TMI Blog1999 (4) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... -company. 2. The case of the petitioner-company is that pursuant to two separate orders; one dated 22-3-1984 and another dated 6-4-1984 placed with it by opposite party No. 1 for supplying Ferro Manganese and Ferro Silicon the petitioner-company which carries on business of manufacturing, selling and/or otherwise dealing in Ferro Manganese, Ferro Silicon and other Ferro Alloys, had supplied to the former at its worksite at Mihijam 12.090 M.T. Ferro Manganese and 8 M.T. Ferro Silicon on 27-3-1984, 11-4-1984 and 17-4-1984. While 7.020 M.T. Ferro Manganese and 5 M.T. Ferro Silicon had been supplied on 27-3-1984 at the rate of Rs. 5,700 and Rs. 11,350 per M.T. respectively as per the agreement/supply order dated 22-3-1984, the remaining supplies of Ferro Manganese and Ferro Silicon on 11-4-1984 and 17-4-1984 were made at the rate of Rs. 7,050 and Rs. 12,750 per M.T. respectively as per the letter of agreement/supply order dated 6-4-1984. In terms of the agreements/supply orders including those respecting packing charges, freight and payment of excise duty and Central sales tax, etc., the petitioner-company submitted to opposite party No. 1 six bills; three for Ferro Manganese and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany is 'highly disputed' and time-barred; still awaiting adjudication by the Calcutta High Court in the suit filed respecting the same. It has been further stated in the counter affidavit of opposite party No. 1 that undertaking was established in the most backward area of this State of Bihar to provide employment to the local people but due to some financial constraints, presently it has become non-functioning. However, after having failed in getting favourable response from BIFR, attempt is being made for its rehabilitation with the help of the State Bank of India and preliminary discussions with the officers of the said Bank have already taken place. Therefore, it has been urged that the company petition for winding-up of opposite party No. 1 be dismissed. 5. At a subsequent stage, State Bank of India (opposite party No. 2 and to be referred to hereinafter as the Bank) and Biher State Industrial Development Corpn. (opposite party No. 3) having major share in the company were added as parties to the petition on intervention petitions having been filed. While opposite party No. 3 has not filed any show cause, one has been filed on behalf of the Bank questioning the maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; ( b ) if execution or other process issued on a decree or order of any Court in favour of a creditor of the company is returned unsatisfied in whole or in part; or ( c ) if it is proved to the satisfaction of the Court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company.' 7. There is no dispute regarding the fact that the petitioner-company has supplied certain materials to opposite party-company as far back as in 1984 and submitted bills therefore to the extent of Rs. 1,87,503.26 and after part-payments made there against a sum of Rs. 1,06,617.99 remained still unpaid. When that amount was not paid within the stipulated period, a legal notice through an advocate was served on opposite party No. 1 demanding payment of Rs. 1,95,805.03 including interest and additional Central tax, etc., because of failure by opposite party No. 1 to furnish Form No. C. That letter was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to pay interest at the rate of 20 per cent per annum. Therefore, taking into account the provision of article 15, the unpaid price could have been realised by intervention of the Court in a properly instituted suit by 27-4-1987, 11-5-1987 and 17-5-1987 respectively the supplies made and bills on 27-3-1984, 11-4-1984 and 17-4-1984 respectively. However, it has been contended by the petitioner-company, and not denied by opposite party No. 1 that the latter had made part payment against the said bills and that last such payment was made on 17-6-1985. Section 19 of the Limitation Act provides that where payment of account of 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. Thus, section 19 provides a fresh period of limitation in case of part payment of a debt to be reckoned from the date of such payment. As last of the part-payments was made by opposite party No. 1 on 17-6-1985 well within the prescribed period of limitation from the dates of the bills, a fresh lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt. Therefore, the debt on the basis of which the winding up of opposite party No. 1 is sought, shall be deemed to subsist when the present petition was presented in this Court in 1992. In my opinion, the contention lacks merit. Simply because a suit for realisation of the debt of the petitioner-company against opposite party No. 1 was instituted in the Calcutta High Court on its original side, such institution of the suit and the pendency thereof in that Court cannot enure for the benefit of the present winding up proceeding. The debt having become time-barred when this, petition was presented in this Court, the same could not be legally recoverable through this Court by resorting to winding up proceeding because the same cannot legally be proved under section 520 of the Act. It would have been altogether a different matter if the petitioner-company approached this Court for winding up of opposite party No. 1 after obtaining a decree from the Calcutta High Court in suit No. 1073 of 1987 and the decree remaining unsatisfied, as provided in clause ( b ) of sub-section (1) of section 434. Therefore, since the debt of the petitioner-company has become time-barred and cannot be legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that an attempt to revive and rehabilitate opposite party No. 1 having failed, a Bench of BIFR observed that it was just and equitable that Rajhans Steels Ltd. should be wound up. Therefore, it has been urged that in view of the provision of section 20 of the Sick Industrial Companies (Special Provisions) Act, opposite party No. 1 is bound to be liquidated. When this fact was brought to my notice, there was an attempt to find out if any such order had been received in the registry of this Bench. The Registry having informed that no such order had been ever received even though purporting to have been despatched on 7-8-1990, the Registrar-General of the High Court at Patna was directed vide order dated 16-2-1999, to enquire into the matter and sent the record to this Court immediately. A reply was received in response to the communication that no such record was shown to have been received in the registry there. Consequently, on 23-2-1999 there was a fresh order directing the registry at Patna to make thorough search in the office and trade out the record of the BIFR and transmit the same to this Court at the earliest. The record shows that on the request of the Registry at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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