Diwan Chand Kapoor vs New Rialto Cinema (P) Limited
1985 Latest Caselaw 483 Del

JUDGMENT

1. Admit.

2. The learned company judge had dismissed the company petition on the ground that though at the time the company petition was moved, there was an existing debt, but by the time the matter came up before him, the said debt had become time-barred. The learned company judge apparently felt that the crucial date for determining the question of maintainability is not the stage when the application is filed, nor even when a show-cause is issued, but the later stage when an order is being passed by the court.

3. A Division Bench of the Bombay High Court, in an identical matter, considered this point and held that there was nothing in the Companies Act, to the effect, that a petition for winding up which was properly maintainable when filed, ceased to be so maintainable, if at the date of the order, the debt on which the petition was based had become barred by limitations. (See Modern Dekor Painting Contracts P.Ltd. v. Jenson and Nicholson (India) Ltd. (1985) 58 Comp Case 255 (Bom).

4. We allow the appeal, but feel it is unnecessary to give reasons as we are in agreement with the reasons mentioned in the said judgment of the Bombay High Court.

5. As to whether the relief can be granted, in spite of the petition being maintainable, will depend on the facts of the case and this is a different matter and will naturally have to be considered separately in each case. There is no doubt that the court can refuse to grant relief if it feels that the application for winding up has been moved for extraneous reasons and for a collateral purpose.

6. The appeal is allowed, as above mentioned, but we make no order as to cost.