TaxTMI 
TaxTMI 
2014 (3) TMI 923
X X X X Extracts X X X X
X X X X Extracts X X X X
....ggregating to Rs.27,52,746.48. 2. On 5th November 1988, Atcom and Gati entered into a contract, under which Gati was required to transport Atcom's good to different destinations in India. The contract required payment to be made by Atcom within 15 days of Gati submitting its bills or invoices. There was also a contractual provision for interest at 2% per mensem on unpaid bills. 3. Gati claims that Atcom did not pay several of its bills. Gati filed a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 against Atcom (Suit No.55 of 2000) in the court of the 1st Additional Chief Judge, City Civil Court, Secunderabad, for recovery of Rs.8,00,217/- and interest. Atcom contested the action. It sought leave to defend. This wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....learned advocate for Atcom, now canvasses the defences taken in the affidavit in reply. This petition, he submits, is not maintainable as the Gati has put the decree into execution, and since the decree has not yet been returned unsatisfied, the petition must be dismissed in limine. Ms. Kapil is correct in her response that this submission is entirely without merit. A petitioning-creditor with a decree need not put it into execution before bringing a winding up petition. He can proceed either under Section 434(1)(b) or, having served a notice, move against the debtor-company under Section 434(1)(a). All India General Transport Corporation Ltd v Raj Kumar Mittal, [1978] 48 Com Cas 604 (Cal); Karpara Project Engineering v Ballarpur Industries....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng of the sort. The claim there appears to have been made on the underlying debt that merged into the decree, and the learned single Judge therefore held that the claim ought to have been made within three years of the debt becoming due under Article 137 of the Limitation Act: It is an admitted position that the cause of action of the company arose in 1992. The suit was filed in 1994 and the decree was obtained in 1997. But on the basis of the said debt which is said to be merged in the decree, the winding up petition cannot be filed after the period of limitation that means after a period of three years. It was undisputed before the Rameswar Prosad court that it was Article 137 of the Limitation Act that applied, and that the period of lim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....possible to say, in these circumstances, that Atcom has any defence at all to this petition, much less a bona fide or substantial defence. Such arguments as are taken are merely speculative and intended only to further attempt to delay and defeat the petitioningcreditor, Gati. 13. In these circumstances: (a) The Company Petition is admitted and made returnable on 29th April 2014; (b) Service of the Petition under Rule 28 of the Company (Court) Rules, 1959 is waived by Mr. Jumani; (c) The petition shall be advertised in two local newspapers, viz., (i) Free Press Journal (in English) and (ii) Navshakti (in Marathi); as also in (iii) the Maharashtra Government Gazette; (d) On or before 7th April 2014, the petitioner shall ....