9911796707
TMI Blog2019 (6) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was filed on or after 24.06.2013 which is after almost 11 months from the date of legal notice dated 26.07.2012. It is pertinent to mention that Hon ble High Court of Delhi in Interactive Media and Communication Solution Private Limited vs GO Airlines Limited, [ 2013 (2) TMI 195 - DELHI HIGH COURT ] has held that a claim which is barred by limitation on the date of filing of the Petition cannot be said to be within limitation if the notice under section 434 of Companies Act demanding payment of the said claim was sent within limitation. In the present case, the notice under section 434 was filed on 26.07.2012 which is within limitation period; however, the petition for winding up was filed on 24.06.2013 which is beyond the period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted a copy of the High Seas Sale Agreement dated 23.01.2008 entered between the Petitioner and the Corporate Debtor, a copy of Bill of Entry bearing no. 3370229. 4. The Petitioner sent a Legal notice dated 26.07.2012 demanding payment of the outstanding dues with interest within a period of three weeks failing which the Petitioner filed, before the Hon ble Bombay High Court, the Company Petition (L) No. 409 of 2013 for winding up of the Corporate Debtor on the grounds of inability to pay debts. The said petition came to be transferred to this Tribunal vide order dated 13.11.2017 of the Hon ble High Court and was received in this Tribunal on 13.12.2017. 5. The Petitioner has sent a Demand Notice dated 05.03.2018 to the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the arguments of the Petitioner and perused the records. 9. From the records submitted it is admitted that the Petitioner sent a legal notice dated 26.07.2012demanding payment under Companies Act, 1956 and the Petition for winding up was filed before the Hon ble High Court on or after 24.06.2013. It is this petition for winding up that is transferred to this Tribunal in compliance with the order of the Hon ble High Court dated 13.11.2017. The transferred petition was treated as a petition under section 9 of the I B Code. 10. The Corporate Debtor has raised the preliminary issue of the claim being barred by law of limitation. 11. Before going into the merits of the case, it is pertinent to note that the date of default, admittedly, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as equivalent to Section 80 CPC and to give benefit of Section 15(2) of the Limitation Act would, therefore, lead to analogous and somewhat incongruous situation where the creditor cannot sue a company in civil proceedings as time-barred debt but can by invoking the exclusion under Section 15(2) of the Limitation Act, sue a company for winding up of company on account of deeming fiction that the company is unable to pay the same debt. 13. In the present case, the notice under section 434 was filed on 26.07.2012 which is within limitation period; however, the petition for winding up was filed on 24.06.2013 which is beyond the period of limitation. Thus, it appears that the winding up petition has been filed beyond the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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