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TMI Blog2014 (4) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act, 1956 including the power to take charge of all the assets, papers, vouchers and bank account of the Company. c. That pending the hearing and final disposal of this Petition, the Official Liquidator attached to this Hon'ble Court be appointed Provisional Liquidator of the Company viz., M/s. ORG Informatics Limited, with all powers under the Companies Act, 1956; d. That pending the hearing and final disposal of the Petition, the Company by itself, its Directors, servants and agents be restrained by an Order and injunction of this Hon'ble Court from dealing with, disposing off, alienating, encumbering or parting with possession, or from creating any third party rights in respect of the whole or any part of the assets of the Company or any part thereof in any manner whatsoever; e. Ad interim reliefs in terms of prayer (c) and (d) above; f. For costs of the Petition. g. For such further and other reliefs as the nature and circumstances of the case may require. 3. The respondent is a Company incorporated under the Companies Act, 1956 having objects as mentioned in the petition. The petitioner has averred in the memo of the petition that petitioner being serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed on record. The said Company through its advocate replied on 15.11.2011, taken a stand that on account of lack of any privy between the two, the petitioner Company has no right to issue such notice and the earlier payment of US$ 80,947.65 was made at the request of the respondent Company. The said reply is also placed on record. The petitioner, therefore, issued statutory notice through advocate on 11.01.2012 under Sections 433 and 434 of the Companies Act, 1956, which was duly served upon the Company under 'Speed Post with Acknowledgment Due' and under' Registered Speed Post with Acknowledgment due' on 16.01.2012, calling upon respondent Company to make payment of US$ 371,019.00, equivalent to INR 1,91,99,973.53. The petitioner has made the averments in paragraph Nos.11 and 12, which reads hereunder; 11. The petitioner states that there is now due and payable by the Respondent Company to the petitioner, a sum of US$ 371,019.00 together with interest at the rate of 12% p.a. on the said amount of US$ 371,019.00. The admitted dues of US$ 371,019.00 along with interests calculated at 12% till 31st of December, 2011 comes US$ 583,806.00 which is equivalent to INR 3,08,71,661. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. On the strength of these documents, it was urged that the plea and stand of the respondent Company, as could be seen from their affidavit to suggest that the respondent Company was to pay only on it receiving the amount from the other Company on account of the project is of not much substance as the said documents which are at page nos.108, 125 and 127 would no way indicate that there was any such condition expressed or acknowledged by either of the parties to the contract and, therefore, when there were resolutions, three in numbers placed on record, the respondent Company did not have any valid reason for resiling out of its obligation for making payment. 6. Learned counsel for the petitioner thereafter invited this Court's attention to all the three resolutions passed by the respondent Company's Board and contended that the resolution and the minutes of the meeting passing the resolution would clearly indicate that there was a clear acknowledgment of the obligation and debt, which could not have been avoided as could be seen from the reply of the respondent Company. The plea of time bar is also not available as the counsel relying upon Section 18 of the Limitation Act rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of and believing the representations made by the said Respondent Company as true and correct. In the Project, the Petitioner had been supplying directly to the Respondent Company the Internet Policy Server Software. The Petitioner had completed the supply services in the month of August, 2008 which were accepted by the Respondent Company unconditionally, which in turn sold off the products and appropriated the payments. On the phraseology of this as well as the exchange of e-mails, which were extensively relied over to the Court, which have produced on record from page Nos.131 to 141 and also at page Nos.82 to 88. A submission was made that a close perusal of all these correspondences would clearly lend support to the submission canvassed on behalf of the respondent Company that the defense taken up cannot be said to be a frivolous or subjected to a summary proceeding. Those correspondences exchanged would clearly indicate that even the petitioner was aware and was in fact goading the other players (so to say) in realizing its dues and therefore, only those e-mails exchanges are to be viewed from that angle which will certainly pursue this Court to hold that there exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany to make payment. Assuming for the sake of argument without conceding that there exists crystallized liabilities, then also in view of the plea of time barred taken up coupled with the language of resolutions, this Court may not permit petition to be carried out further so as to result into initiation of winding up proceedings, at this stage. 12. In view of the aforesaid discussions, the Court is of the considered view that the provision of Section 18 of the Limitation Act read with Sections 194 and 195 of the Companies Act, needs to be set out hereunder; Section 18 of the Limitation Act:- 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 fesh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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