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Gujarat High Court · body

2014 DIGILAW 994 (GUJ)

Org Informatics Ltd. v. Netsweeper Inc.

2014-09-05

HARSHA DEVANI, SONIA GOKANI

body2014
JUDGMENT : Harsha Devani, J. This appeal is directed against the order dated 03.04.2014 made by the learned Company Judge in Company Petition No.173 of 2012 whereby, the learned Judge has admitted the winding up petition while granting some time to the appellant Company to make good its liability to the respondent Company failing which, further order of advertisement would be passed. 2. The impugned order has been passed in the backdrop of the following facts. M/s Netsweeper Inc. the respondent herein is a Company incorporated under the Companies Act, 1956 (hereinafter referred to as "the Act"). The respondent presented a petition before this court under section 433 and 434 of the Act, being Company Petition No.173 of 2012 seeking the following substantive reliefs: "19. The petitioner, therefore, prays that:- (a)The Respondent Company viz. M/s ORG Informatics Limited, a Company Incorporated under the Companies Act, 1956 and having its Registered Office at 3rd Floor, Abhishek Complex, Akshar Chowk, Old Padra Road, Vadodara - 390 020 be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956; (b) The Official Liquidator attached to this Hon'ble Court be appointed as Liquidator of the Company viz., M/s ORG Informatics Limited, with all powers under the Companies Act, 1956 including the power to take charge of all the assets, papers, vouchers and bank accounts of the Company;" 3. The respondent-M/s Netsweeper Inc. (hereinafter referred to as "the original petitioner" or "Netsweeper") has averred in the memorandum of the petition that petitioner is a leading service provider for the telecom sector and has much acclaim and hegemony all over the world. During the course of its business the appellant Company contacted the original petitioner for supply of Internet Policy Server Software for block websites as per DOT regulation for the BSNL Broadband Multiplay Project (hereinafter referred to as 'the BBMP'), undertaken in Singapore in the month of April, 2007. The petitioner received purchase order and raised invoice for an amount of US$ 1,341,893.00 for Application Software License Fee and Service (Installation and Training) cost. Out of the total amount of US$ 1,341,893.00, the appellant Company made payment of US$ 889,350.00 as on 23.08.2007. Annexure-C to the petition is a statement of the outstanding amount of US$ 452,543.00, which is dated 03.12.2007. Despite repeated requests and reminders, the balance payment did not come forward. Out of the total amount of US$ 1,341,893.00, the appellant Company made payment of US$ 889,350.00 as on 23.08.2007. Annexure-C to the petition is a statement of the outstanding amount of US$ 452,543.00, which is dated 03.12.2007. Despite repeated requests and reminders, the balance payment did not come forward. The appellant Company on account of its own financial constraints had requested the original petitioner to accept the amount due from another company viz., M/s. Spanco Singapore Pte. Limited (hereinafter referred to as "Spanco") for which the requisite resolutions came to be passed on 30.01.2009 and thereafter the amount was to be collected from the said company. A further Board Resolution came to be passed on 11.03.2010, authorising the original petitioner to collect an amount of US$ 80,947.65 out of the total outstanding debt of US$ 452,843.00 from Spanco. Pursuant thereto, on 11.03.2010, the original petitioner received an amount of US$ 80,948.00 directly from Spanco which payment was made on behalf of the appellant Company. The balance payment was covered by one more Board Resolution dated 03.09.2011, authorising Spanco, to make payment of US$ 371,019.00 by the appellant Company to the petitioner. In the context of the said resolution, the original petitioner entered into correspondence with Spanco through various e-mails dated 5th July, 2011, 8th July, 2011, 10th July, 2011 and 26th July, 2011. However, despite protracted exchange of emails, since the amount as agreed was not paid to it, the original petitioner addressed a notice dated 29.10.2011 to Spanco calling upon it to make payment of US$ 371,019.00 in accordance with the Board Resolution of the appellant Company. Spanco, through its advocate replied on 15.11.2011, and took a stand that on account of lack of any privy between them, the original petitioner had no right to issue such notice and that the earlier payment of US$ 80,947.65 was made at the request of the appellant Company. The original petitioner, therefore, issued statutory notice through its advocate on 11.01.2012 under sections 433 and 434 of the Companies Act, 1956, calling upon respondent Company to make payment of US$ 371,019.00, equivalent to INR 1,91,99,973.53, which was duly served upon the appellant Company on 16.01.2012 under 'Speed Post with Acknowledgment Due' and under' Registered Speed Post with Acknowledgment due'. The original petitioner, therefore, issued statutory notice through its advocate on 11.01.2012 under sections 433 and 434 of the Companies Act, 1956, calling upon respondent Company to make payment of US$ 371,019.00, equivalent to INR 1,91,99,973.53, which was duly served upon the appellant Company on 16.01.2012 under 'Speed Post with Acknowledgment Due' and under' Registered Speed Post with Acknowledgment due'. Since there was no response to the above notice, the original petitioner approach this court by way of the petition under section 433 and 434 of the Act seeking the reliefs noted hereinabove. 4. Ms. Megha Jani, learned counsel for the appellant vehemently assailed the impugned order by submitting that the learned Single Judge failed to appreciate the bona fide defence raised by the appellant. It was pointed out that the project in respect of which the purchase was made from the original petitioner, consisted of several players who formed an informal group and worked back to back, which fact is also clear from the averments made in paragraph 5 of the petition. It was submitted that as and when payments were received from the participants, the same were forwarded to the original petitioner, however, the learned Single Judge has failed to take into account the fact that the appellant herein was only one link in the entire chain and since the payment to the respondent-original petitioner was dependent upon the payments made by the former participants in the chain, there is a bona fide dispute regarding the liability of the appellant to make the payment when no money was received from the other participants preceding the appellant in the chain. Referring to the emails exchanged between the Spanco and Netsweeper, it was pointed out that original petitioner- Netsweeper was independently corresponding with Spanco for payment of its dues. It was urged that the emails make it abundantly clear that the money released by IBM to Spanco was in fact a result of follow up and lobbying done by the original petitioner with IBM. It was submitted that the correspondence between Spanco and Netsweeper show that all demands had been raised on Spanco and not on the appellant, which clearly establishes an understanding that amounts were to be paid when the appellant Company received the same from Spanco, who in turn was to receive it from IBM. It was submitted that the correspondence between Spanco and Netsweeper show that all demands had been raised on Spanco and not on the appellant, which clearly establishes an understanding that amounts were to be paid when the appellant Company received the same from Spanco, who in turn was to receive it from IBM. It was submitted that the material on record clearly establishes a nexus between the parties who were participants in the project and hence, the findings recorded by the learned Single Judge are contrary to the record. 5. It was further pointed out that the purchase order was placed on 31.3.2007 and hence the period of limitation for claiming the amount towards the said purchase order would expire on 31.3.2010, whereas the petition for winding up came to be filed on 30th March, 2012, on which date, the alleged debt had become time barred. Reference was made to the provisions of section 18 of the Limitation Act, 1963 to submit that the same would be attracted provided that before the expiry of the prescribed period for a suit or application in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed. Referring to sub-section (2) thereof, it was pointed out that where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed. The attention of the court was drawn to the contents of the three resolutions passed by the appellant on 30th January, 2009, 11th March, 2010 and 3rd September, 2011 to submit that the respondent-original petitioner has placed reliance upon the same for the purpose of contending that the appellant having acknowledged the debt, the period of limitation stands extended. Referring to the resolution dated 30.1.2009 it was pointed out that the same cannot in any manner be construed to be an acknowledgment of liability. As regards the second resolution dated 11.3.2010, it only acknowledges liability to the extent of US $80948.00 which has already been paid. As regards the third resolution, it was submitted that the same is undated and as such in view of the provisions of sub-section (2) of section 18 of the Limitation Act, oral evidence would be required to be led to establish the time when it was passed. As regards the third resolution, it was submitted that the same is undated and as such in view of the provisions of sub-section (2) of section 18 of the Limitation Act, oral evidence would be required to be led to establish the time when it was passed. It was submitted that even if the date suggested by the original petitioner, viz., 3rd September, 2011 were to be accepted, the same was clearly passed after the period of limitation had expired and hence, such resolution would not extend the period of limitation. Moreover, none of three resolutions would amount to acknowledgment of debt on the part of the appellant. It was emphatically argued when the debt itself was time barred; the learned Single Judge was not justified in admitting the petition. 6. Next, it was submitted that the conduct of Netsweeper and Spanco of corresponding directly shows that the project involved several companies who were interlinked and collectively constituted the project and that the payment was to be made by the petitioner subject to receipt of payment from Spanco. It was argued that the Board resolutions passed by the appellant were only with a view to facilitate payment of money to the respondent and such resolutions passed at the request of Netsweeper do not amount to extension of the time limit so as to fall within the ambit of section 18 of the Limitation Act. It was submitted that in fact it was at the instance of the respondent that IBM released part of the funds to Spanco as is evident from the email between the respondent and Spanco. It was urged that in any case this is not a ground on the basis of which a company should be wound up. In conclusion, it was submitted that the matter requires consideration and the appeal deserves to be admitted and the interim order is required to be confirmed. 7. Vehemently opposing the petition, Mr. S.N. Soparkar, Senior Advocate, learned counsel for the respondent-original petitioner submitted that the present appeal is based on a dishonest plea. Elaborating upon such submission the learned counsel drew the attention of the court to the purchase order dated 29th March, 2007 (Annexure-R1) to point out that such order was placed by the petitioner for purchase of the software referred to therein and connected services. Elaborating upon such submission the learned counsel drew the attention of the court to the purchase order dated 29th March, 2007 (Annexure-R1) to point out that such order was placed by the petitioner for purchase of the software referred to therein and connected services. Referring to the invoice dated 31st March, 2007 (page 125) issued by Netsweeper to the appellant, it was pointed out that the payment terms provided that 70% of software and services payment was to be made within 45 days from the date of the invoice and paper licence issued (already to IBM) and that balance 30% was to be paid within 20 days of Netsweeper Internet Policy Service Solutions AT and that the total amount was US$ 1,341,893.00. The attention of the court was invited to the purchase order dated 29th March, 2007 placed by Spanco with the appellant to point out that the consideration to be received by the appellant was US$1,429,593.00. That on a perusal of the above invoice and purchase order it is amply clear that whereas the petitioner was purchasing the software and related services from the respondent for US$ 1,341,893.00, it was selling the same to Spanco for US$1,429,593.00 and was therefore, making a huge profit thereon. Reference was made to the averments made in paragraphs 7, 8 and 9 of the winding up petition, to point out that the appellant had on account of its own financial constraints requested the original petitioner to consider accepting the amounts due from another Company for which the appellant committed and promised to make required arrangements and it was pursuant thereto that the resolution dated 30th January, 2009 came to be passed authorising the original petitioner to collect an amount of US$ 452,843.00 from Spanco, who in turn was represented to have owed the same amount to the appellant company. Subsequently, superseding the earlier Board Resolution another Board Resolution came to be passed on 11th March, 2010 authorising the petitioner to collect an amount of US$80,948.00 directly from Spanco which was paid on behalf of the appellant company. Thereafter for the balance outstanding amount the appellant company passed yet another Board Resolution dated 3rd September, 2011, authorising Spanco to make payment of US$371,019.00 to the original petitioner and authorising the petitioner to collect the same. Thereafter for the balance outstanding amount the appellant company passed yet another Board Resolution dated 3rd September, 2011, authorising Spanco to make payment of US$371,019.00 to the original petitioner and authorising the petitioner to collect the same. The attention of the court was drawn to the affidavit-in-reply filed by the appellant in response to the winding up petition, and more particularly paragraph 13 thereof, to submit that the appellant has not disputed the fact that the third resolution was passed on 3rd September, 2011 and as such the contention that the writing containing the acknowledgment being undated is required to be proved by leading oral evidence in view of sub-section (2) of section 18 of the Limitation Act, does not merit acceptance. 8. As regards the submission that all throughout, the respondent-original petitioner had entered into correspondence with Spanco in respect of its dues and that for the first time any demand had been made on the appellant was by virtue of the statutory notice, the learned counsel pointed out that in view of the resolution dated 30.1.2009 the original petitioner had been authorised to collect an amount of US$482,843 being the balance amount payable towards the BSNL Multiplay Project by ORG (the appellant) to Netsweeper (the respondent) from Spanco from whom the ORG has to collect this payment. It was contended that it was only pursuant to the said authorisation that the original petitioner had entered into correspondence with Spanco, however, that does not mean that the appellant ceases to be liable to pay the outstanding dues. It was pointed out that the original invoice was dated 31st March 2007, therefore the period of limitation would be three years therefrom, that is till 2nd March 2010, whereas the first Board Resolution was passed on 30.1.2009 within a period of three years, wherein there is a specific acknowledgment of the outstanding amount. Therefore, in view of the provisions of section 18 of the Limitation Act, the period of limitation stood extended by a further period of three years. Thereafter the second Board Resolution came to be issued on 11th March 2010 which was in supersession of the first resolution. By virtue of the said resolution the appellant authorised Spanco to make payment of US$80,948 to the respondent. Thereafter the second Board Resolution came to be issued on 11th March 2010 which was in supersession of the first resolution. By virtue of the said resolution the appellant authorised Spanco to make payment of US$80,948 to the respondent. Thereafter by the third resolution dated 3rd September, 2011, which was in continuation of the first resolution the appellant authorised Spanco to make payment of US$371,019 on its behalf to Netsweeper being the balance amount payable to Netsweeper. It was submitted that thus there was a direct admission of the amount payable by the appellant to the respondent original petitioner and the winding up petition having been filed within a period of three years from the date of passing of the third resolution, was well within the prescribed period of limitation, in view of the provisions of section 18 of the Limitation Act. It was further pointed out that the appellant has not even cared to reply to the statutory notice issued by the respondent. It was submitted that no bona fide defence having been raised by the appellant, the learned Single Judge was wholly justified in passing the impugned order of admitting the petition. 9. From the facts and contentions noted hereinabove, the twin questions that arise for consideration are: firstly, as to whether it is the appellant who is liable to pay the outstanding dues towards the purchase of software and related services from the respondent, and secondly, as to whether such debt is time-barred. 10. Insofar as the first question is concerned, the record reveals that vide invoice dated 31st March, 2007, the respondent sold the goods as described therein to the appellant herein for an amount of US $ 1,341,893.00. As per the terms and conditions stipulated under the said invoice, 70% of software and services payment was to be made within 45 days from the date of the invoice and paper licence issued (already to IBM) and balance 30% of software and services payment was to be made within 20 days after Netsweeper Internet Policy Service Solutions AT. A subsequent invoice dated 3rd December, 2007 issued by Netsweeper to the appellant reveals payment of US $ 452,543.00 and the date of transaction is shown as March 31, 2007 to August 23, 2007. The record also reveals that M/s Spanco (S) Pte. A subsequent invoice dated 3rd December, 2007 issued by Netsweeper to the appellant reveals payment of US $ 452,543.00 and the date of transaction is shown as March 31, 2007 to August 23, 2007. The record also reveals that M/s Spanco (S) Pte. Ltd. had issued a purchase order to the appellant Company on 29th March, 2007 for purchase of software and related services for a total of US $ 1,429,593.00. Thus, what the appellant Company purchased from the respondent was to be sold to Spanco for a higher price. A perusal of the record shows that there is nothing to show any direct connection between the respondent and Spanco except for the emails which have been placed on record. A close reading of the said emails shows that such correspondence has been entered into after and in pursuance of the Board Resolution dated 30.01.2009 whereby, the respondent has been authorised to collect an amount of US $ 482,843.00 being the balance all amount payable towards BSNL Multiplay Project by ORG to Netsweeper, from Spanco Singapore Pte. Ltd., Singapore from whom the ORG (the appellant) had to collect this payment. This board resolution clearly reflects two things: firstly, an acknowledgment of outstanding debt of US $ 482,843.00; and secondly, that the respondent had been authorised to collect such amount from Spanco. It is based on this board resolution that the respondent had entered into correspondence with Spanco and not on account of any direct independent connection with it. Thus, prima facie, there does not appear to be any privity of contract between the respondent and Spanco and hence, the liability to pay the amount in respect of the order placed by the appellant with the respondent appears to be solely that of the appellant. The contention that it was Spanco who was liable to make such payment or that there were several suppliers involved and it was only as and when payments were received from other participants, the same were to be made over to the respondent, is not borne out from the record. Under the circumstances, the contention that the appellant was not liable to pay the outstanding dues towards purchase of software and related services to the respondent does not merit acceptance. 11. Under the circumstances, the contention that the appellant was not liable to pay the outstanding dues towards purchase of software and related services to the respondent does not merit acceptance. 11. In support of her contention, the learned counsel for the appellant also placed reliance upon the decision of the Madras High Court in the case of Vijayalakshmi Art Productions v. Vijaya Productions Pvt. Ltd., (1997) 88 Company Cases 353, for the proposition that after the petitioner had ceased to be a creditor, the winding up petition at the instance of such person either on the ground of inability to pay its debts, or on the ground that it is just and equitable to wind up, will not lie. Moreover, a petition on just and equitable grounds will not be entertained when an adequate alternative remedy is available to the petitioner. If the petitioner has a legally enforceable claim against the respondent, it is open to the petitioner to resort to remedies in civil courts which he is entitled to do. The petitioner cannot, merely by asserting that it has a claim even though the claim is barred by limitation, further assert that it is just and equitable to wind up the company. A case for winding up on the grounds that it is just and equitable to do so has also not been made out in the petition. 12. In the opinion of this court, in the light of the findings recorded hereinabove, the said decision also would have no applicability in the present case, inasmuch as, the record clearly reveals the outstanding debt payable by the appellant- Company to the respondent as well as the fact that such debt has not been discharged over a period of time. 13. Coming to the second issue as regards whether the debt in question is time barred, it may be apposite to refer to the provisions of section 18 of the Limitation Act, which reads as under: "18. 13. Coming to the second issue as regards whether the debt in question is time barred, it may be apposite to refer to the provisions of section 18 of the Limitation Act, which reads as under: "18. Effect of acknowledgment in writing.(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation - .For the purposes of this section, (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right; (b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and" (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right." Thus, in view of the provisions of sub-section (1) of section 18 of the Limitation Act, if a party against whom a right is claimed gives an acknowledgment of liability in respect of such right in writing before the expiration of the prescribed period for a suit or application in respect of such right, a fresh period of limitation is required to be computed from the time when the acknowledgment was so signed. Sub-section (2) of section 18 of the Limitation Act provides that where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed. 14. Sub-section (2) of section 18 of the Limitation Act provides that where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed. 14. It is the case of the respondent that in the light of the resolutions passed by the appellant Company from time to time, the period of limitation has been extended and hence, the winding up petition has been filed within the prescribed period of limitation. To examine such contention, it may be necessary to refer to some facts. 15. The invoice issued by the respondent Company to the appellant is dated 31st March, 2007. According to the appellant, the period of limitation for claiming the amount alleged outstanding towards the said invoice would expire on 31st March, 2010. That the resolutions dated 30.01.2009 and 11.03.2010 do not amount to acknowledgment in writing so as to result in commencement of a fresh period of limitation, whereas it is the case of the respondent (original petitioner) that there is acknowledgment of the outstanding dues in the said resolutions as well as the third resolution dated 3rd September, 2011, which would extend the period of limitation. 16. In this regard, a perusal of the Board Resolution dated 30.01.2009 reveals that the appellant Company has authorised the respondent to collect an amount of US $ 482,843, the balance all amount payable towards BSNL Multiplay Project by ORG to Netsweeper, from Spanco Singapore Pte. Ltd., Singapore from whom the ORG (the appellant) had to collect this payment. On a plain reading of the above resolution, it is apparent that there is a clear admission on the part of the appellant Company regarding outstanding dues payable to the respondent towards BSNL Multiplay Project by ORG to the tune of US $ 482,843. The said resolution further authorizes the respondent Company to recover the said amount from Spanco Singapore Pte. Ltd., Singapore. Therefore, by virtue of the said resolution, the appellant Company not only acknowledges the debt due, but also permits the respondent Company to recover the same from Spanco from whom the appellant had to collect the payment. The said resolution would, therefore, fall squarely within the ambit of sub-section (1) of section 18 of the Limitation Act and would have the effect of extending the period of limitation. The said resolution would, therefore, fall squarely within the ambit of sub-section (1) of section 18 of the Limitation Act and would have the effect of extending the period of limitation. The subsequent Board Resolution dated 11.03.2010, which has been passed in supersession of the previous resolution dated 30.01.2009, authorizes Spanco to make payment of US $ 80,948 to the respondent. A perusal of the said resolution reveals that it has been recorded therein that the Board was informed that the Company (the respondent) has to collect US $ 482,843 from M/s Spanco Singapore Pte. Ltd., Singapore towards Application Software Licence fee and Service (Installation and Training) cost in respect of BSNL Broadband Multiplay Project. The Board was further informed that the Company has to pay the same amount to M/s Netsweeper Inc., Canada. Out of above mentioned amount, an amount of US $ 80,947.65 pertains to the services towards installation, commissioning and training for the said project and is still to be received by Spanco from IBM, the channel partner in this project. It was, therefore, proposed to authorise M/s Netsweeper to collect said amount of US $ 80,948 from Spanco directly, once it is received from IBM. Thereafter, the Company has authorised Netsweeper to collect the amount of US $ 80,948 from Spanco. The third resolution dated 3rd September, 2011 passed by the Board of Directors of the appellant Company authorizes M/s Spanco (S) Pte. Ltd. to make a payment of US $ 371,019 directly to M/s Netsweeper Inc. on behalf of the appellant Company. It is further resolved that Netsweeper is authorised directly to collect from M/s Spanco (S) Pte. Ltd., Singapore, an amount of US $ 371,019, the balance amount payable to Netsweeper. Thus, there is a direct admission of the amount payable to the respondent by the appellant in the said resolution. Accordingly, in terms of the provisions of subsection (1) of section 18 of the Limitation Act, fresh period of limitation would be required to be computed from the date of the said resolution. 17. It has been contended on behalf of the appellant that the said resolution is an undated one and hence, in view of the provisions of sub-section (2) of section 18 of the Limitation Act, oral evidence would be required to be led in respect of the contents thereof. 17. It has been contended on behalf of the appellant that the said resolution is an undated one and hence, in view of the provisions of sub-section (2) of section 18 of the Limitation Act, oral evidence would be required to be led in respect of the contents thereof. In this regard, it may be noted that while it is true that the third resolution does not bear any date, the respondent (original petitioner) in the winding up petition has categorically stated in paragraph 8 thereof that for the payment of the balance outstanding amount, the appellant Company had passed yet another Board Resolution dated 3rd September, 2011, authorising Messrs Spanco Singapore Pte. Limited, Singapore to make payment of US $ 371.019.00 to the respondent Company. In paragraph 9 of the petition, it has been stated that based upon the representation made by the appellant Company and the said Board Resolution dated 3rd September, 2011 passed by the appellant Company, the original petitioner had demanded from Messrs Spanco Singapore Pte. Limited, Singapore, to make the payment of the outstanding amount through its emails dated 5th July, 2011, 8th July, 2011, 10th July, 2011 and 26th July, 2011 respectively. Since there was no positive response or payment from Messrs Spanco, the petitioner through its advocates issued a letter to Messrs Spanco, asking them to make payment of the amount of US $ 371,019.00, in accordance with the aforesaid Board Resolution of the respondent Company. In response to the averments made in winding up the petition, the appellant Company has filed an affidavit-in-reply. A perusal of the contents of the affidavit-in-reply reveals that in response to the averments made in paragraphs 8 and 9 thereof, all that is stated is that the fact that the petitioner (respondent herein) sent legal notice to Spanco indicates that it accepts its liability to pay is that of Spanco. In the entire affidavit-in-reply, no dispute has been raised to the effect that the date of the third resolution is not 3rd September, 2011 as stated on oath by the respondent (original petitioner). In the entire affidavit-in-reply, no dispute has been raised to the effect that the date of the third resolution is not 3rd September, 2011 as stated on oath by the respondent (original petitioner). Under the circumstances, the appellant-Company cannot, at this stage, be permitted to contend that the said resolution does not bear any date and that the same would fall within the ambit of sub-section (2) of section 18 of the Limitation Act, in respect of which oral evidence would be required to be adduced as regards the time when it was signed. 18. From the facts noted hereinabove, it is apparent that while the period of limitation would start from the date of the invoice dated 31st March, 2007 and would ordinarily expire on 30th March, 2010, in the facts of the present case, by the Board Resolution dated 30.01.2009, that is, before the expiry of the prescribed period of limitation, the appellant-Company had acknowledged the outstanding dues of the respondent- Company and hence, in the light of the provisions of subsection (1) of section 18 of the Limitation Act, a fresh period of limitation would be required to be computed from the date when such acknowledgment came to be signed. Subsequently, by the third Board Resolution dated 3rd September, 2011, the appellant-Company has again acknowledged the outstanding debt of US $ 371,019.00. Therefore, in view of the provisions of sub-section (1) of section 18 of the Limitation Act, a fresh period of limitation would be required to be computed from the date of the said resolution which would extend to a period of three years from 3rd September, 2011. The winding up petition has been filed on or about 30th March, 2012 which is well within the extended period of limitation as computed from the date of the third Board Resolution. Under the circumstances, the second ground raised by the appellant, namely that the debt is time barred, also deserves to be rejected. 19. Another contention raised on behalf of the appellant was that the respondent (original petitioner) has sought to apply pressure tactics with a view to recover the outstanding amount and that a winding up order cannot be made merely on the basis of such pressure tactics. 19. Another contention raised on behalf of the appellant was that the respondent (original petitioner) has sought to apply pressure tactics with a view to recover the outstanding amount and that a winding up order cannot be made merely on the basis of such pressure tactics. In support of such submission, the learned counsel for the appellant placed reliance upon a decision of the Punjab and Haryana High Court in the case of Bombay House v. New Model Industries (Pvt.) Ltd., (1995) 82 Company Cases 720, wherein the court has held that a petition for winding up cannot be used as a pressure tactic for recovery of the amount due, if any. It is virtually, in a sense, a representative suit by the creditors for and in the interest of the body of creditors with an object that the company which is unable to do business and meet its day to day liabilities, should not be permitted to continue its business and defraud the people dealing with it. The court observed that once the learned counsel for the petitioner had accepted that the question of limitation is a mixed question of law and fact, it failed to comprehend how the same can be dealt with in those summary proceedings particularly when prima facie, the defence put forth by the respondents therein is a bona fide one. The court observed that the petitioner therein never even attempted to contend that the defence put forth by the respondents therein with respect to the debt being barred by limitation is not bona fide. 20. In the opinion of this court, for the reasons recorded hereinabove, the said decision would have no applicability in the facts of the present case. 21. A perusal of the impugned order reveals that the learned Company Judge has, after taking into consideration all relevant aspects, passed the order admitting the petition and granted further time to the appellant-Company to make good its liability. 22. For the reasons stated hereinabove, this court does not find any reason to take a different view. The appeal, therefore, fails and is, accordingly, dismissed. 22. For the reasons stated hereinabove, this court does not find any reason to take a different view. The appeal, therefore, fails and is, accordingly, dismissed. Further, having regard to the fact that by way of interim orders passed by this court, the order passed by the learned Company Judge had been stayed, the time limit for making payment as stipulated in the impugned order shall stand extended for a further period of two and half months failing which, the Company Court may proceed further to pass an order of advertisement.