A petition for winding up cannot be used as a pressure tactic for recovery of the amount due, if any, and the company court is not meant for settling civil disputes under powers of Sec.433 read with Sec.434 of the Act because it is not a court of original jurisdiction.

M. S. Liberhan, J.

1. The petitioner sought the winding up or the respondent-company, inter alia, contending that the respondent-company is unable to pay the debt amounting to Rs.1,42,675.05 by way of this petition.

2. The brief facts averred in the petition are to the effect that the respondent-company is registered under the Companies Act. The company is running the business of fabrication of bus and car bodies. The petitioner claimed to be supplying the material used for the said purpose from time to time to the respondent-company and further reproduced the accounts up to 1984-85 as brought forward in 1985-86. The confirmation of the statement of accounts by the managing director was averred to be Rs.1,98,783.05 on April 27, 1983. The confirmation of the balance amount claimed was vaguely alleged to be Rs.1,82,675.05 on March 31, 1985, without disclosing as to who confirmed the same. The same amount was brought forward in 1985-86. The petitioner sent a statutory notice under Sec.434 of the Companies Act on March 12, 1987. A petition for winding up was brought in 1987, which was dismissed as withdrawn with permission to file a fresh one, vide order dated November 19, 1987.

3. The respondents, on service of the notice of the petition, denied their liability. They put forth, as part of their defence, that the amount, if any, alleged to be recoverable from the answering respondents has become barred by time and, in accordance with the averments made in the petition, last payment being made on May 22, 1984, and the present petition having been filed on April 30, 1988, the amount of debt has become barred by time from the last date of payment. The period for recovery of the debt was never extended. Further, certain discrepancies in the accounts were pointed out. The confirmation of the accounts at any point of time by any authorised person on behalf of the respondent-company was denied. It was stated that the balance-sheet for the year ending March 31, 1983, contained an overall payment of sundry creditors to the extent of Rs.24,69,106.72 odd but no specific amount has been shown in the said balance-sheet as payable to the petitioner. Similarly, no balance amount has been shown as payable to the petitioner in the subsequent balance-sheet either.

4. The petitioner, in its replication, refuted the defence raised and averred that the Limitation Act is not attracted to the present petition. It was further averred that, since the petitioner was prosecuting its earlier petition under a bona fide plea and since there was a defect in the verification, the same was withdrawn and the period spent in prosecuting the said petition in 1987 should not be taken note of. It was further averred that the respondent-company has admitted its liability earlier as well as in the balance-sheets submitted to the Registrar as well as to the income-tax authorities. It was further averred that the name of the petitioner also figures under the heading of sundry creditors, in the balance-sheets for the years 1983-84 to 1986-87. Further, an up to date account of the petitioner was filed. It may, however, be noticed that the replication is not accompanied by any affidavit in order to support the averments made in it.

5. On the very opening of the arguments, learned counsel for the petitioner urged that the main question involved in the petition is "whether the winding up petition is barred by time" which is a mixed question of law and fact and, therefore, the petitioner be allowed to lead evidence. Since no date for recording the evidence is given and the balance-sheets are in the possession of the respondents in which the debt of the petitioner is reflected, resultantly, the debt of the petitioner having been acknowledged by the respondent-company, the petition is not barred by time. In order to support his submission that the debt admitted in the balance-sheets of the petitioner is acknowledged, the petitioner relied on State Bank of India V/s. Hegde