2015 (10) TMI 90

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....ation and for the following reasons: the Petitioner has stated in para. No.8 of the petition that the parties agreed to enter into a "Fresh Agreement" dated 18th August 1997 and under which the respondent agreed to make a payment of Rs. 36,67,328/- in the manner indicated in the novated agreement and thereafter, the Respondent would stand absolved of the liability to pay Rs. 60,17,495/- to the opposing side. Furthermore, in the event the Respondent failed to make such payment the respondent's liability to make good a sum of Rs. 60,17,495/- alongwith interest @20% as liquidated damages would continue to enure vide document Annexure P-3. The Respondent Company became sick and made a reference to the Board for Industrial and Financial Reco....

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....alongwith the other creditors, secured and unsecured. Thus, the Petitioner was in the know of the proceedings of the BIFR upto the stage of its termination vide annexure P-4 of which this court harbours no doubt on the strength of this admission of fact. In para. 5 of the order (P-4), it was directed that "a copy of this order be sent to all concerned." Petitioner has attached with the replication (P-9), which is the order passed by the BIFR on 27th July 2000 wherein the request of the Petitioner for initiating recovery proceedings against the Respondent Company was rejected. The Petitioner further relies on a communication dated 12th August 2000 sent by the Petitioner to BIFR with a copy marked to IFCI, wherein it requested that their clai....

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....er a bona-fide belief that the BIFR continued to be ceased ( sic. seized) of aforesaid proceedings and the same was still pending. 5. The legal notice under Section 434 of the Companies Act, 1956 in the present case was sent on 11th May 2010 calling upon the Respondent Company to pay the debt as per agreement dated 18th August, 1997. It is objected that this claim of the Petitioner Company was belatedly made after 13 years from the date when the amount became due. Furthermore, in case the date when the cause of action arose is taken to be when the Company came out of BIFR i.e. on 28th June 2005 (P-4), then also the Petition filed in the year 2010 is delayed by 5 years, which is beyond the period of limitation prescribed to bring a suit f....

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....en it had knowledge of the Company coming out of its sickness and from the purview of BIFR. The statutory legal notice was also sent much later on 11th May 2010. According to the Law Lexicon by P. Ramanatha Aiyar, 2nd Edition, Reprint 1999, bonafides means good faith. 'Good faith' has been defined in section 2 (h) of the Limitation Act, 1963 to mean: "2. (h) `good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention;" 7. The aforesaid definition means that an act done with due care and attention satisfies the test of "good faith". "Due care" means that sufficient care was taken so far as the circumstances demanded and there was absence of negligence. In other words, the plai....