TMI Blog2011 (11) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, such sum constitutes a debt in praesenti. Winding up petition allowed - CO. PET. NO. 246 OF 2006 CA NO. 1206 OF 2006 - - - Dated:- 21-11-2011 - MANMOHAN, J. Anand Varma for the Petitioner . Girdhar Govind and Ms. Reena Jain Malhotra for the Respondent . JUDGMENT 1. Present petition has been filed under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 (for short 'Act') stating that the respondent-company is unable to pay its debt allegedly amounting to Rs. 50,00,000/- as well as interest. 2. The facts as stated in the petition are that in the year 1994, petitioner was approached by the respondent-company's management for lending money to it at an attractive rate of interest. According to the petitioner, as he was looking for an opportunity to invest in India, he agreed to give an interest bearing loan of Rs. 50,00,000/- to the respondent-company. The petitioner issued a cheque/draft of Rs. 50,00,000/- dated 05th December, 1994 from his account in Allied Irish Bank payable at Bombay in favour of the respondent-company. The said cheque was handed over to the respondent-company's management on 08th December, 1994 and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. Learned counsel for the respondent laid emphasis on the fact that the petitioner had not filed a single document along with the petition from 1994 till 2006 alleging that the aforesaid amount of Rs. 50,00,000/- had been forwarded as a loan. 8. Learned counsel for respondent-company further submitted that the alleged claim by the petitioner was hopelessly barred by limitation as it had been filed after a gap of more than twelve years. It was further contended by the learned counsel for respondent-company that even if it was accepted that the petitioner initially did not know as to how the amount of Rs. 50,00,000/- had been treated by the respondent-company in its books of accounts, it is an admitted fact that the petitioner was aware of the same in the year 2002, whereas the present petition had been filed after a gap of more than four years, in the year 2006. 9. On merits, learned counsel for respondent-company stated that it had been approached by the petitioner for purchase of its shares for a sum of Rs. 1 crore @ Rs. 100/- per share, but as the petitioner had deposited only a part payment of Rs. 50,00,000/- towards the Share Application Money, the shares co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares but they were not allotted the shares, has been stoutly denied by the respondents. It is not disputed that there was no compliance with section 41(2) of the Companies Act on behalf of the petitioners. All these questions which have arisen in the petition definitely indicate that the alleged debt is not an admitted or liquidated debt but has been bona fide disputed by the respondent-company. The petitioners have already filed a civil suit in this court for recovery of the aforesaid alleged debt from the respondent-company. Though according to Shri Kadam, pendency of the civil suit is not a bar to maintain a company petition, according to me, since the petitioners have restored to a legitimate civil remedy to recover their alleged debt, the present company petition cannot be entertained at all. It is well settled legal position that the company petition is a last resort for the parties and it must satisfy the prescribed conditions of the Companies Act. Winding up provisions cannot be used as a pressure tactics to recover an alleged debt for which a normal civil suit is always available to the claimants/creditors. The Supreme Court has always propounded this legal position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the parties, this Court is of the opinion that the petitioning-creditor has to satisfy the Court that the debt on which the petition is based was due and payable on the date of the petition. Certainly a time barred debt cannot be the basis of a winding up petition. However, admission of a debt either in a balance sheet or in the form of a letter duly signed by the respondent, would amount to an acknowledgement, extending the period of limitation. Section 18(1) of the Limitation Act, 1963 incorporates the said principle. Section 18(1) of the Limitation Act, 1963 reads as under:- "18. Effect of acknowledgment in writing. (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed." 14 . The Allahabad High Court in the case of Fortis Financial Services Ltd. v. K.H.S.L. Industries Ltd . [1999] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it is used in Section 60 CPC. Ordinarily, "debt" means money that is owed; an existing obligation to pay a certain amount; a sum of money due from one person to another. Debts can be classified, having regard to the criteria for payment, into three categories: ( i ) debt which has become due and is payable at present (debitum in praesenti) .. ( ii ) debt which has become due but is payable at a future date (debitum in praesenti solvendum in future) .. ( iii ) contingent debt which becomes payable on the happening of a certain event which may or may not occur " 20 . A similar definition of 'debt' was enunciated by the Supreme Court in Kesoram Industries Cotton Mills Ltd. v. CWT , AIR 1966 SC 1370, with respect to Section 2(m) of the Wealth Tax Act, 1957 and followed in CIT v. Lucas T.V.S. Ltd. [2001] 117 Taxman 366 (SC). 21 . The concept that share application money is trust money gathers strength from Sections 69 and 73 of the Act in so far as the said Sections provide that all monies received by a public limited company towards allotment of shares have to be deposited in a separate bank account and if the allotment is not made within the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
