SANJIV KHANNA, J. (ORAL):

This intra-Court appeal impugns order dated 7th December, 2012 passed by the Company Court dismissing the winding up petition under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 (Act, for short) on the ground that the claim was based on the debt, recovery of which is barred under the law of limitation. 2. In the grounds of appeal, it is averred that the Limitation Act, 1961 does not apply to a winding up petition under Section 433(e) read with Sections 434 and 439 of the Act. The contention is legally untenable and has to be rejected. Section 433(e) and Section 434(1)(a)of the Act read as under:

“433. Circumstances in which company may be wound up by Tribunal.—A company may be wound up by the Tribunal,— (e) if the company is unable to pay its debts;

434. Company when deemed unable to pay its debts. — (1) A company shall be deemed to be unable to pay its debts— (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding [one lakh rupees] then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;” (emphasis supplied)

3. Section 433(e) is applicable in case a company is unable to pay its debt. A debt will be something which a person is obliged to pay. A right which can be enforced in law. Section 434(1)(a) incorporates a deeming provision. It creates a fiction which gets attracted in case a creditor serves a notice as stipulated in sub-clause (a). The requirement of the said clause that the company in question should be indebted in the sum of Rs.1 lac then due and requires the said company to pay the sum so due and in case the company neglects to pay the sum etc. within three weeks, a winding up petition under the deeming clause is maintainable. In Niyogi Offset Printing Press Limited versus Doctor Morepen Limited, (2009) 149 Company Cases 467 (Delhi), a similar contention was raised as is apparent from paragraphs 13 and 14:

“13. Perusal of the provisions of the Companies Act, 1956 reflects that no limitation is provided for filing the Company Petition under Section 433 or 434 of the Companies Act. However, while considering the application of the creditor for winding up of a company on the ground that the company is unable to pay its debt what is to be seen whether the debt claimed by the creditor is within time or not and if the claim of the debt by the creditor is not within time whether the Company Court should initiate the process of winding up of company who has declined to pay a debt which is not within time.

14. Since no period of limitation is provided in filing the winding up petition, therefore, the application of the petitioner seeking condensation(sic) of delay in filing he winding up petition after the winding up petition filed in the High Court of Himachal Pradesh at Shimla was returned as not maintainable, the present petition can be filed by the petitioner.”

4. What is stated in the said paragraphs is that no period of limitation has been prescribed under the Limitation Act for filing of a winding up petition. However, Section 433(e) stipulates that a winding up petition is maintainable when a company is unable to pay the debt which is due and payable. We have already interpreted Section 434(1)(a), which incorporates the deeming provision. The debt should be one which is legally recoverable and is not barred under the law of limitation. In Niyogi Offset Printing Press Limited (supra), in paragraph 27, it was accordingly held as under:

“27. The claim of the petitioner for recovery of the amount has become barred by time. If the petitioner files a suit for recovery of the said amount, the suit will be dismissed as barred by time. If t