Calcutta High Court
M/S. Prowess International Pvt. Ltd vs M/S. Shyam Steel Industries Ltd on 19 April, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Siddhartha Chattopadhyay
OD-26
APO No. 147 of 2017
ACO No. 152 of 2016
ACO No. 153 of 2016
CP No. 668 of 2016
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
M/S. PROWESS INTERNATIONAL PVT. LTD.
Vs.
M/S. SHYAM STEEL INDUSTRIES LTD.
Appearance
Mr. Akhilesh Kr. Shrivastav, Adv.
Ms. P. Dhacholia, Adv.
Ms. Manju Bhuteria, Adv.
Mr. Roshan Sengupta, Adv.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
AND
The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY
Date : April 19, 2017.
The Court : In view of the good grounds shown, the marginal delay
in preferring the appeal is condoned. ACO No. 152 of 2016 is allowed
without costs.
The appeal is completely frivolous and devoid of merit. The appeal
arises from an order dated September 21, 2016 by which the appellant's
petition for winding up the respondent company was permanently stayed
on the ground of limitation.
A copy of the petition has been appended to the appeal papers. It appears therefrom that a claim of Rs.44,73,178/- was carried to the 2 Company Court. The table made out at paragraph 6 of the company petition indicated the dates of supply of the goods and the last of the dates was February 2, 2012. At paragraph 10 of the petition, it was asserted that the last payment made by the company to the appellant herein was on May 11, 2012. The company petition was filed in the year 2016. The statutory notice was replied to on behalf of the company and it was asserted that the petitioner's claim could not be pursued as it was barred by limitation.
At paragraph 18 of the company petition, the appellant herein claimed that the audited financial statements of the respondent company for the financial years ended March 31, 2013, March 31, 2014 and March 31, 2015 had "acknowledged the aforesaid dues of the petitioner...".
The appellant could not demonstrate from the relevant financial statements or balance-sheets that the debt of the appellant was acknowledged or even alluded to in such records. The appellant refers to a judgment reported at AIR 1962 Cal 115 (Bengal Silk Mills Co. (In Liquidation) vs. Ismail Golam Hossain Ariff) for the proposition that the acknowledgement of dues to creditors evident from a balance-sheet would suffice and an individual creditor did not have to demonstrate the acknowledgement of the debt of such creditor for the purpose of the Limitation Act. The appellant also refers to Section 41 of the Income Tax Act, 1961.
Paragraph 11 of the Division Bench judgment relied upon by the appellant refers to an acknowledgement of debt to be distinct from a promise to pay the debt and an acknowledgement in the balance-sheet 3 being regarded as an acknowledgement within the meaning of Section 19 of the Limitation Act, 1908. It is evident from paragraph 3 of the report that the creditor's name appeared in the relevant balance-sheets and the Court observed that each of the acknowledgements amounted to an "admission that a certain sum was a debt owing by the company as on November 30 of the preceding year." The ratio in that case was not that when the balance-sheet of a company revealed that debts were due to creditors in general without indicating any creditor in particular, all creditors could cite the same as an acknowledgement for the purpose of saving limitation.
Section 41 of the Act of 1961 obliges an amount not paid to a third party to be recorded as a profit in the hands of the assessee for income-tax to be assessed thereon. It is not appreciated how such provision has any manner of relevance in the present context.
There is no doubt that for an acknowledgement within the meaning of Section 18 of the Limitation Act, 1963, as long as it is in writing, it would do. The writing need not be addressed to the creditor and may be a writing addressed to a third party wherein the acknowledgement is recorded but the identity of the creditor and the acknowledgement of the indebtedness, without even the quantum being specified, must be evident. In other words, for an acknowledgement to be held against a person, such person should acknowledge the debt due to another, such acknowledgement must be in writing and the acknowledgement need not specify the quantum of the debt.
4
The company petition carried by this appellant to the Company Court was ex-facie barred by limitation save the assertion in paragraph 18 thereof that the company had acknowledged its liability in the balance- sheets for the three relevant financial years. Copies of the balance-sheets appear to have been appended to the petition, but nothing from the balance-sheets identified the appellant as a creditor whose debt had been acknowledged to be due by the respondent company.
The order impugned, in the circumstances, does not call for any interference. The petitioner had no claim to carry before a Company Court for winding up the respondent.
APO No. 147 of 2017 and ACO No. 153 of 2016 are dismissed with costs assessed at 200 GM to be paid to the respondent.
(SANJIB BANERJEE, J.) (SIDDHARTHA CHATTOPADDHYAY, J.) sg.