TMI Blog2007 (3) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of the respondent, the cheque was again deposited but again it got dishonoured with the remarks referred to drawer . 4. For the amounts payable by respondent to the petitioner, by letter dated 24-1-2003, it was confirmed that an amount of Rs. 17,29,807 is due from respondent to the petitioner and it was assured that the payment shall be made in instalments starting from 3-2-2003 and finishing on 10-3-2003. 5. The petitioner also relied on another letter dated 26-3-2003 stipulating the tentative payment schedule from mid-April to mid-July 2003. 6. A demand notice dated 10-5-2003 was raised demanding a sum of Rs. 15,79,807. The last payment was made by the respondent to the petitioner by DD.No. 10648 dated 7-3-2003. 7. As the respondent had failed to make the payments to the petitioner a Company Petition No. 12 of 2004 was filed by the petitioner in the High Court of Himachal Pradesh at Shimla on 20-12-2004 after giving a notice under section 434 of the Companies Act, 1956 on 28-7-2003. The notice is alleged to have been sent to the registered office of the respondent at Parwano and a copy was sent to the office of the respondent at Delhi. 8. In the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held to be within time. 13. Perusal of the provisions of the Companies Act, 1956 reflects that no limitation is provided for filing the Company Petition under section 433 or 434 of the Companies Act. However, while considering the application of the creditor for winding up of a company on the ground that the company is unable to pay its debt what is to be seen whether the debt claimed by the creditor is within time or not and if the claim of the debt by the creditor is not within time whether the Company Court should initiate the process of winding up of company who has declined to pay a debt which is not within time. 14. Since no period of limitation is provided in filing the winding up petition, therefore, the application of the petitioner seeking condonation of delay in filing the winding up petition after the winding up petition filed in the High Court of Himachal Pradesh at Shimla was returned as not maintainable, the present petition can be filed by the petitioner. 15. On consideration of the averments made in the application, therefore, it appears that the petitioner is claiming that his claim against the respondent for recovery of Rs. 15,79,807 is within tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounted; ( b )a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; ( c )misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." 18. One of the conditions required to be satisfied is that the proceedings taken earlier must be of same relief as claimed in the present proceedings as contemplated under section 14(2) of the Act. It has already been held that there is no limitation in filing an application under section 433 of the Companies Act, 1956 provided under the said Act. What is to be considered is whether the period of limitation to recover the amount shall be extended by filing a petition under section 433 of the Companies Act, 1956. 19. For application of section 14(1) it is necessary to show that the civil proceedings which were taken earlier by the petitioner were relating to the same matter in issue and the said matter was prosecuted in good faith in a Court which for the defect of jurisdiction or other cause of a like nature was unable to entertain it. A company petition for winding up in which ultimately the petitioner may get the amount due to him or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of said amount has not been filed by the petitioner. Therefore, the claim of the petitioner to recover the amount due from the respondent has become barred by time. Therefore the time spent by the petitioner in prosecuting company petition cannot be excluded while computing the period of limitation under section 14 of the Limitation Act, 1963. 21. The Supreme Court had held in Yeshwant Deorao v. Walchand Ramchand 1950 SCR 852, AIR 1951 SC 16 that there can be no exclusion under section 14 of the Limitation Act of time spent in insolvency proceedings against the judgment debtor, in computing the period of limitation for executing a decree against him, as the proceedings are not for obtaining the same relief. The Apex Court had held as under: ". . .The relief sought in insolvency is obviously different from the relief sought in the execution application. In the former, an adjudication of the debtor as insolvent is sought as preliminary to the vesting of all his estate and the administration of it by the Official Receiver or the Official Assignee, as the case may be, for the benefit of all the creditors; but in the latter, the money due is sought to be realized for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay High Court has laid down the following principles in Softsule (P.) Ltd., In re. [1977] 47 Comp. Cas. 438 : "It is well settled that a winding-up petition is not legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order. Secondly, if the debt is bona fide disputed, there cannot be neglect to pay within the meaning of section 433(1)( a ) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated. Thirdly, a debt about the liability to pay which at the time of the service of the insolvency notice, there is a bona fide dispute, is not due within the meaning of section 434(1)( a ) and non-payment of the amount of such a bona fide disputed debt cannot be termed as neglect to pay the same so as to incur the liability under section 433( e ) read with section 434(1)( a ) of the Companies Act, 1956. Fourthly, one of the considerations in order to determine whether the company is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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