Eskay Impex Pvt. Ltd. vs J.R. Importers
1992 Latest Caselaw 394 Del

ORDER

1. This is a claim filed on behalf of the Liquidator against M/s. J. R. Importers who according to the Liquidator is indebted to company in liquidation to the extent of Rs. 1,91,475.17 as per its books of account. It is stated that notice of demand was sent to the respondent which did not yield any result. The liquidator has also claimed interest on the aforesaid amount at the rate of 12%p.a.which on the presentation of the petition came to over Rs. 3,52,000/-. Notice of this claim was issued to the respondent who did not raise any objection with regard to the limitation but refuted the claim on other grounds. Thereafter the plea of limitation was taken up by the respondents by means of an application under Section 15, C. P.C. The said application is supported by an affidavit of one Mr. R. K. Chakraborty who has sworn the affidavit under instructions from Mr. P. H. Pareekh stated to be the sole proprietor of the respondent. Thus in the present case the respondent happens to be sole proprietary concern which only means Mr. P. H. Pareekh being the proprietor is the real respondent and M / s. J.R. Importers is only an alias for the said proprietor.

2. Subsequently an application for amendment of the reply to the claim with a view to incorporate the plea of limitation was filed being CA 217/ 89 which was also allowed on 8th March, 1989.

3.The plea of limitation has been resisted by the Liquidator who has filed reply and has also filed an application under Section 5 of the Limitation Act, 1963 for condensation of delay. The said application appears to have been filed by way of abundant caution. Mr. Arvind Shukla, the Assistant Official Liquidator has filed an affidavit wherein he has brought out that the proceedings for liquidation of the said company were initiated with the presentation of the winding up petition on 20th March, 1978 and that the company was ultimately wound up vide orders dated 17-9-80.

4. From the correspondence filed by the respondent, I find that said Mr. Pareekh had visited India even in the year 1978-79.

5. The list of documents filed by the respondent describes those letters and documents as signed by Mr. P. H. Pareekh whereas the reading of the documents the name appears to be Parmod R. Pareekh. In view of the fact that the list has been prepared under instructions of the respondent himself and describes the signatures to be of Mr. P. H. Pareekh I take it that these letters which were written on the letter heads of J. R. Importers and filed by the respondent's counsel had emanated from the proprietor himself. In the letter dated June 16, 1979, the said Mr. Pareekh admits of his stay in India in that month. Thus clearly showing that he had been present in India at times subsequent to the initiation of the winding up proceedings also. There is no evidence on record to show that Mr. Pareekh had been in India between 1979 and the filing of the present claim by the Liquidator. Sub-section (5) of Section 15 of the Limitation Act reads as under:

"(5) In computing the period of limitation for any suit during which the defendant has been absent from India and from the territories outside under the administration of Central Government shall be excluded."

6. In the light of the provisions of Section 15(5) of the Limitation Act, I am of the view that the period of his absence from India does ensure to the benefits of the O.L. and in fact should be excluded while computing the period of limitation within which action could be brought. Counsel for respondent in repelling this view has cited various rulings to buttress his contention that the claim of the liquidator is barred by time. He has placed his reliance heavily on the case of Turner Morrison & Co. Ltd. v. Hungerford Investment Trust Ltd; , wherein the Hon'ble Supreme Court had laid down that "the provisions of Section 15(5) of the Limitation Act contemplate the case of the defendant who had been absent from India and had held that the article presupposes that the defendant was present at one time in India and was later absent from India. A person who was never in India cannot be considered as absent from India".

7. The above observation of the Supreme Court does not help the respondent because in the present case as already observed above, the respondent was present in India and had gone away and there is no evidence placed by the respondent on record to the effect that he had been available in India thereafter. The other rulings cited at the bar also does not render any help or assistance to the respondent. I hold that the Liquidator is entitled to the exclusion of time during which the respondent has been absent from India in terms of sub-section (5) of Section 15 of the Limitation Act.

8. I therefore decide the question of limitation against the respondent and in favor of the Liquidator. List this petition for further hearing on 14th July, 1992.

9. Order accordingly.