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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:23rd August, 2012
+ CO. PET. 331/2009 AND CO. APPL. 950/2009
LAMICOAT INT. P. LTD. ..... Petitioner
Through Mr. Deepak Kumar Vijay, Adv.
versus
M/S GALORE PRINTS INDUSTRIES LTD ..... Respondent
Through Mr. Kamal J.S. Mann, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. The petitioner-Lamicoat International Pvt. Ltd. (hereinafter referred to as the petitioner-Company) seeks winding up of the respondent- Ms. Galore Prints Industries Ltd. (hereinafter referred to as the respondent-Company).
2. The case of the petitioner is that he had supplied Polyester films to the respondent for an amount of Rs. 45,78,900/-; against the supply of these goods adhoc payment of Rs.7,58,232/- had been made in the financial year 2004-2005 against the amount due of Rs. 16,64,130/-. Co. Pet. No. 331/2009 Page 1 of 6 Balance amount of Rs.9,05,898/- was due towards the principal. Admittedly, last payment made by the respondent to the petitioner was on 30.11.2004. Further case of the petitioner is that on 21.07.2006 (page 52 of the paper book) respondent had acknowledged the goods received by the petitioner and given Form 3B No. 205052 for Rs. 29,14,770/-; submission being that this receipt of Form 3B by the respondent on 21.07.2006 has stretched the period of limitation; present petition filed by the petitioner on 20.07.2009 is thus within the period of limitation.
3. Respondent had put in appearance and in view of his averment made in the reply as also the document at page 52 of the paper book, he had been directed to produce the original sales tax form. Today it has been reported that original form is not available with the respondent.
4. Section 3 of the Limitation Act places a statutory obligation on the Court to examine whether a petition is within limitation. In this case in the reply filed by the respondent a preliminary objection has been taken about the maintainability of the petition; submission being that the petition is time barred.
5. Submission of the petitioner on this count is that Form 3B (page 53 of the paper book) and the receipt of the respondent dated 21.07.2006 Co. Pet. No. 331/2009 Page 2 of 6 acknowledging Form 3B (page 52 of the paper book) amounts to an acknowledgment within the meaning of Section 18 of the Limitation Act.
6. This court is not in agreement with this submission of the petitioner. To constitute an acknowledgment under Section 18 of the Limitation Act there must be an admission of the writer that there is a debt owed by him either by the receiver of the letter or by some other person on whose behalf it is received; it must relate to a present subsisting liability; the jural relationship between the parties as a debtor and creditor must be indicated; the intention to admit such a jural relationship must also be present; the underlying intention may be implied and need not be expressed in words; however, in construing the words used in the statement, the surrounding circumstances may also be considered. (see Hansa Industries (P) Ltd. Vs. MMTC Ltd. reported in (113) 2004 DLT 474.).
7. In another judgment of a co-ordinate Bench of this court reported as 168 (2010) DLT 591 titled as Alliance Paints and Varnish Works Pvt. Ltd. vs. Hari Kishan Gupta (Deceased) through LRs., a question arose whether Central Sales Tax Form i.e. the „C‟ form could have been Co. Pet. No. 331/2009 Page 3 of 6 treated as an acknowledgment of a debt to which the answer given was in the negative; it was held that the „C‟ form can at best be treated as an acknowledgment of the goods received and would not fit within the definition of an „acknowledgment‟ as contained in Section 18 of the Limitation Act. The relevant extract of that judgment reads hereinunder:-
"32. Firstly, there is no acknowledgment of a present and subsisting liability. The said form can at the most be treated as an acknowledgment of the goods received under the contract of supply of goods and the price fixed to be paid for them. Whether or not payments were effected thereafter, or any amount remains due or outstanding cannot be inferred from the said „C‟ form in the facts and circumstances of this case. Secondly, no intention to acknowledge a liability can be inferred from the contents of the said „C‟ form. Thirdly, one cannot establish a jural relation of debtor and creditor from the contents of the said „C‟ form. Thus, the essential requirements for a writing to constitute acknowledgment are missing from the document. (also see Hansa Industries (P) Ltd. Vs. MMTC Ltd. 2004 VI AD (DELHI) 222."
8. Learned counsel for the petitioner points out that in the case of Alliance Paints and Varnish Works Pvt. Ltd. (supra), there was no averment in the petition that there was any acknowledgment made by the respondent which was the reason as to why the „C‟ form was not Co. Pet. No. 331/2009 Page 4 of 6 construed as an extension of limitation within the meaning of Section 18 of the Limitation Act; submission being that in the present petition a specific averment has been made in the para 16 that on 21.07.2006 the respondent had acknowledged the debt due to the petitioner.
9. This argument of the petitioner has no force. Even if a submission has been made in the petition that on 21.07.2006 the respondent had acknowledged the debt, this Court has nevertheless to examine and satisfy itself as to whether the document dated 21.07.2006 did in fact constitute an acknowledgement or not.
10. Reliance by the learned counsel for the petitioner upon the judgment reported in AIR 1961 SC 1236 titled as Shapoor Fredoom Mzda vs. Durga Prosad Chamaria and Ors. is misplaced. This judgment in fact lays down the principle which has been noted (supra). Submission of the petitioner that the surrounding circumstances (communications dated 18.03.2005, 10.11.2005 and 20.08.2006 admit of a jural relationship between the parties is a mis-directed argument. These are letters written by the petitioner to the respondent wherein he has sought for his outstanding payments; they do not in any manner fit into the ambit of an "acknowledgment"; they are not circumstances Co. Pet. No. 331/2009 Page 5 of 6 which lead to the inference that the respondent has acknowledged the debt of the petitioner.
11. The receipt of 21.07.2006 by the respondent (even presuming it to be correct although denied by the respondent) only states that Form 3B has been received by the respondent; the whole argument of the petitioner is based on this Form 3B. As noted (supra) this Form 3B does not amount to an acknowledgement.
12. The present petition filed in June 2009 for a debt for which part payment had been made on 30.11.2004 is clearly time barred; it is not maintainable; it is accordingly dismissed.
INDERMEET KAUR, J AUGUST 23, 2012 rb Co. Pet. No. 331/2009 Page 6 of 6