Delhi High Court
Jagatjit Brown Forman (India) ... vs Mohit Singh on 1 November, 2010
Author: Sanjiv Khanna
4.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.APPL.(C) 12/2008
JAGATJIT BROWN FORMAN (INDIA)LTD. ..... Petitioner
Through Nemo.
versus
MOHIT SINGH ..... Respondent
Through Ms. Purnima Sethi, Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 01.11.2010
1. The Official Liquidator has filed this petition on behalf of Jagatjit
Brown Forman (India) Limited, company under liquidation for recovery
of Rs.7,37,965/- with interest from Mr. Mohit Singh, F-1-2, Licencee
C/o Shipra Motel and Resort Limited.
2. After service, response/reply dated 25th August, 2009 has been
filed. It is stated in the reply that the supplies were in fact made to
Shipra Motel and Resort Limited, whose name was subsequently
changed to Shipra Motel and Restaurants Limited and then to Shipra
Hotels Limited with effect from 30th May, 2007. It is admitted in the
reply that the company under liquidation used to supply 'Indian made
foreign liquor' to the respondent but the last supplies were made in the
year 1998-99. Thereafter, some payments were made by the respondent
to the company under liquidation in 1999-2000 and at the end of the
financial year 2000, i.e., 31st March, 2000 sum of Rs.7,29,011.62 was
due and payable to the company under liquidation. It is stated that after
1999, representative of the company under liquidation stopped coming to
C.A.(C) No. 12/2008 Page 1
the premises of the respondent and this amount was written off on 31 st
March, 2002. The defence raised is that this claim is now barred by
limitation. No other defence has been raised.
3. In view of the stand taken in the reply, it is directed that the name
of the respondent will be read as Shipra Hotels Limited and this order is
being passed against them.
4. After filing the said reply, the Official Liquidator and the
respondent had filed affidavits by way of evidence but subsequently the
respondent stopped appearing and the witness of the Official Liquidator
was not cross-examined.
5. The Official Liquidator has proved on record accounts of the
company under liquidation, which includes account of Mohit Singh c/o
Shipra Motel and Resorts Limited, now known as Shipra Hotels Limited
and the amount payable. He has also proved on record the debtors list,
ledger as well as the notice for demand dated 13 th September, 2005 and
the said documents have been marked Exhibit PW-1/1, PW-1/2 and PW-
1/3. I need not examine the evidence in detail in view of the clear stand
taken by the respondent in the reply wherein they have admitted that they
were liable to pay Rs.7,29,011.62 at the end of the financial year 31st
March, 2000. The only defence taken by the respondent is that the said
amount was written of on 31st March, 2002 and the claim made by the
Official Liquidator on behalf of the company in liquidation is barred by
limitation.
6. CP No. 439/1999 was filed for winding up of the company under
liquidation on 14th December, 1999. Provisional Liquidator was
appointed by this Court on 19th December, 2003 and the final winding up
order was passed on 12th January, 2005. The present proceedings for
recovery were filed on 20th December, 2007. Section 458A of the
Companies Act, 1956 provides for exclusion of time in computing period
of limitation notwithstanding anything to the contrary in the Limitation
C.A.(C) No. 12/2008 Page 2
Act, 1908, now Limitation Act, 1963. It stipulates that the period from
the date of commencement of winding up to the date on which the
winding up order is passed has to be excluded. It further states that a
period of one year immediately following the date of order of winding up
is to be also excluded. Thus, the period between 19th December, 1999 to
12th January, 2005 has to be excluded. Another period of one year from
12th January, 2005 till 11th January, 2006 has to be also excluded. If we
exclude these periods, the claim made on behalf of the company under
liquidation will be within the limitation period. It is accepted that the
credit balance of Rs.7,29,011.62 was written back only on 31 st March,
2002 and the last part payment were made in 1999. In these
circumstances, the present application is allowed and a decree for a sum
of Rs.7,37,965/- along with interest @ 12% per annum is passed in
favour of the company under liquidation and against the Shipra Hotels
Limited. The interest will be payable by the respondent from the date of
filing of the petition till payment is made.
The application is disposed of.
SANJIV KHANNA, J.
NOVEMBER 01, 2010
VKR
C.A.(C) No. 12/2008 Page 3
