Delhi High Court
Lamicoat Int Pltd vs M/S Galore Prints Industries Ltd on 23 August, 2012
Author: Indermeet Kaur
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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/-.
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
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
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
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
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
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