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Karnataka High Court · body

2012 DIGILAW 70 (KAR)

T. v. Anantharaman VS Wintac Ltd.

2012-01-20

B.V.PINTO

body2012
ORDER B.V. Pinto , J.—This Company Petition is filed under Section 433(e) & 433(f) of the Companies Act, 1956 seeking to wind up the Respondent-Company, which is incorporated under the Companies Act, 1956 and having its office at 16/2, OVH Road, Basavanagudi, Bangalore-560 004. 2. It is contended in the petition that the petitioner was an employee of the Respondent-Company and that the Respondent-Company was running its business as per the Memorandum of Association & Articles of Association of the Company after registering itself before the Registrar of Companies at Bangalore. 3. It is stated in the petition that the petitioner was working as Vice President (Technical) of the Respondent-Company from 1.1.1995 to 31.5.1999 and thereafter from June 1999 to June 2001 and from July 2001 to June 2002, the petitioner worked as a part-time employee of the Respondent-Company. The terms under which the petitioner was appointed is as per Annexure 'A' dated 16.7.2001 to the statement of objections filed by the Respondent are as follows:- 1. Your services will be required by the company to advise and handle various technical and legal matters of the company. 2. The above work will be required to be handled at the Corporate Office of the company. 3. You Will be paid a compensation of Rs. 12,500/- per month all inclusive effective 16.7.2001. 4. The time required to be spent by you on the above matters will be to the extent of approximately 4-5 days in a month depending on our needs. 5. In the event you are required to handle any matter for the company outside the corporate office, actual out of pocket conveyance expenses incurred for such work will be reimbursed to you. 6. In the event of any travel expenses required to be undertaken for the company, the same shall be borne by the company at actuals. 7. The tenure of this agreement shall be from 16.7.2001 to end February 2002. 8. This agreement can be terminated by either party giving notice of 30 days. 4. It is contended that the petitioner has not been paid for the period from March 2002 to June 2002 and also a sum of Rs. 20,000/-, which is a consultation fee for the consultation, made with the petitioner. Thus, in all it is his contention that the Company owes a sum of Rs. 57,400/- after receipt of a sum of Rs. 20,000/-, which is a consultation fee for the consultation, made with the petitioner. Thus, in all it is his contention that the Company owes a sum of Rs. 57,400/- after receipt of a sum of Rs. 12,500/-paid by the Company. 5. After receipt of notice, the respondent has filed the Statement of Objections contending inter alia that the claim is time barred. 6. Heard Sri C.K. Nandakumar, learned Counsel for the Petitioner regarding admission and Sri Premnath Rai, learned Counsel for the Respondent. 7. It is contended by the Counsel for petitioner that by letters and e-mails dated 25.9.2007; 18.3.2008; 22.7.2008; 8.9.2008 and 4.10.2008, there has been a clear admission of liability by the Managing Director of the Company by name Mr. S. Jayaprakash Mady and hence having regard to the fact that the Respondent-Company has not paid the admitted debt, the Company may be wound up. 8. It is seen that the date on which the last amount falls due is by the end of June 2002. Hence the Limitation starts from 1.7.2002. According to the Indian Limitation Act, the period of limitation for claiming salary is 3 years, which ends on 30.6.2005. Section 18 of the Limitation Act states that for the purpose of considering the acknowledgement of liability, the acknowledgement of liability should be before the expiry of period of limitation. Whereas in this case, the first letter had been addressed on 22.9.2007 which itself is beyond the period of three years from the date on which the salary of the petitioner was due i.e., from 1.7.2002. 9. In view of the aforesaid legal position, the documents of alleged acknowledgement of liability produced by the petitioner which are dated 25.9.2007 onwards do not constitute an acknowledgement of liability and -therefore, the petitioner has not proved that there is any debt enforceable against the Respondent and hence, the petitioner has not made out any ground under Section 433 of the Companies Act, 1956. 10. Accordingly, the petition is liable to be dismissed and the same is hereby dismissed. 11. In view of the above, CA 145/2009 for appointment of Provisional Liquidator is dismissed as becoming infructuous.