TMI Blog2003 (2) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The application seeks ten days time to make payment of Court-fees. This time has already expired. Mr. R. P. Sharma, learned Counsel, however, prays that time be extended to make payment of the Court-fees. Mr. Sharma submits that even if the decision goes against the plaintiff, the plaintiff intends to prefer an appeal, time to make payment of Court-fee is extended up to 25th January, I.A. 33/03 is allowed in the above terms. 3. plaintiff has moved similar application, I.A. No. 36/03 in Suit No. 3/2003 seeking extension of time to make payment of the court-fee. Here also the period for which extension was sought has expired. Mr. Sharma submits that further one week's time be granted to pay the Court-fees. Mr. Sharma states that even if the decision goes against the plaintiff, he intends to prefer an appeal. The application is allowed. Time up to 25th January, 2003 is granted to the plaintiff to pay the Court-fees. 4. At the very threshold, it may be noticed that the plaintiff is seeking to recover monies relating to services provided for advertisement and display boards and other allied services rendered by the plaintiff to the respective defendants in these five suits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Anil Pratap Singh Chauhan and one Baldev Raj Sachdeva had joined as partners and carried on business under the name and style of Angad Communication India. The said partnership concern had been dealing with the products of 'Onida' Group of Companies. The plaintiff claims that the said partnership firm was dissolved on 17-12-1990. A dissolution deed was duly executed. As a result of the dissolution, the plaintiff took over the business of advertisement and display of hoardings and carried out the same under the name and style of M/s. Angad Communications (India) as a sole proprietor. (ii) Mr. Baldev Raj Sachdeva, another partners, set up three concerns, namely, Angad Panasonic Pvt. Ltd., Angad Electronics and Angad Enterprises. Baldev Raj in these concerns was dealing with the distribution and marketing of the electronic and TV Products of Onida group of companies. It is claimed that the plaintiff had nothing to do with the sale, distribution or marketing of the products of Onida group of the companies, as he was dealing only with the advertisement and display of the hoardings of the Onida group of companies. He had nothing to do with the actual sale of the Onida produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Company Judge Therefore held that there was a bona fide dispute raised by the defendants who had claimed adjustment and amounts being owed by Angad Panasonic and Angad Electronics and Angad Enterprises, etc. Mr. Sharma seeks to explain that the aforesaid letter had been written by the plaintiff under pressure to somehow secure his payments. In any case, in my view the aforesaid facts urged by way of background by the learned Counsel would not be determinative of the issue regarding the applicability or otherwise of Section 14 of the Limitation Act, for exclusion of time. Mr. Sharma submits that the plaintiff was bona fide pursuing his remedy in an improper forum by filing company petition and the time spent in pursuing the said remedy should be excluded. He submitted that time spent in pursuing the said remedy should be excluded on the analogy of exclusion of time, as made applicable in arbitration cases, where despite non-applicability of the Limitation Act, 1963 to arbitration proceedings, the time taken in pursuing those proceedings has been excluded for the purpose of institution of a suit and computing the period of limitation therefore. He placed reliance on Ramdutt Ram K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Punjab High Court to submit that the time spent in pursuing the winding up petition before the company court, should be excluded under Section 14 of the Limitation Act. 13. As noticed earlier, the amount being claimed under these five suits are in respect of invoices raised between 1992 to 1996, it is admitted position before me that unless the period during which winding up petitions relating to the subject-matter of the respective suits were being prosecuted is excluded for the purpose of limitation, the five suits would be barred by limitation. This is the position even if the plaintiffs were to receive the benefit of an extension of limitation by the TDS certificates being treated as acknowledgement of liability extending limitation. The net position is that unless the period during which the winding up petitions were pending is excluded, the suits would still be barred by limitation. 14. The question, Therefore, to be considered is whether the period spent in pursuing the winding up petition is liable to be excluded or not?. The submissions made by the learned counsel for the plaintiff have already been noted and his reliance has been on Chalisgaon Shri Laxm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 14 of the Limitation Act is that the time spent on earlier proceedings should relate to the same matter which is in issue in the suit. If it was otherwise, exclusion of time would not be permitted, in the instant case, the subject-matter of the winding up petition would be the prayer for winding up of the company for its inability to discharge legitimate debts. while the suit is for recovery of money damages owed to the plaintiff. A learned Single Judge in Diwan Chand Kapoor v. The New Rialto Cinema Pvt. Ltd., reported at (1985) 28 D L T 310 very succinctly summed up the legal position as regards the nature of action in a winding up petition and that of eventual suit that may be filed and applicability of Section 14 of the Limitation Act for exclusion of time. It was observed that, Filing of a winding up petition is not analogous to filling a suit. Section 14 of the Limitation Act would also be of no assistance to the petitioners because the petitions for winding up and the eventual suit for which cause of action may be claimed could not be said to relate to the same matter in issue. The object of winding up petition is to have the company wound up. Winding up petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to anything communicated (connected) with the jurisdiction of the Court or some other defect of a like nature. Where Therefore, the party failed in the earlier proceedings on merit and not on defect of jurisdiction or other causes of a like nature, it would not be entitled to the benefit of Section 14 of the Limitation Act. The Supreme Court again in Deena v. Bharat Singh [2002]SUPP1SCR289 while noticing the precondition in application of Section 14 and laying emphasis on the earlier proceedings having been prosecuted the due diligence and good faith reiterated that the words or other cause of a like nature are to be construed ejusdem generis. The Court observed Obviously Section 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it. 16. Let us apply the legal principles enunciated in the foregoing authorities as also the pre-condition, set out before the benefit under Section 14 of the Limitation Act can be claimed. Even in the benefit having in good faith and diligently prosecuting the winding up petition is assumed in favor of the plaintiff, the remaining requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had rejected the claim of the liquidator on the ground that it could not be disposed of summarily in the proceeding by way of claim. It appears that the dismissal or rejection was not on merits rather it was on account of a cause of a like nature as defect of jurisdiction. In any case, it was not a dismissal on merits while the present case is wholly distinguishable. In a later decision of the Bombay High Court in Rajan Products v. Jayant Vegoiles and Chemicals Pvt. Ltd. reported at 1990 (CC2) GJX 0008 Bom, the Court declined to give benefit of Section 14 of the Limitation Act on the ground that the earlier proceedings for winding up of the company had been initiated relying on the judgment of the Supreme Court in Yeshwant Deorao v. Walachand Ramchand. The Court held that in the Company Petition the plaintiffs had asked for winding up of the company and, Therefore, the observations made in the said decision by the Supreme Court definitely would apply and, Therefore, the contention tried to be raised that the plaint tiffs are entitled to the exclusion of time under Section 14 of the Limitation Act cannot be considered as having substance. The Court further held that, even if the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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