Swapan Kumar Kundu vs Radharani Tea and Estate P. Ltd.

I.P. Mukerji J.

This is a winding up application coming up for admission after filing of affidavits.

The petitioning creditor is a dealer of coal. This claim is on account of unpaid price of coal sold and delivered by him to the company. The exact dates of sale and delivery are not available but the invoices raised with regard to such supply are mentioned in paragraph 6 of the petition. The company had two tea estates. One was Radharani Tea Estate and the other Krishna Kali Tea Estate. In the above paragraph of the petition 34 invoices are mentioned. They relate to supply of coal to Radharani Tea and Estate. In the latter part of the same paragraph, 8 invoices, relating to supply of coal to Krishna Kali Tea Estate are mentioned. According to the petitioning creditor the total price payable to him on account of supply of coal to Radharani Tea Estate is Rs. 9,73,042.69. For such supply to Krishna Kali Tea Estate it is Rs. 2,19,217.05.

On June 10, 2010, a statutory notice was sent by the petitioning creditor to the company u/s 434(a) of the Companies Act, 1956. It made exactly the total claim in paragraph 6 of the petition which is Rs. 11,92,359.74. This notice was replied to by the company by its letter dated August 9, 2010. Without giving any details as to how the claim was paid, the reply to the statutory notice simply stated that the company maintained statements of accounts between the parties and that the petitioning creditor had been paid. Hence, the petitioning creditor did not have any further claim against the company.

In the affidavit-in-opposition various points, in defence to the claim have been taken. They were also urged at the time of hearing of this application by learned counsel for the company. Learned counsel for the petitioning creditor showed me three documents. The first is dated February 7, 2005, signed by the director (secretary) of the company acknowledging that Rs. 9,45,991.74 was due and payable by the company to the petitioning creditor. The second document is similar but dated May 6, 2006, signed by the same person and acknowledging the same amount. The third is dated August 23, 2008, signed by the manager (finance). He was a different person than the one who signed the earlier two documents. There the amount acknowledged was Rs. 9,61,460.74.

Learned counsel for the petitioning creditor substantially relied on these three documents.

Submissions on behalf of the company

Learned counsel for the company attacked the document dated August 23, 2008. He said that the signatory had no authority whatsoever to sign it and that he had left the service of the company when such signature was obtained from him by the petitioning creditor.

Hence, the claim of the petitioning creditor is barred by limitation because the two documents made on February 7, 2005 and May 6, 2006, would not result in extension of time up to November 12, 2010, when this winding up application was filed, to make the claim.

Secondly, he shows me the statement of accounts at page 100 of the petition prepared by the company saying that final payment had been made against Bill No. 209/07-08 dated October 29, 2007. The payment said to be made was Rs. 45,583. Now, the invoice relating to this claim was shown as unpaid in Sl. No. 30 of the invoices relating to Radharani Tea Estate mentioned in paragraph 6 of the petition. He, further submits that the entire claim of the petitioning creditor is not payable according to the defence taken by him in the affidavit-in-opposition. It is also barred by the laws of limitation.

He cites two decisions of the Supreme Court. One is Mediquip Systems Pvt. Ltd. Vs. Proxima Medical System GMBH, He shows me paragraph 25 of that report. He also cites IBA Health (I) Pvt. Ltd. Vs. Info-Drive Systems Sdn. Bhd., He shows me paragraph 31 of the report. These decisions are shown to advance the submission that when a substantial dispute is raised the court should not entertain a winding up application.

Discussion and findings

The only obstacle in the way of admission of the petition, in my judgment, is limitation.

First of all let me deal with the submission of Mr. Basak, learned counsel for the respondent regarding the authority of the signatory of the document dated August 23, 2008. The first document dated February 7, 2005, is an acknowledgment made by the company that it owes the petitioning creditor Rs. 9,45,991.74. This document is not disputed. The second document dated May 6, 2006, makes a similar acknowledgment. That is not disputed. But the third document, the authenticity of which will positively determine whether the claim of the petitioning creditor is barred by limitation or not, is denied. It is said that the person had no authority to sign the document. He was not in the service of the company when he signed this document. The document was procured from this person unauthorisedly.

No one will fail to notice that this document of August 23, 2008, is very similar to the earlier documents in all respects. The amount is nearly similar. It is not very much above Rs. 9,45,991.74. Nothing has been shown to me to suggest that any steps were taken against the signatory of this document or any other steps were taken to avoid it, before filing of the affidavit-in-opposition in this application. Therefore, I do not think that this dispute is at all a bona fide dispute. Therefore, this point is rejected. I come to this conclusion on the basis of Mediquip Systems Pvt. Ltd. Vs. Proxima Medical System GMBH, and IBA Health (I) Pvt. Ltd. Vs. Info-Drive Systems Sdn. Bhd.,

Nevertheless, even if we take the first acknowledgment, made on February 7, 2005, it was made much later than three years of raising the invoices mentioned in Sl. Nos. 1 to 7 pertaining to Radharani Tea Estate mentioned in paragraph 6 of the petition. Those invoices are as follows :

Sl. No.

Challan No. & Date

Bill No. & amp; Date

Amount (Rs.)

1.

SKK/C/01-02/26 dated 27-04-2001

SKK/B/01 -02/19 dated 19-05-2001

40,969.00

SKK/C/01-02/32 dated 03-05-2001

2.

-do-

SKK/B/01-02/20 dated 19-05-2001

16,072.00

3.

SKK/C/01-02/44 dated 17-05-2001

SKK/B/01 -02/41 dated 02-06-2001

20,096.00

4.

-do-

SKK/B/01-02/42 dated 02-06-2001

7,887.00

5.

SKK/B/01-02/119 dated 06-08-2001

SKK/B/01 -02/141 dated 30-08-2001

64,448.00

SKK/B/01-02/120 dated 06-08-2001

SKK/B/01-02/144 dated 27-08-2001

6.

-do-

SKK/B/01-02/142 dated 30-08-2001

20,209.00

7.

SKK/B/01-02/170 dated 20-09-2001

SKK/B/01-02/189 dated 29-09-2001

20,096.00

1,89,777.00

Therefore, the acknowledgment dated February 7, 2005, could not extend the period of limitation for a claim which became barred at the time of making the acknowledgment. Section 18 of the Limitation Act, 1963, stipulates that the acknowledgment has to be made before expiry of such period. Therefore, the subsequent acknowledgments made on May 6, 2006 and August 23, 2008, did not extend the time for those claims.

For similar reasons the claim arising out of invoices relating to Krishna Kali Tea Estate at page 5 of the petition being part of paragraph 6 of the petition is also barred by limitation. The invoices are as follows :

SKK/C/99-00/107A dated 21-02-2000

SKK/C/99-00/108A dated 21-02-2000

SKK/C/99-00/109A dated 22-02-2000

SKK/C/99-00/110A dated 22-02-2000

SKK/C/99-00/117A dated 23-02-2000

SKK/99-99/241

2,19,217.05

SKK/C/99-00/112A dated 23-02-2000

SKK/C/99-00/113A dated 24-02-2000

SKK/C/99-00/114A dated 24-02-2000

Furthermore, I accept the submission of Mr. Basak that the claim for Rs. 45,583 is disputed.

Therefore, on the basis of the above I am able to come to a summary finding that a sum of Rs. 9,61,460.74 as acknowledged in the acknowledgment made on August 23, 2008, less the 7 invoices raised on Radharani Tea Estate and the 8 invoices raised on Krishana Kali Tea Estate, less the invoice amount in Sl. No. 30 at page 5 of paragraph 6 of the petition being for Rs. 45,583 is payable by the company to the petitioner. The calculation is shown below :

Rs.

Acknowledgment amount

9,61,460.74

Less : Disallowed 7 invoices of Radharani Tea Estate

(-)

1,89,777.00

Less : Disallowed invoices of Krishna Kali Tea Estate

(-)

2,19, 217.05

Less : Disallowed invoice (SI. No. 30 page 5)

(-)

45,583.00

Total:

5,06,883.69

The petitioning creditor will also be entitled to interest on the above sum from the date of the respective invoices at 8 per cent. per annum simple interest till the date of this order. The company will also be liable to pay interest at 10 per cent. per annum on the said sum of principal and interest adjudged up to the date of this order till payment.

Considering the submissions made on behalf of the company, the above admitted amount may be paid by the company in 15 equal monthly instalments commencing from July 1, 2011 and payable by the 7th of each month. The first instalment may be paid by July 15, 2011. Any remainder is to be added to the last instalment. In default of payment of any one instalment, the petitioning creditor will have the liberty to apply to this court for leave to obtain a formal order of admission of this application and to make publication of the order and so on. In that event no further case for admission need be established by the petitioning creditor save and except nonpayment of instalments.

Interest may be paid on reducing the balance principal. The claim for Rs. 45,583 is relegated to suit. The other claims have no merit.

This winding up application is, accordingly, disposed of.

Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.