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TMI Blog2017 (4) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Rs. 50,000/- on 13th July, 2013 in cash. In support of this submission, learned counsel invited my attention to the alleged cash voucher dated 11th July, 2011 and 12th July, 2011 alleged to have been made by the respondent to the petitioner in the sum of Rs. 16,000/- and Rs. 18,000/- respectively. 3. It is submitted by the learned counsel that since the respondent did not pay the balance amount to the petitioner, the petitioner issued notice on 11th February, 2012 to the respondent calling upon the respondent to pay the sum of Rs. 32,98,552.76 ps. He submits that in response to the said notice of demand, the respondent called upon the petitioner to supply various documents, though the same were already supplied by the petitioner to the respondent vide letter dated 23rd February, 2012. 4. The petitioner thereafter issued a statutory notice on 1st May, 2012 at the office address of the respondent calling upon the respondent to pay the sum of Rs. 24,01,125/- with further interest thereon. The petitioner filed a winding up petition bearing Company Petition (Lodging) No.569 of 2012 in this Court against the respondent. On 12th February, 2012, this Court recorded the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "B", the petitioner has shown alleged part payment of Rs. 50,000/- on 13th July, 2011. 9. Learned counsel for the respondent invited my attention to the affidavit in reply and in particular paragraph 3 thereof raising an issue of limitation by the respondent. He submits that the said payment received by the petitioner on 12th January, 2011 was in respect of different transaction and not in respect of the transaction which is the subject matter of this company petition. He submits that even the alleged said voucher annexed at page no.50 of the company petition are dated 11th July, 2011 and 12th July, 2011, whereas in Exhibit "B", the date of the alleged part payment is dated 13th July, 2011. He submits that there is no rejoinder filed by the petitioner to the averments made by the respondent in the reply. He submits that since on the date of filing of the company petition, the claims made by the petitioner were barred by law of limitation, the petitioner ceased to be a creditor of the respondent and thus this Court cannot entertain this company petition. In support of this submission, learned counsel invited my attention to the judgment of the Division Bench of this Court in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner in rejoinder submits that the respondent was fully aware when the respondent had received the notice of demand dated 11th February, 2012 that the petitioner was demanding the sum of Rs. 32,98,552.76. He submits that the respondent did not give its any other address to the petitioner. He submits that since the packet was returned with the endorsement "left", the said service was a good service and thus the company petition filed by the petitioner is maintainable. 14. Insofar as the issue of limitation is concerned, it is submitted by the learned counsel that the respondent has admitted in the affidavit in reply that part payment of Rs. 50,000/- was made by the respondent to the petitioner however, has alleged that the same was relating to a different transaction. He submits that the defence raised by the respondent is not bonafide defence and thus the petition deserves to be admitted. 15. I shall first deal with the issue of limitation raised by the respondent. A perusal of the averments made in the petition indicates that according to the petitioner, the transactions between the parties were during the period between 2006 and 2007. It is the case of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy that there was a debt uncertainable or due and payable to him which he could claim. If the claim is barred by law of limitation on the date of filing of the petition, the petitioner ceased to be the creditor and thus the company petition is not maintainable. In my view the judgment of this Court in case of Modern Dekor Painting Contracts Pvt. Ltd. (supra) would squarely apply to the facts of this case. In my view, since the claim of the petitioner was barred by law of limitation on the date of filing of the petition, the petitioner ceased to be the creditor of the respondent and thus could not file this petition. 19. Insofar as the submission of the learned counsel that the petitioner has already filed the company petition in the year 2012 but the same was required to be withdrawn in view of the petitioner not having been issued a statutory notice at the registered office of the respondent company is concerned, in my view the said petition which was filed without issuing a statutory notice at the registered office of the respondent would not save limitation. The letter dated 23rd February, 2012 addressed by the respondent calling upon the petitioner to furnish certain details w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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