2010 (4) TMI 897

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....riod of 120 days and was repayable with interest at the rate of 15 per cent. per annum. 3. In the statutory notice of January 27, 2009, the petitioner claimed that a sum of Rs. 5 lakhs was indeed repaid by the company but that was adjusted against the interest to which the petitioner was entitled. The notice asserted that the last of the payments had been made by the company on June 19, 2006. There was no reply to the statutory notice. 4. In the petition, the petitioner has relied on the money receipt of June 12, 1998, the confirmation of accounts for the financial years 1998-99, 1999-2000, 2002-03, the cheque payments made on October 17, 2005 and June 19, 2006 and a voucher of April 12, 2006, evidencing another payment by the company....

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....r any suit of which notice has been given or where the law requires any notice to be given, the period of such notice has to be excluded before computing the period of limitation. The petitioner relies on a judgment reported at Khedut Oil Cake Industries v. Union of India, AIR 1988 Delhi 88 and refers to paragraph 10 thereof where section 15(2) of the Limitation Act, 1963, was considered in the context of a notice issued to the Government under section 80 of the Civil Procedure Code, 1908. The petitioner also relies on a judgment reported at Raj Kumar Dey v. Tarapada Dey, AIR 1987 SC 2195, where it was held that section 15(2) of the Limitation Act, 1963, would apply to arbitration proceedings. 9. To begin with, section 15(2) of the Act m....

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....creditor could not have enforced the claim by way of a regular suit unless it could establish that the company had, indeed, made payment in the year 2007. If the petitioner had filed a suit on the same day that this company petition was brought, the date of the last admitted payment would not have permitted the petitioner to pursue the claim. For a company to be adjudged unable to pay its debts would imply that there is an enforceable claim which remains outstanding. As to whether there is an enforceable claim in this case, hinges on the alleged payment said to have been made in the year 2007. This gives rise to a bona fide dispute. 13. It was not imperative for the petitioner to issue the notice under section 434 of the Companies Act, 1....