1985 (5) TMI 250

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.... time when the petition was filed. (2) During the hearings of the matter on the aforesaid common question, some of the learned Counsel, appearing for the creditors or the companies concerned, did not maintain the distinction between ''maintainability" of a petition, the "locus stand" of a creditor and the extinction of the remedy on the claim becoming out of time. It is, therefore, necessary at the outset to clear the ground for a proper consideration of the common question. (3) The distinct terms "right" and the "remedy" to enforce it are conceptually, as well as qualitatively, different. When a claim becomes barred by time under the law of limitation, the remedy is extinguished but the right survives such extinction. The onl....

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....a debt which is due, as well as recoverable in law. To hold to the contrary would lead to the anamolous result that the creditors of a joint stock company would be immune from the bar of limitation and have a preferential right as compared to an ordinary creditor. This was also not seriously disputed on behalf of the various petitioners. (5) It was, however, contended that the claims in each of these cases were within time when the petitions were instituted and the deemed inability of the company to pay the debts as on the aforesaid dates would not be affected merely because the claims became barred by time during the pendency of the proceedings. It was further urged that once the petitions were filed, the limitation in relation to the c....

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....tation has already been taken before the expiry of the period provided by the Limitation Act. The filing of a winding up petition is not analogous to filing a Suit. Section 14 of the Limitation Act would also be of no assistance to the petitioners because the petitions for winding up and the eventual suit for which the exclusion may be claimed could not be said to "relate to the same matter in issue". The object of winding up petition is to have the Company wound up. Winding up petition is not a forum for the adjudication of disputes between the parties nor is it an ordinary mode of recovery of money. The only question with which the winding up court is concerned is if the Company is liable to be wound up. The other conditions of Section 14....

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....alone. (7) A winding up petition, solely based on a claim, which was barred by time at its inception, or which was allowed to be barred during its pendency. would be a gross abuse of the process of this court, and would be a misuse of the special jurisdiction under the Companies Act created for an entirely different purpose. This forum is already sufficiently misused by creditors of the corporate sector to enforce claims of doubtful validity partly because the proceedings are not as time consuming and dilatory as the regular civil action for recovery, and partly because the forum provides a comparatively cheaper legal remedy to the creditor as compared to the ilkeical, inequitable and almost senseless provisions of the Court Fees Act, wh....