Anil Pratap Singh vs Onida Savak Ltd.
2002 Latest Caselaw 1380 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petition has been filed under Section 433(e) and 434(1)(a) of the Companies Act praying for the winding up of the Respondent Company on the ground that it is indebted to the Petitioner for a sum of Rs. 10,62,022.96 as on 31.8.1997. It has been averred that the statutory notice dated 6.10.1997 claiming the afore-mentioned sum of money, comprising Rs. 6,18,035.00 as the principal sum and Rs. 4,43,987.96 as interest was outstanding against various bills raised for providing adverting services to the Respondent Company by the Petitioner.

2. Admittedly, the statutory notice was duly replied to in terms of the letter dated 27.10.1997. In it, reliance was placed on letter dated 24.4.1995 written by the Petitioner to M/s. Adonis (India) Ltd. which is undisputably a sister concern of the Respondent Company. It reads as follows:-

"Dear Sir,

This has reference to our discussions at your office on 20th April, 1995 regarding the Hoarding sites in Delhi metro. As decided and agreed mutually between you and us, we would like to inform you that we will not accept any sort of deductions or adjustments on our bills beyond 1st April 95 against goods supplied or any outstanding on our sister concerns (such as M/s. Angad Panasonic Pvt. Ltd., M/s. Angad Electronics & M/s. Angad Enterprises).

We will appreciate a line of confirmation on the above to maintain your Hoardings effectively and provide prompt service.

Thanking you and assuring you of our best services at all times.

Your truly,

for angad Communication (India)

Sd/- Anil Pratap Singh Chauhan

Chief Executive.

Despite these statements, Mr. R.P. Sharma Learned Counsel for the Petitioner, has put forward the ipse dixit that the Petitioner has no connection with the other Angad Group of business, on the lines of Paragraph 8 of his legal notice.

3. A perusal of the said letter dated 24.4.1995 will make it abundantly clear that the qualification sought to be recorded therein was that no deductions or adjustments in respect of the Petitioner's Bills beyond 1.4.1995 would be considered. It is a clear admission, otherwise that common claims and adjustments had been regularly made.

4. The commonality in the control and management of the Angad Group of Companies as well as the Respondent Group is also borne out from a Memorandum dated 5.5.1995 issued to Angad Communications, of which the Petitioner claims to be the sole proprietor. This document has been filed by the Petitioner along with the Supplementary Affidavit dated 11.5.2001. The advantage which the Petitioner was seeking to extract from this Memorandum was that the Respondent, had acknowledged liability of a sum of Rs. 43,52,179/-. Even in this Memorandum there is a mention of Angad Panasonic Pvt. Ltd., which company was also mentioned in the letter dated 24.4.1995 along with M/s. Angad Electronics and M/s. Angad Enterprises. Furthermore, the so called admission of liability has been assumed by M/s. Vaka Electronics Pvt. Ltd. Savak Ltd. which is the Respondent Co. in CP No. 61/1998. The Petitioner cannot be allowed to approbate and reprobate. It is palpably Obvious that there are to Groups of Companies on either side and adjustments of claims were to be freely made within the two Groups.

5. Learned Counsel appearing for the Respondents has submitted that four suits have been filed on the Original Side of this High Court in January, 1998 and that the present winding-up petition has been initiated purely as a counterblast thereto and in order to pressurise the Respondent Company into accepting an unjust settlement. It is also contended that a winding-up petition cannot be predicated merely on statement of accounts. Such accounts have to be duly proved by corroborated evidence. Reliance has been placed on Chandradhar Goswami and Ors. v. Gauhati Bank Ltd., . It was observed as follows:

"No person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability there under, except where the person to be charged accepts the correctness of the books of account and does not challenge them.

The original entries alone under Section 34 of the Evidence Act would not be sufficient to charge any person with liability and as such copies produced under Section 4 of the Bankers' Books Evidence Act obviously cannot charge any person with liability."

6. Mr. Nath Learned Counsel for the Respondent has also contended that the claim itself is barred by limitation. It is evident that the first eight entries in the Statement of Account dated 4.9.1997 constitute the debts which were incurred in February 1994. From the pleadings it is clear that the remaining amounts are interest unilaterally charged by the Petitioner. The debt is palpably barred since over three years have elapsed before the filing of the present petition. This question had also been considered in Chandradhar's case (supra). The following passage from the judgment is self explanatory:-

"Then we come to the question of limitation. The suit is clearly within time insofar as the liability for sale under the mortgage-deed is concerned as it was filed within 12 years of the execution of the mortgage (see Article 132 of the Limitation Act of 1909). As to the personal liability under this deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Article 116 ibid). Nor does the entry of payment of Rs. 100 in the accounts help the bank in this behalf. That entry is of no value under Section 19 or Section 20 of the Limitation Act for neither a writing signed by the appellants nor an acknowledgment of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Article 85 of the Limitation Act of 1908 help the bank. Assuming this is a case of an open, current and mutual account, the last payment was made in November 1949. Article 85 gives limitation of three years from the close of the year in which the last item admitted or proved is entered in the accounts, (such year to be computed as in the account). The account in this case shows that the year was calendar year. The mutuality in this case came to an end in 1949 for we find from the account that thereafter there are only entries of interest due to the bank up to October 31, 1952. So the bank would get three years from the end of 1949 under Article 85 and as the suit was filed on April 9, 1953, this entry will be of no help to the bank. We are, therefore, of opinion that the bank cannot get a decree fixing personal liability on the appellants and all that it is entitled to is a decree for sale of the mortgaged property."

7. For these manifold reasons, I am satisfied that a bona fide defense has been put forward by the Respondent. The winding-up petition is accordingly dismissed.