9911796707
TMI Blog2010 (4) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... interest at the rate of 15 per cent. per annum. 3. In the statutory notice of January 27, 2009, the petitioner claimed that a sum of Rs. 5 lakhs was indeed repaid by the company but that was adjusted against the interest to which the petitioner was entitled. The notice asserted that the last of the payments had been made by the company on June 19, 2006. There was no reply to the statutory notice. 4. In the petition, the petitioner has relied on the money receipt of June 12, 1998, the confirmation of accounts for the financial years 1998-99, 1999-2000, 2002-03, the cheque payments made on October 17, 2005 and June 19, 2006 and a voucher of April 12, 2006, evidencing another payment by the company to the petitioner. 5. Annexure F to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law requires any notice to be given, the period of such notice has to be excluded before computing the period of limitation. The petitioner relies on a judgment reported at Khedut Oil Cake Industries v. Union of India, AIR 1988 Delhi 88 and refers to paragraph 10 thereof where section 15(2) of the Limitation Act, 1963, was considered in the context of a notice issued to the Government under section 80 of the Civil Procedure Code, 1908. The petitioner also relies on a judgment reported at Raj Kumar Dey v. Tarapada Dey, AIR 1987 SC 2195, where it was held that section 15(2) of the Limitation Act, 1963, would apply to arbitration proceedings. 9. To begin with, section 15(2) of the Act may not apply to a creditor's winding up petition which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar suit unless it could establish that the company had, indeed, made payment in the year 2007. If the petitioner had filed a suit on the same day that this company petition was brought, the date of the last admitted payment would not have permitted the petitioner to pursue the claim. For a company to be adjudged unable to pay its debts would imply that there is an enforceable claim which remains outstanding. As to whether there is an enforceable claim in this case, hinges on the alleged payment said to have been made in the year 2007. This gives rise to a bona fide dispute. 13. It was not imperative for the petitioner to issue the notice under section 434 of the Companies Act, 1956, to enforce the petitioner's claim. Such notice was necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up a date and included it in paragraph 12 of the petition though there is no mention of a payment having been made in July, 2007 in the statutory notice issued in January, 2009. The statement of accounts appended to the petition at pages 18 to 20 also does not reveal that any payment had been made by the company to the petitioner during the financial year 2007-08. 15. For a petitioning creditor to approach this equitable jurisdiction, the person must come with clean hands and utmost candour. Irrespective of whether the petitioner can avail of section 15(2) of the Limitation Act, which appears to be inapplicable to the present case, since it is evident that the relevant averment by the petitioner at paragraph 12 of the petition is contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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