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2015 DIGILAW 597 (CAL)

Surendra Commercial Syndicate Pvt. Ltd. v. .

2015-07-22

SANJIB BANERJEE

body2015
JUDGMENT : Sanjib Banerjee, J. The only ground on which the creditor's winding-up petition is resisted is of limitation. The company refers to paragraph 6 of the petition to indicate the nature of the claim. It is also necessary, in the context, to see paragraph 7 and the first four lines of paragraph 8 of the petition; "6. In or about the month of February, 2010, the company approached the petitioner for financial assistance by way of short term loans and advances repayable on demand. The company also agreed to pay interest @ 18% per annum on the loan advanced. "7. Upon considering the request of the company the petitioner agreed to lend and advance the desired loan to the company, however, on condition that the said loan shall be repayable on demand and the sum lent shall carry interest @ 18 % per annum. "8. In view of the aforesaid, the petitioner disbursed the said loan of sum of Rs. 1,09,50,000/- (Rupees One Crore Nine Lacs Fifty thousand only) to the company by way of account payee cheques, particulars whereof are mentioned in the schedule given below :" 2. According to the company, even the statutory notice of January 28, 2013 issued in Hindi made out a case of several loans being granted by the petitioner to the company. The company asserts that the only thin thread by which the claim is pursued is the repayment of a sum of Rs. 25 lakh by the company to the petitioner on April 23, 2010. The company says that if the loans are seen to be distinct and each transaction reckoned from the date that the cheques relating thereto were encashed, the claims in respect of the first ten cheques covered by the chart at page 6 of the petition would be barred by limitation. 3. The company refers to Articles 19, 20 and 21 of the Schedule to the Limitation Act, 1963 and Section 61 of the Contract Act as to the application of payment where neither party appropriates, to suggest that the claim is not so free from doubt that the company's inability to pay its debts may be inferred from the conduct of this company. 4. 4. As would be evident from the petition, the petitioner claims that the company had approached the petitioner for "short term loans and advances repayable on demand", but the petitioner says, at paragraph 8 of the petition, that it disbursed "the said loan of a sum of Rs. 1,09,50,000/-." In effect, the sense that the petition gives is that there was one loan which was made available by the petitioner to the company, though the payment of the total amount thereunder was released in several tranches. 5. Since the last date of the payment made by the petitioner to the company was March 16, 2010 and the last repayment made by the company to the petitioner was on April 23, 2010, it does not appear that the petition filed on April 23, 2013 is barred by limitation in view of Section 19 of the said Act of 1963 that gives a fresh period of limitation upon any part payment being made. 6. Article 19 of the Schedule to the said Act of 1963 applies to a claim on account of money payable for money lent and the period of limitation begins when the loan is made. It is judicially accepted that since the law of limitation is in the nature of a prescription that goes against the natural order of things and prohibits the realisation of a claim, any construction, whether of the statute or of facts, has to be made to the benefit of the claimant, Article 19 can be seen to imply that the period of limitation or the time would begin to run from the date of completion of the payment in respect of the loan. Since the last payment in this case was made on March 16, 2010 and a part repayment was made on April 23, 2010, by virtue of Section 19 of the said Act of 1963, a fresh period of three years would be available to the petitioner reckoned from April 24, 2010. Article 20 of the Schedule to the said Act of 1963 would apply in a case where the entirety of the loan was made by a single cheque. Even Article 21 would suggest that the period of limitation would begin when the payment in respect of the loan is completed. Article 20 of the Schedule to the said Act of 1963 would apply in a case where the entirety of the loan was made by a single cheque. Even Article 21 would suggest that the period of limitation would begin when the payment in respect of the loan is completed. It is equally possible to regard the claim being governed by residuary Article 113 of the Schedule to the Limitation Act for the last date of payment in respect of the loan reckoned to be the date from which the clock of limitation would begin to run. 7. In the light of how the facts present themselves, Section 61 of the Contract Act is of no relevance as it does not add to the ground of limitation urged. As a consequence, the judgment reported at AIR 1940 Patna 52 cited by the company does not assist the company in warding off the claim. 8. An argument has been made on the basis of paragraph 14 of the petition where the interest has been counted from the dates of disbursal of the payments under the loan by the petitioner. 9. The claim on account of interest, or the particulars in respect thereof, are of no relevance in the context of the point of limitation urged by the petitioner. If a loan is disbursed in several instalments, interest will run from the dates of disbursal and not from the time when the last amount under the loan was made available to the borrower. Paragraph 14 captures such aspect of the matter and cannot be taken advantage of by the petitioner to suggest that several loans were made available by the petitioner to the company and some of such loans can no longer be pursued in view of the law of limitation. 10. The affidavit filed by the company indicates no other defence. Bald denials have been issued without indicating the circumstances in which the transaction took place or how the company came to receive the loan from the petitioner. It is also evident that the statutory notice, though in Hindi, was served on the company, but it was refused by the company. Such notice does not make out a case of several loans being granted by the petitioner to the company. 11. There is no defence to the claim and the petition is admitted for the principal sum of Rs. Such notice does not make out a case of several loans being granted by the petitioner to the company. 11. There is no defence to the claim and the petition is admitted for the principal sum of Rs. 48,47,000/- together with interest thereon at the agreed rate of 18 per cent per annum from April 24,2010, which is the day following the last repayment made by the company to the petitioner. If the company pays off the entire amount, together with interest and costs assessed at 2000 GM, within a fortnight from date, the petition will remain permanently stayed. 12. In default of the payment as aforesaid being made, the petitioner will advertise the petition once in "The Statesman" and once in "Bartaman" and indicate that the petition will appear before the Court on the first working day after the expiry of four weeks from the date of the publications. Publication in the Official Gazette shall stand dispensed with.