TMI Blog2013 (4) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... echnology company involved in the field of archiving and data conversion from analog to digital mode. The respondent company has its registered office at Chennai and it also has a corporate office in Bangalore. The respondent company has international presence in the United States of America, Singapore and Australia. 4. It had been further stated that, in the year, 2003-2004, the respondent company was desirous of promoting its sales and for making its presence in the United States of America. The petitioner possessed the necessary marketing expertise and the know-how and he had a high reputation and credibility in the information technology industry in the United States of America. Therefore, the respondent company had sought the services of the petitioner, as a consultant for the respondent company. Accordingly, the respondent company had engaged the petitioner, as a consultant, by executing a Consulting Agreement, dated 21.5.2004. Under the said agreement, the respondent company had appointed the petitioner, as a consultant on a non-exclusive basis and had required him to market the respondent company's services, as listed therein, in the regions of North and South Americ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by the Chairman/Managing Director of the respondent company and it had been faxed to the petitioner, on 6.4.2005. In spite of the signing of the promissory note, the respondent company had failed to make the payments to the petitioner. The petitioner had sent several representations and had made several requests to the respondent company to clear the dues. However, there was no response from the respondent company. Initially, the petitioner had issued a legal notice to the respondent company, on 22.2.2008, demanding the payment of the amount due to him, under the promissory note, along with the interest of 1.5% per month. The legal notice had been received by the respondent company, on 29.2.2008. On receiving the legal notice the Managing Director of the respondent company had contacted the petitioner. An E-mail, dated 1.4.2008, had been sent on behalf of the respondent company requesting the appellant to settle for an amount of US $ 1,00,000/-, to be paid in three or four phases. The Managing Director of the respondent company had accepted and acknowledged that the promissory note was issued to the petitioner in good faith and that the respondent company had intended to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the E-mail, dated 1.4.2008, the respondent company had admitted the existence of the Consulting Agreements entered into between the petitioner and the respondent company. She had also submitted that the respondent company had agreed to pay the remuneration, as per the said agreements. Having agreed to pay a sum of US $ 10,460, to the petitioner, the respondent company is bound to pay the said amount. Further, the respondent company had also admitted their liability and had agreed to pay a sum of US $ 1,40,000, as full and final settlement of the remuneration payable to the petitioner. Accordingly, the respondent company had executed a promissory note for the said amount, on 31.3.2005, and had sent the same through fax. The promissory note was also given as a security for the amount payable by the respondent company. The respondent company had also admitted its liability, by way of an E-mail, dated 1.4.2008, wherein the respondent company had admitted the execution of the promissory note. As the respondent company had failed to make the payment, despite the statutory notice issued to it, it is liable to be wound up. 11. The learned counsel appearing on behalf of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the personal decree should not have been granted because it was barred by limitation. The basis for this contention is that the payment of ₹ 25/-, which has been acknowledged on the registered mortgage deed, was not itself by a registered endorsement and, therefore, the plaintiff was entitled to a period of three years only, even if Section 19 may given an extension of limitation. We see no merit in this contention. The function of Section 19 is to provide a later date to count the period of limitation afresh, and that fresh period of limitation will be computed from the time when the acknowledgment was signed. Nothing turns on whether the acknowledgment is itself registered or not. The office of Section 19 being to postpone the date of reckoning limitation and not to create a different substantive period of limitation, the later depends upon appropriate article of Limitation Act which applied to the suit, in this case the mortgage document was registered and the personal covenant was contained in the registered deed. Therefore, Article 116, which gives a period of six years applies. Thus, the fresh period of limitation will be six years and it has to be counted from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledge judgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of such due amount stands suspended. It is only if the debtor fails to honour his promise to make payment on the consented date that the cause of action will arise afresh or revive in favour of the creditor. The respondent though acknowledged its liability on 31.08.1998 but it was preceded with a promise to make the due payment by way of four installments, commencing from September, 1998 onwards. The cause of action that arose in favour of the petitioner was in September, 1998 only when the respondent failed to pay the first agreed installment. [24]. Since the respondent-Company volunteered to split its debt liability in four parts and promised to pay each part of the due amount on different future dates and since none of the part was contingent or subject to or dependent upon the previous part, it appears to me that every default would give rise to a fresh cause of action in favour of the petitioner to the extent of the defaulted installment. .............. [28]. It is equally well settled that the winding-up jurisdiction of a Company Court cannot be invoked for realizing debts due from the Company though a Company in debt can be ordered to be wound-up if it is incapa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n two stages in the same litigation to this extent that a court whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding. 19. The learned counsel had further submitted that the learned single Judge had failed to appreciate the fact that this Court, vide its order, dated 10.6.2011, made in C.A.No.1722 of 2010, and C.A.No.40 of 2011, had held that the E-mail, dated 1.4.2008, would act as an acknowledgment of the liability on the part of the respondent company. However, in the final orders passed by the learned single Judge, he had brushed aside the said observations and had held that the claim of the appellant was barred by limitation. She had further submitted that the learned single Judge had failed to appreciate the fact that the respondent company had not preferred an appeal against the order of the learned single Judge, dated 10.6.2011. As such, the issue relating to the limitation had already been decided by the learned single Judge, in favour of the appellant and therefore, it was not open to him to dismiss the claim of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.Jayna Kothari, Advocate and it had not been addressed to the appellant. As such, the acknowledgment is not valid and it is not enforceable in law. 24. The learned counsel appearing on behalf of the respondent company had relied on the decision, in Kalpana Trading Co., Coimbatore Vs. Executive Officer, Town Panchayat, Thiruchirappalli and another, AIR 1999 Madras 371, to substantiate his claim that, to constitute an acknowledgment of liability there must be an acknowledgment of liability signed by the party against whom such property or right is claimed. Such an acknowledgment must be before the expiry of the prescribed period. Only then a fresh period of limitation would start from the time of the acknowledgment of the liability. 25. The learned counsel had relied on Bajeswari Vs. Jagannath, AIR 1932 Privy Council 55, wherein it had been held that a mere acknowledgment contained in a communication to a third party is not a declaration that could create title. 26. In K.Ganapathy Vs. Vidyalingam, AIR 1971 Madras 425, it had been held that a mere acknowledgment of the execution of the promissory note, without anything more, cannot amount to an admission of a subsisting lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the promissory note embodies all the terms of the contract and the instrument is improperly stamped, no suit on the debt will lie, as it would be barred by Section 91 of the Indian Evidence Act, 1872, and Section 35 of the Indian Stamp Act, 1899. 33. The learned counsel had also relied on the decision of the Full Bench of this court, in Perumal Chettiar Vs. Kamakshi Ammal, AIR 1938 Madras 785, wherein it had been held that no liability would arise based on an instrument, which was improperly stamped. 34. In Ajab Enterprises Vs. Jayant Vegoiles and Chemicals Pvt. Ltd., AIR 1991 Bombay 35, it had been held that a mere deposit of ₹ 20,000/- as a condition, cannot be considered as a valid acknowledgment. 35. As such the appeal filed by the appellant is devoid of merits and therefore, it is liable to be dismissed. 36. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned, and in view of the records available, and on considering the decisions cited supra, it is noted that the learned single Judge, in his impugned order, dated 29.6.2012, made in C.P.No.2 of 2009, had held that the promissory note produced by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced to US $ 1,40,000. Only thereafter, the respondent company had issued a promissory note, dated 31.3.2005, promising to pay US $ 1,40,000 to the appellant, before 31.10.2005, without interest. Thus, it could be seen that the amount of US $ 1,40,000 had become due and payable by the respondent company, on 31.10.2005. Further, on a perusal of the promissory note, dated 31.3.2005, it could be noted that, if the agreed amount was not paid by 31.10.2005, interest would accrue to the amount payable, on a monthly basis, at the rate of 1.5%. As such, the respondent company was at liberty to make the payment of the agreed amount of US $ 1,40,000, before 31.10.2005. Accordingly, the period of limitation, with regard to the amount payable to the appellant, by the respondent company, would start running from 31.10.2005 and not from 28.3.2005, as held by the learned single Judge. 39. It is not in doubt that an E-mail, dated 1.4.2008, had been sent by the respondent company, acknowledging its debts, as required under Section 18 of the Limitation Act, 1963. As the acknowledgment of debt had been made by the respondent company, before the limitation period of three years from 31.10.2005 was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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