Acknowledgement in Writing validated by balance sheet and director's reply, bringing a winding up petition within limitation and maintainable despite parallel suit.

Applications to recall or review earlier orders, to condone delay and for stay were denied: the court treated non-appearance and published citations together with the respondent's subsequent inaction as fatal to those remedies. The court clarified that a winding up petition under the Companies Act remains maintainable despite parallel or prior civil proceedings because a recovery suit and winding up are distinct remedies, so no bar arises. Documentary admissions - a creditor list in the balance sheet and a director-signed reply transmitted to the Registrar - were held to constitute an acknowledgement in writing for limitation purposes, rendering the petition timely.

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Issues: (i) Whether the respondent's applications to recall/review the orders dated 10.4.1997 and 2.12.1997, to condense delay and for stay, are maintainable; (ii) Whether the Company Petition filed under Sections 433 and 434 of the Companies Act was maintainable despite a concurrent suit or previous dismissal in the suit; (iii) Whether the petition was barred by limitation or the respondent's balance sheet/reply constituted a valid acknowledgement of debt under the Limitation Act.

Issue (i): Whether the respondent is entitled to recall or review the orders dated 10.4.1997 and 2.12.1997, and to have delay condensed and stay granted.

Analysis: The court examined the facts of non-appearance, publication of citation in national newspapers and Delhi Gazette, subsequent representation on listed dates, and the respondent's delay in moving applications despite publications and notices. The court considered the principles regarding relief against default caused by an advocate's negligence but found independent evidence of respondent's knowledge of dates and inaction by the respondent itself. The court also noted merger of earlier interim order into the final winding up order dated 2.12.1997 and considered the timing of applications relative to published citations.

Conclusion: The respondent's applications for recall/review, condonation of delay and stay are not maintainable and are dismissed; relief is refused against the petitioner.

Issue (ii): Whether the Company Petition for winding up under Sections 433 and 434 of the Companies Act was maintainable notwithstanding parallel or prior civil proceedings.

Analysis: The court analysed the distinct nature of remedies available by civil suit and by winding up petition, referring to authority and precedents that treat recovery suits and winding up petitions as separate remedies. The court considered whether dismissal of an application in the civil suit barred seeking winding up and found that the two remedies are distinct and that no bar existed to maintain the company petition.

Conclusion: The Company Petition is maintainable; there is no bar to proceeding under the Companies Act despite concurrent or prior civil proceedings.

Issue (iii): Whether the petition is barred by limitation or whether the respondent's balance sheet and reply constituted an acknowledgement of debt under Section 18 of the Limitation Act.

Analysis: The court found documentary material showing the respondent's admission of liability - the balance sheet containing the creditor list and the reply dated 22.11.1991 signed by a director - and relied on precedent that a balance sheet can constitute an acknowledgement in writing. The Division Bench earlier recorded the admission. Applying Section 18 principles, the court treated the balance sheet/reply as acknowledgement sufficient to bring the petition within limitation.

Conclusion: The petition is not barred by limitation; the balance sheet and reply constitute a valid acknowledgement of debt and the petition was filed in time.

Final Conclusion: The orders admitting the company petition to hearing and directing winding up are valid and justified; no ground exists to recall or review those orders and the respondent's applications are dismissed.

Ratio Decidendi: A balance sheet and a reply transmitted to the Registrar of Companies signed by a director constitute an acknowledgement in writing under Section 18 of the Limitation Act, sufficient to render a subsequent winding up petition within time.

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