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TMI Blog2013 (7) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... t borrowed from Surabhi Sindhu, the Company had repaid and the balance of was transferred to the share application money account . The shares, however, have not been allotted. The balance sheet was signed by the Directors as well as the Chartered Accountants on 1.9.2010 and if this date is taken as the date of acknowledgment of the debt, as it ought to be in the light of the settled legal position in this behalf, the period of limitation gets extended up to 31.08.2013. Petitioners are entitled to costs of ₹ 25,000/- from the respondent-company. - Co. Pet. 468/2011 & Co. App.(M) 2249/2011 - - - Dated:- 10-7-2013 - R.V. Easwar, J. For Appellant: Mr. Parag P.Tripathi, Sr. Advocate with Ms. Neelima Tripathi, Advocate For Respondents: Mr. Sanjay Chabra with Mr. Itamal Bahal, Adv. JUDGMENT R.V. Easwar, 1. The petitioners Shahi Exports Pvt. Ltd. and Ms. Surabhi Sindhu have filed the company petition for winding up of CMD Buildtech Pvt. Ltd., hereinafter referred to as the Company , under section 433(e) read with sections 434 and 439 of the Companies Act, 1956 on the ground that the Company is unable to pay its debts allegedly amounting to ₹ 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company under which it would transfer three immoveable properties in favour of the petitioners. These properties were at Solan and Yamuna Nagar. This proposal was not acceptable to the petitioners. Thereupon it was agreed in Court on behalf of the Company that a more concrete proposal acceptable to the petitioners would be made. The Court accordingly adjourned the matter to 1.3.2013 but stayed the alienation or creation of any third party interest in the properties at Solan and Yamuna Nagar. When the matter was taken up on 1.3.2013, the stay in respect of the three properties was vacated as there was no possibility of any settlement; however, the Company was restrained from selling, transferring, creating any third party interest etc. in respect of all its immoveable assets. On 22.5.2013, when the matter was taken up again an adjournment was sought on behalf of the Company which was vehemently opposed. The adjournment was, however, allowed subject to payment of costs and an order was passed directing the Company not to transfer or create any charge in respect of its stock-in-trade also. 2. Thereafter, the matter has come up for hearing now before me. It was again pleaded on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown by Annexure P1 to the rejoinder filed by the petitioner. If the period of three years is taken from the date of the cheque, the period of limitation gets extended under Section 18 of the Limitation Act to 9.8.2012. Secondly, in the balance sheet of the Company as on 31.3.2010, on amount of ₹ 4 crores due to Sarla Fabrics Pvt. Ltd. is shown under the head unsecured loan in the liabilities side and the amount of ₹ 2 crores due to Surabhi Sindhu is shown under the head share application money . It may be noted here that out of the amount of ₹ 4 crores borrowed from Surabhi Sindhu, the Company had repaid ₹ 2 crores and the balance of ₹ 2 crores was transferred to the share application money account . The shares, however, have not been allotted. The balance sheet was signed by the Directors as well as the Chartered Accountants on 1.9.2010 and if this date is taken as the date of acknowledgment of the debt, as it ought to be in the light of the settled legal position in this behalf, the period of limitation gets extended upto 31.08.2013. Lastly, as shown by Annexure P18 to the winding-up petition, on 19.5.2011, the following letter was written by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company did not raise the issue of limitation but sought adjournment. Thus, apart from the fact that the winding-up petition was filed before the debt was barred by limitation and that the Company went on extending the period of limitation by acknowledgments in its accounts as well as by part payment of the loan or by payment of the interest, it also stood up in Court to make a categorical admission of its liability to pay the monies to the petitioners. At no point of time prior to the hearing before me did the Company raise the issue of limitation. Proceedings were allowed to go on and orders were passed by this Court on the basis of the unequivocal stand taken by the Company that it was liable to pay the amount in question to the petitioners. In these circumstances, it appears to me that the plea of limitation taken on behalf of the Company is an act of despair, not well-intentioned, frivolous and represents a ploy to delay the proceedings. 6. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the company's balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Moreover, the company sought to be wound up is a private limited and the provisions of section 73 of the Companies Act relating to the deposit of the share application monies in a separate bank account do not apply. The monies remain with the company until shares are allotted. It is only when shares are allotted that the debt ceases to exist, but till that point of time is reached there is a debt created in favour of the share-applicant. 9. In the result, the preliminary objections of the company are over-ruled and the Company Petition No. 468/2011 is held maintainable. Petitioners are entitled to costs of ₹ 25,000/- from the respondent-company. 10. In Co. App. No. 2249/2011, the petitioners have prayed for an order (a) restraining the respondent-company or its agents/servants from disposing of or otherwise alienating or transferring or creating any third-party interest in any of its properties/funds including its interest in the lands located in Kondli (Sonepat) and Yamunanagar given as security to the petitioners; and (b) restraining the respondent-company or its agents/servants from disposing of or otherwise alienating or transferring or creating any third-party i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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