 2.12.1997 the citation was published in the STATESMAN and DAINIK VEER ARJUN on 24.1.1998. Inspite of the aforesaid publication the respondent/applicant did not file its present applications till 27.2.1998. In my considered opinion therefore, there was not only negligence and laches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. Co.A. 32/1993 have also held that there is an admission of liability by the respondents to the extent of ₹ 6,89,870.76 which is contained in the admission made by the respondents in its reply dated 22.11.1991. On consideration of the aforesaid materials this court came to the conclusion that the respondent is indebted to the petitioner to the aforesaid extent of ₹ 6,89,870.76 and that the said company is unable to pay its debt. 12. Counsel appearing for the respondent however, submitted before me that the company petition filed by the petitioner is not maintainable as his application under Order 12 Rule 6 of the Code of Civil Procedure has been dismissed in Suit No. 475/1990. He submitted that in view of the aforesaid position the discretionary relief under the Companies Act could not have been granted to the petitioner, since the petitioner is not entitled to avail two alternative remedies at the same time. He further submitted that the claim was disputed claim and there was no admission as held by this court. He further submitted that the claim of the petitioner as raised in the Company petition is also barred by limitation and, therefore, the aforesaid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of ₹ 6,89,870.76 and that the said liability was acknowl edged by the respondent in its reply dated 22.11.1991. In view of the aforesaid acknowledgement of debt in the balance sheet as also in the reply sent by the respondent through one of its Directors constituting acknowledgement in writing within the mean ing of Section 18 of the Limitation Act, the petition presented by the petitioner on 14.5.1992 to enforce a liability of the company acknowledged in the balance sheet for the year ending 31.3.1990 is indisputably within time. Reference may also be made to a decision of this court in Larsen & Toubro Ltd. v. Commercial Electrical Works and Ors., wherein this court referred to the decision reported in ILR 33 Calcutta 1033 wherein it was held that a statement of accounts like balance sheet would constitute acknowledgement of liability. The decisions relied upon by the counsel for the respondent also have taken the same view with which I respectfully agree. 15. In view of the aforesaid position I hold that the claim of the petitioner as raised in the present petition is not barred by time and the same could have been adjudicated upon by this court. In my consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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