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2013 (2) TMI 195 - HC - Companies LawWinding up petition - claim was based on the debt recovery of which is barred under the law of limitation - Held that:- The appellant herein had last raised 39 invoices for Rs.67,86,255/- between April, 2007 to March, 2008. Payment of Rs.38,02,495.11 was made by the respondent on or before 12th January, 2009. Tax at source was also deducted on the payments and the tax deduction at source certificate was made available on 12th January, 2009. The winding up petition in the Delhi High Court was filed on 30th November, 2012. It was returned under office objection and was re-filed on 4th December, 2012. In the winding up petition, there is no allegation that the outstanding amount of Rs.23,54,853/- was admitted by the respondent as due and payable to the appellant in their books of accounts or in the annual returns, which was filed with the Registrar of Companies. The company petition was, therefore, filed for recovery of a time barred debt. The company petition does not elaborate and state why and for what reason the debt for which the winding up petition was filed was still due and payable and not barred by limitation as the last payment was received by the appellant and made by the respondent on 12th January, 2009. The period of 3 years, therefore, expired on 12th January, 2012. The appellant at best is entitled to exclusion of 301 days for the period between 15th January, 2011 and 11th November, 2011. The company petition before the Delhi High Court was filed on 30th November, 2012 or after 3 years and 323 days (2012 being a leap year). The claim which is made subject matter of the winding up proceedings would still be barred by limitation as the winding up petition in the Delhi High Court was filed belatedly by 22 days. Treating the notice under Section 434(1)(a) 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. However, need not further dwell and give an affirmation opinion on the said aspect because even if this period of 21 days excluded under Section 15(2) of the Limitation Act, the winding up petition would still be barred on the date of filing by 1 day. Being in the nature of original proceedings, Section 5 of the Limitation Act would not apply - no merit in the present appeal hence dismissed. The costs of Rs.10,000/- imposed by the learned Single Judge on appellant are waived.
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