9911796707
TMI Blog2018 (7) TMI 1762X X X X Extracts X X X X X X X X Extracts X X X X ..... ll No.38 dated 23.04.2010, Bill No.51 dated 11.5.2010, bill No.50 dated 11.5.2010, Bill No.81 dated 2.6.2010, Bill No. 82 dated 2.6.2010 and Bill No.130 dated 17.7.2010 for a total amount of Rs. 12,10,022/-. It is stated that on various occasions the respondent made payment of Rs. 7,86,435/- and an amount of Rs. 4,23,407/- remains outstanding. Reliance is also placed on two separate C-Forms said to have been issued on 2.4.2012 by the respondent company acknowledging an amount of Rs. 4,41,722/- in respect of bill No.130 and an amount of Rs. 7,68,120/- in respect of Bill Nos.38,50,51,81 and 82. On 10.9.2014 the petitioner company issued a notice under section 433 and 434 of the Companies Act. The said notice is said to have been returned back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal position on limitation as follows:- "6. The limitation period would be three years. Article 14 of the Limitation Act reads as follows:- 14. For the price of goods sold and delivered where no fixed period of credit is agreed upon. Three years The date of the delivery of the goods. 7.This court in Interactive Media & Communication Solution Pvt. Ltd. v. Go Airlines Ltd.(supra), held as follows: "4. What is stated in the said paragraphs is that no period of limitation has been prescribed under the Limitation Act for filing of a winding up petition. However, Section 433(e) stipulates that a winding up petition is maintainable when a company is unable to pay the debt which is due and payable. We have already interpreted Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreement. The winding up petition was filed on 21st March, 2001, whereas payment became due in July, 1997 and part payment was made on 10th July, 1997." 9. The alleged claim by the petitioner is barred by limitation on the face of record. I see no reason to allow the present petition. The same is accordingly dismissed. All the pending applications, if any, are also dismissed." 7. Hence, where on the facts of the case a claim is barred by limitation, a winding up petition would not lie. In this case, the petitioner claims or contends that the C-Form is an acknowledgement of debt and would extend the period of limitation. The bone of contention between the parties is whether the C-Form would extend the period of limitation? A perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right." 9. This court in Taipack Limited and Ors vs. Ram Kishore Nagar Mal, (supra) has held that a C-Form is not an acknowledgement of debt in terms of section 18 of the Limitation Act. This court held as follows:- "31. Now can it be said that the 'C' Form supplied by the Petitioner herein constitutes acknowledgment of debt owed to the Respondent No. 1 so as to give a fresh lease to the commencement of Limitation? The answer is plainly in the negative for the following reasons: Firstly, there is no acknowledgement of a present and subsisting liability. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1236 the Apex Court while interpreting corresponding Section 19 of Limitation Act, 1908 which was identically worded, held that the relevant essential requirement of valid acknowledgment are: (a) It must be before the relevant period of limitation has expired, (b) it must be in regard to the liability and respect of the right in question and (c) it must be in writing and must be signed by the party against whom such right is claimed." 11. Hence, for acknowledgement of a debt it must be an acknowledgment of liability in respect of such amount made in writing signed by the parties. It would be clear that what the Form-C indicates is a statutory averment which is given under the Central State Tax Act. It merely shows delivery of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
