2009 (4) TMI 439

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....es pertain to the period between 9-2-2005 to 18-3-2005. The petition was filed on 3-4-2008 i.e., after a period of more than three years. Mr. Sen, however, relied upon the ledger maintained by the company for the period 1-4-2005 to 31-3-2006. 4. The first item in this ledger account is dated 1-4-2005. This, however, is the opening balance. Considering the nature of the account in this case it is a moot point as to whether the ledger can be said to constitute an open mutual and current account within the meaning of Article 1 of the Limitation Act. I will assume that the question whether an opening balance constitutes "the last item admitted or proved as entered in the account" within the meaning of that expression in Article 1 of the Limi....

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....t 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 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." 7. The question is whether the letter dated 7-7-2005, read with Annexure-I referred to therein and enclosed therewith constitutes an acknowledgement in writ....

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.... of the case. 11. In the present case, there is a clear intention on the part of the company to incorporate the contents of the Annexure-I referred to therein in the letter dated 7-7-2005. This intention is clear from paragraph 4 of the letter I have set out earlier and especially the words "as seen from the ledger copy enclosed as Annexure-I" (emphasis supplied). Paragraph 4 in effect incorporates the contents of Annexure-I in the letter dated 7-7-2005. If indeed the Petitioner's case on merits is well founded and the defence of the company regarding the clubbing of the said thirty two accounts is not accepted, this letter read with Annexure-I thereto would constitute an acknowledgement of liability as the annexure is incorporated th....