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TMI Blog2008 (3) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... or payment of interest would be barred by limitation and some other claims would be within limitation. The direction issued by the learned Company Judge to the parties to carry out fresh calculations and to file a chart calculating interest payable under clause 4 of the agreement dated 11/12-11-1998, is also under challenge in this appeal. 2. In order to appreciate the contentions of the parties it is necessary to place on record a few facts leading to the filing of the present appeal. 3. The appellant herein filed a company petition under section 433 read with section 434 of the Companies Act, 1956, for winding up of the respondent-company on the ground that the respondent had failed to make payment of lease rentals and also interest acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the particular quarter during which the equipment is installed at BHEL and MLL will be treated as 'lessor' for the purpose of the same. It is further clarified that HCL will pay interest for the delay in obtaining receipt of lease rentals from BHEL pursuant to the performance under the lease agreement at 2 per cent per month after 30 days from the respective due dates until payment thereof and further HCL will also make good to MLL the short fall, if any, in the respective lease rental due and payable together with interest at 2 per cent per month till the date of payment." 4. By the aforesaid clause, the respondent has given assurance of payment of lease rentals which was due and payable every quarter by BHEL to be paid to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out fresh calculations as aforesaid with reference to the date on which the winding up petition was filed, i.e., 17-3-2005. The aforesaid order of the learned Company Judge is under challenge in his appeal. 5. In support of the appeal, the appellant relied upon the communication dated 17-4-2001, annexed as Annexure A4 and also letter dated 11-10-2002, which is Annexure A6. Relying on the said communications, it was submitted by learned counsel appearing for the appellant that there was acknowledgement of default in the said letters and, therefore, it was not proper for the learned Company Judge to hold that some of the claims for payment of interest accruing for non-payment of some instalments were barred by limitation. It was also submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India v. Assam State Co-operative Marketing & Consumer Federation Ltd. [2004] 12 SCC 360. 7. Mr. V.N. Koura, learned counsel appearing for the respondent, however, refuted the aforesaid submissions contending, inter alia, that there was no acknowledgement as sought to be made out by the appellant and, therefore, the order passed by the learned Company Judge is legal and valid. He also submitted that on a proper interpretation of clauses 4 and 5, it would be established that there was no continuing cause of action as sought to be pleaded and argued by the appellant and what was enforceable was only the agreement between the parties which could be only enforced till all the dues were fully paid to the satisfaction of the appellant, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 12/13-11-1998, by the respondent in favour of the appellant and a supplemental agreement executed on 23-6-1999, between BHEL, the respondent and the appellant, clause 2 of which is relevant which we have perused. 9. A perusal of the aforesaid documents makes it clear that the fixed lease rentals were payable in 20 quarterly instalments covering a period of five years. There is also a stipulation that in the event of a default in the payment of the instalment, either by short payment or delayed payment, the appellant was entitled to recover from the respondent interest at 2 per cent per month, after 30 days from the respective due date of payment until payment and short fall in the lease rental with interest at 2 per cent per month ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and establish that the facts in the said decision are distinctly different and distinguishable from the facts of the present case. In the said decision, the Supreme Court has found that the two letters dated 29-3-1977 and 30-7-1977, clearly acknowledged the amount of Rs. 2 crores, whether by way of advance or by way of deposit against paddy procurement, which was accepted as an admission of jural relationship of buyer and seller, which stood converted into relation of creditor and debtor on the failure of the principal transaction. In the lease under reference in the present case, we have already held that there is no acknowledgement of liability in any of the aforesaid letters as sought to be made out and, therefore, the said decision has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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