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TMI Blog2018 (12) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the respondent. Accordingly, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in newspapers accordingly. - CO.PET. 660/2014 - - - Dated:- 20-11-2018 - MR. JAYANT NATH J. Petitioner Through: Mr. Krishnendu Datta, Mr. Swarup Bannerjee and Ms. Debashree Mukherjee, Advs. Respondent Through: Mr. Jatin Mongia, Adv. JAYANT NATH, J (ORAL) 1. This petition is filed under sections 433(e), 434 and 439 of the Companies Act, 1956(hereinafter referred to as the Act ) seeking winding up of the respondent company. 2. It is the case of the petitioner that the petitioner is one of the subsidiary companies of a Swiss enterprise and is one of the world s leading bridge parts suppliers. In 2002, the petitioner and M/s DSC Limited, the predecessor-in-interest of the respondent shared a business relationship. From 03.11.2009 to 19.07.2011, the predecessor-in-interest of the respondent placed purchase orders on the petitioner for supply of the Bridge Bearing and Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to the petitioner where it is pleaded by the respondent that fictitious and frivolous submissions were being made by the respondent. On 10.04.2014, the petitioner sent a statutory notice to the respondent demanding to ₹ 2,69,34,224/-. The petitioner on 15.04.2014 denied the allegations made by the respondent. Hence, the present winding up petition. 5. The learned counsel for the respondent has opposed the petition. The main contention that has been raised by the learned counsel for the respondent is that the debt of the petitioner is barred by limitation. He admits that when the scheme for demerger was passed by this court on 16.12.2011, in the scheme there was an acknowledgment for the period upto-date i.e. July, 2011 where the dues of the petitioner were acknowledged. He, however, submits that all the invoices in question relate to the period from 2009 to 2011. However, on the date of filing of the petition he submits that limitation had expired. He further submits that reliance of the learned counsel for the petitioner on section 18 of the Limitation Act, 1963 is misplaced. He submits that the acknowledgement which was filed by the predecessor-in-interest of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent to the petitioner. On that date the predecessor-in-interest of the respondent was dealing with the assets and liability of the respondent. This payment would be an acknowledgement of the debt. 10. Section 19 of the Limitation Act, 1963 reads as follows: 19. Effect of payment on account of debt or of interest on legacy.- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: 19. Effect of payment on account of debt or of interest on legacy.- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson acknowledging possesses some interest which can be bound by his statement. If he has no such interest, it will be a misnomer to call his statement, an acknowledgment of liability. No debtor, for example, can be held to be bound by a mere acknowledgment by a stranger. Again, it is a well-settled rule that an acknowledgment of liability must involve an admission of a subsisting jural relationship between the parties and a consciousness and an intention of continuing such a relationship until it is lawfully terminated. In Venkata v. Parthasarathi, ILR 16 Mad 220, Muthuswami Aiyer, J. in considering what an acknowledgment Under Section 19 should be said: It is, therefore, necessary that upon a reasonable construction of the language used by the debtor in writing the relation of debtor and creditor must appear to be distinctly admitted, that it must be admitted also to be a subsisting jural relationship and that an intention to continue it until it is lawfully determined must also be evident. That it is essential that there should be such a jural relationship, has been pointed out in a recent judgment of the Supreme Court in Shapoor Fredoom Mazda v. D. P. Chamaria, , w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and defective and hence on merit also no debt is due and payable to the petitioner. 16. In my opinion, this plea is baseless keeping in view the clear cut acknowledgement made as noted above, the respondent/ the predecessor-in interest of the respondent who would not have been acknowledging the debt due if defective products have been supplied. There is no merit in the defence of the respondent. 17. Reference in this context may be had to the judgement of the Supreme Court in IBA Health (I) Pvt. Ltd. vs. Info-Drive Systems Sdn.Bhd., (2010) (4) CompLJ 481 (SC) where the Supreme Court held as follows:- 17. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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