TMI Blog2013 (2) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was filed was still due and payable and not barred by limitation as the last payment was received by the appellant and made by the respondent on 12th January, 2009. The period of 3 years, therefore, expired on 12th January, 2012. The appellant at best is entitled to exclusion of 301 days for the period between 15th January, 2011 and 11th November, 2011. The company petition before the Delhi High Court was filed on 30th November, 2012 or after 3 years and 323 days (2012 being a leap year). The claim which is made subject matter of the winding up proceedings would still be barred by limitation as the winding up petition in the Delhi High Court was filed belatedly by 22 days. Treating the notice under Section 434(1)(a) as equivalent to Section 80 CPC and to give benefit of Section 15(2) of the Limitation Act would, therefore, lead to analogous and somewhat incongruous situation where the creditor cannot sue a company in civil proceedings as time barred debt but can by invoking the exclusion under Section 15(2) of the Limitation Act, sue a company for winding up of company on account of deeming fiction that the company is unable to pay the same debt. However, need not further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted in case a creditor serves a notice as stipulated in sub-clause (a). The requirement of the said clause that the company in question should be indebted in the sum of Rs.1 lac then due and requires the said company to pay the sum so due and in case the company neglects to pay the sum etc. within three weeks, a winding up petition under the deeming clause is maintainable. In Niyogi Offset Printing Press Limited versus Doctor Morepen Limited, (2009) 149 Company Cases 467 (Delhi), a similar contention was raised as is apparent from paragraphs 13 and 14: 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 limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accounts or in the annual returns, which was filed with the Registrar of Companies. The company petition was, therefore, filed for recovery of a time barred debt. The company petition does not elaborate and state why and for what reason the debt for which the winding up petition was filed was still due and payable and not barred by limitation. 6. Learned counsel for the appellant has submitted that they should be permitted and allowed to file an application under Section 14 of the Limitation Act as the appellant herein had filed company petition for winding up before the Bombay High Court on 15th January, 2011 and the said company petition was dismissed as withdrawn vide order dated 11th November, 2011, which reads as under: At the request of Mr. Pandey, allowed to be withdrawn with liberty to file fresh petition after statutory notice is addressed to the respondent and duly served at its registered office. 7. There are several reasons why we cannot accept the said request. The respondent had filed response to the company petition before the Bombay High Court in the month of June, 2011. In the said reply, they had raised objection to the jurisdiction of the Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been served at the registered office, the appellant waited till November 11, 2011 when the company petition before the Bombay High Court was withdrawn. The period after the filing of the reply by the respondent in June, 2011 till 11th November, 2011, cannot ex-facie be treated or regarded as a period spent in prosecution of the proceedings in good faith. 10. Even if we exclude the entire period between 15th January, 2011 and 11th November, 2011 spent before the Bombay High Court, the winding up petition would be for a claim beyond the period prescribed. As noticed above, the last payment was received by the appellant and made by the respondent on 12th January, 2009. The period of 3 years, therefore, expired on 12th January, 2012. The appellant at best is entitled to exclusion of 301 days for the period between 15th January, 2011 and 11th November, 2011. The company petition before the Delhi High Court was filed on 30th November, 2012 or after 3 years and 323 days (2012 being a leap year). The claim which is made subject matter of the winding up proceedings would still be barred by limitation as the winding up petition in the Delhi High Court was filed belatedly by 22 days. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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