TMI Blog1971 (5) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... The authorised capital of the company consists of 1,00,000 equity shares of Rs. 10 each out of which 80,000 shares of Rs. 10 each had been issued, 16,277 whereof have been subscribed and paid up in full. The name of the said Goenka Commercial Bank Ltd. was subsequently changed to Darjeeling Commercial Co. Ltd. on 26th March, 1966. Goenka Commercial Bank Ltd. is stated in the Company Petition No. 225 of 1970 to have lent and advanced to the company a sum of Rs. 3,00,000, the repayment thereof with the stipulated interest was secured by a second charge on all the assets of the company by a duly executed and registered instrument of mortgage. It is further stated in the said company petition that a sum of Rs. 3,99,93609 inclusive of interest up to 31st December, 1969, "is due and payable" by the company to the petitioner. It has been stated also that the company by letter dated June 21, 1968, confirmed and acknowledged its liability for the sum of Rs. 3,88,174.03, as on December 31, 1967, to the petitioner. The statutory notice under section 434 of the Companies Act, 1956, was served on the company through M/s. P. D. Himatsingka Co., the creditor's solicitors by their letter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came up for hearing before K. L. Roy J., when his Lordship passed orders for advertisement of the petition but the publication of the advertisement was stayed for three weeks in order to enable the company to apply for stay of the Company Petition No. 225 of 1970. On February 9, 1971, the present judge's summons was taken out, inter alia, for stay of the said company petition. Mr. J. N. Roy, appearing on behalf of the company, contended in support of an order for stay that there was a bona fide dispute with regard to the debt mentioned in the petition for winding up. In paragraph 7 of the petition for winding up it is stated that a sum of Rs. 3,00,000 was lent and advanced, i.e., one sum of Rs. 3,00,000, was lent and advanced. In affidavit-in-opposition of B. K. Chirimar filed-in-opposition to the application for stay it is stated that a sum of Rs. 3,88,000 was advanced to the applicant (see paragraph 8 of the affidavit of Bijoy Kumar Chirimar affirmed on 15th March, 1971). No statement of account has been produced by the creditor. There is nothing on record to show that the claim of the creditor is not barred by the law of limitation. The creditor is a mortgagee, but has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgage was illegal, fictitious and without consideration, cancellation of the same and for an injunction restraining the creditor from taking any proceeding on the basis of the said instrument of mortgage. It appears that although fraud has been alleged in the plaint, no particulars thereof has been furnished and, according to Mr. Sen, such bald allegations of fraud cannot be taken any notice of by any court of law. Lastly, Mr. Sen contends that on the basis of the pleadings it is clear that there is a debt subsisting due by the company to the creditor and the company is unable to pay the said debt. Mr. Sen further contends that in view of the order of advertisements passed by the court as mentioned above, the application for stay is barred by res judicata and/or principles analogous thereto. Mr. Sen relies on Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 . Mr. Sen also relies on the case, National Conduits (P.) Ltd. v. S . S. Arora [1967] 37 Comp Cas 786 (SC), and the observations of the Supreme Court at page 788 of the said report. It appears from the Company Petition No. 225 of 1970 and the annexure thereof including letter dated April 30, 1970, the creditor asserte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient, in my opinion, to come to this conclusion. However, Mr. Roy also strengthened his submission by the decision of the Judicial Committee of the Privy Council in Ramdin v. Kalka Prasad [1884] ILR 7 AH 502 (PC) , wherein it was decided by the Judicial Committee of the Privy Council that the personal remedy even against a debtor under a mortgage of immovable property becomes barred on the expiry of three years from the due date of redemption although the remedy as against the mortgaged property itself becomes barred after 12 years from such due date of redemption. The said decision construed articles 65 and 132 of the Limitation Act of 1871. Article 132 of the said Limitation Act is substantially in identical terms as article 132 of the Limitation Act of 1908 and the corresponding article 62 of the present Limitation Act, No. 36 of 1963. The contention in the said case on behalf of the mortgagee was that the period of 12 years applies to every remedy which the instrument of mortgage carried with it and gave 12 years for the personal remedy against the mortgagor as well as against the mortgaged property. Their Lordships of the Judicial Committee held that article 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company that there is a bona fide dispute with regard to the loan. Mr. Roy has rightly contended that the dates of the loans have not been given in the petition for winding up or in the affidavit-in-opposition to the companies' application for stay of winding up. From the copies of acknowledgements as have been annexed to the company petition the debt does not seem ex facie to be a subsisting debt. But I have already noted that in annexure B to the Company Petition No. 225 it has been stated that in the annual balance-sheets of the company duly signed by the directors of the company, the said debt in favour of the creditor was shown year after year. In Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff AIR 1962 Cal. 115 , a Division Bench of this court held that admission of indebtedness in a balance-sheet of a company is a sufficient acknowledgement under section 19 of the Indian Limitation Act of 1908. Section 18 of the Limitation Act of 1963 is in identical terms as the section 19 of the Limitation Act of 1908, and the aforesaid decision of the Division Bench applies on all fours to the facts of the instant case. The balance-sheets of the company as alleged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge, Darjeeling, the petitioner cannot take advantage of the statutory notice served under section 434, but that is not sufficient for defeating the petition itself. The creditor may prove the debt aliunde and may also prove that the company or debtor is unable to pay its debt. That was held by S. R. Das J. in the case of In re Darjeeling Bank Ltd. [1949] 19 Comp Cas 1 (Cal.). In the said case the statutory notice for demand under section 163 did not comply with the requirements of the section and were held to be invalid. Bat it was held that that only precluded the petitioner in the said case from availing of the presumption as to the company's inability to pay its debt. The petitioner proved the company's inability to pay its debt as a fact aliunde and relied on the just and equitable grounds. It was held that in those circumstances the company should be wound up. The said case was noted with approval in Palmer's Company Precedents, 17th edn., vol. II, page 26, foot-note 22. At the present moment the court would only see as to whether there is a prima facie case for winding up to be investigated into by the court or whether the petition for winding up is an abuse of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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