A. K. GANGULY, J.

( 1 ) THIS company petition has been filed by M/s. Garodia Hardware Stores, a registered partnership firm under the Indian Partnership Act, 1932 against Rameshwar Prosad Kejriwal and Sons Ltd. , a company incorporated under the provisions of Companies Act, 1956 as a private company limited by shares. The case of the petitioning creditor is that for the default of payment in Hardware and allied goods, the petitioning creditor filed a suit against the said company being Money Suit No. 13 of 1994 in the Court of Assistant District Judge, Golaghat (Assam) for the recovery of the prices of goods sold and delivered. On 10th February, 1997 the said money suit No. 13 of 1994 was decreed by the Assistant District Judge, Golaghat (Assam) against the company for an amount of Rs. 76,653/- with costs pendenti lite and future interest at the rate of 18% per annum and also for Rs. 6,881. 90p. as the costs of the suit. According to the calculation given by the petitioning creditor in para 8, a sum of Rs. 1,77,218. 90p is still due and payable by the company to the petitioning creditor. The case of the petitioning creditor is that despite repeated reminders, the company failed and neglected to make the payment. As such the petitioning creditor gave a statutory notice of demand dated 26th February 2001 demanding the said sum of Rs. 1,77,218. 90p together with interest @ 18% per annum. The company duly received the said statutory notice.

( 2 ) IN this matter, the learned counsel appearing for the company, without filing any affidavit, has raised certain preliminary objections on the maintainability of the winding up petition.

( 3 ) THE learned counsel submitted that from the documents annexed to the winding up petition it appears that the said money suit was instituted in 1994 as the company refused to pay the price of the goods sold and delivered to it by the petitioning creditor in 1992. From the judgment delivered in the suit, which is annexed to the petition, it appears that goods were last supplied on 30th April, 1992 and the lawyer's notice was sent on 29th September 1992. Therefore, according to the learned counsel the cause of action of the petitioning creditor arose in 1992, the suit was filed in 1994, the decree was obtained in 1997 and in respect of the same cause of action of 1992 statutory notice was issued in 2001 and the winding up petition was filed in 2001. Therefore, according to the learned counsel for the company the petitioner without executing the decree is trying to have the same executed through this winding up petition but the same is not permissible in view of the admitted time lag.

( 4 ) THE learned counsel for the company highlighted the fact here cause of action admittedly arose out of alleged supply of goods and admittedly goods were last supplied on 13th April 1992 and the instant winding up petition has been filed before this Court on 30th March 2001. The learned counsel submitted that if it is assumed that the cause of action of the petitioning creditor has merged with the decree, the said decree is dated 10th February 1997. Even then this instant winding up petition is barred by limitation. In support of the said contention, the learned counsel initially relied on two decisions. The learned counsel relied first on the decision reported in the case of Mazboot Packers and Engineers Company v. Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. , reported 95 Company Cases 579. In that case it was held that the dispute whether the security was deposited by the petitioner company with the respondent company and whether the same had been validly forfeited by the respondent company cannot be decided in a summary proceeding like winding up. Apart from that in the said case, it was also decided that the winding up petition was filed on 3rd November, 1997 which is after the expiry of the period more than six years from the date of refusal by the respondent company to refun

Click Here to Read the rest of this document