TMI Blog1995 (11) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent under various correspondence, the last of which is dated January 21, 1994, by the respondent's chartered accountant on behalf of the respondent company, and by one of the directors of the respondent company on January 24, 1994. Curiously in letter dated January 24, 1994, the respondent company confirmed only a sum of Rs. 19,03,500 standing to the credit of the petitioner in the respondents books of account. Needless to state that this is in contravention of the earlier admission made by the respondent company and it is clearly an act of afterthought" . According to the petitioner, "... as on February 28, 1994, a sum of Rs. 71 lakhs by way of principal and Rs. 1,41,25,771 is due by way of interest". The petitioner thus claims to be a creditor of the company for a sum of Rs. 2,12,25,771. The documents filed along with the petition were, apart from the copy of its registration certificate, copies of the legal notice sent by the ■ petitioner's counsel on February 28, 1994, reply thereto on March 23, 1994, by the respondent's counsel, the letter dated January 21, 1994, from the respondent's chartered accountant, and of the letter dated January 24, 1994, from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 19,03,500 was paid by the respondent to the petitioner by cheques the receipt of which was reported to the court, in these proceedings, by the petitioner's counsel on September 14, 1994. The petitioner has not taken any action within a period of 3 years from April 2, 1990, for enforcing its claim for Rs. 71 lakhs with interest thereon against the respondent and there is no acknowledgment of liability of the amount claimed by the petitioner, at any time subsequent to April 2, 1990. The only amount that was acknowledged by the respondent in January, 1994, as due and payable to the petitioner was a sum of Rs. 19,03,500. The petitioner would be entitled to maintain a petition for winding up the respondent company on the ground that it is not in a position to pay the debts due to the petitioner only so long as amounts in excess of Rs. 500 are legally due and payable to it by the respondent company. The petitioner can claim the status as creditor of the respondent company only in respect of legally enforceable claims of the petitioner. The petitioner cannot be regarded as a creditor in respect of sums, the recovery of which is barred by limitation. As at the time of hearing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was thereafter adjourned on several occasions at the request of the petitioner. Learned counsel for the petitioner has been unable to point out from the record as to how the claim made by the petitioner in respect of the amount not acknowledged by the respondent, is within the period of limitation. After taking several adjournments on various grounds, the petitioner came with an application C.A. No. 153 of 1995, on March 23, 1995, nearly a year after the petition was filed, to issue subpoena to its own auditor for production of a letter said to have been addressed to the petitioner's auditor by the erstwhile director of the respondent company, in which he is said to have undertaken to repay the debts due to the petitioner, on the ground that the letter would indicate that the claim is within the period of limitation. The letter sought to be summoned is not referred to in any of the pleadings filed by the petitioner. The application is wholly lacking in bona fides . The document sought to be now introduced is allegedly in the custody of the petitioner's own auditor, and was always available to the petitioner, if that document was in existence at the time the petition was filed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Madras; the company is profitably engaged in the business of making movies, and processing of films, the annual receipts from the processing of the films as shown in the profit and loss account exceeding Rs. 3,00,00,000; and the cash profit for the year ended March 31, 1994, is over Rs. 26 lakhs. The fact that the paid up share capital is only Rs. 6,00,000 by itself does not indicate that the company is incapable of meeting its debts. Counsel for the respondent rightly pointed out that no other person has come forward with a petition for winding up on the ground of inability on the part of the respondent to pay its debts. The right given to a creditor under section 433( e ) of the Companies Act to seek winding up of the company is to enable such creditor to realise the amounts due to the creditor along with all other creditors of the company. Such action by a creditor is for the benefit of all the creditors. After the petitioner ceased to be a creditor by reason of the amount lawfully due to the petitioner having been paid, the petitioner has no further right in relation to the affairs of the company, and no enquiry need be made into the company's finances or its conduct in oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts income for purposes of taxation, though condemnable, does not create a right in the petitioner to claim that the amounts which had been shown by the respondent as loans received from fictitious persons, are amounts belonging to the petitioner and lent by it to the respondent. The petitioners have not made any such claim before the income-tax authorities. The alleged loans have been treated by the Income-tax Department as income of the petitioner and tax has been levied thereon. Having regard to the nature of the claim, and the objections thereto raised by the respondent and the conduct of the parties, the debt claimed, except to the extent admitted besides being barred by limitation must be held to be a bona fide disputed debt for which the company has a prima facie defence. The petitioner in the circumstances is only seeking to pressurise the company to pay a disputed debt. A winding up petition for such a purpose will not lie. The fact that the respondent has acknowledged liability on January 24, 1994, for a sum of Rs. 19,03,500 and paid the same in September, 1994, does not extend the period of limitation for the remaining part of the petitioner's claim. This acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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