TaxTMI 
TaxTMI 
1990 (2) TMI 321
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....towards the said invoices was Rs. 1,78,642.50. The plaintiffs further in para 14 of the plaint state that their suit is within limitation as the defendants have condoned and waived the said plea of limitation by an acknowledgment of liability to pay the amount due to the plaintiffs and by entering into consent terms and submitting to a consent order in Appeal No. 837 of 1986 which was carried against the conditional order passed by Parekh J. in Petition No. 683 of 1985 filed by the plaintiffs seeking an order of winding up of the defendants-company on the ground that the defendant-company was unable to pay its debts by non-compliance of the notice under section 434 of the Companies Act within the period prescribed. The plaintiffs also claim that in the appeal which was carried by the defendant against the order passed by Parekh J., the consent terms were submitted and on the basis of the said consent terms, the consent order came to be passed on July 30, 1986, whereby the order passed by the original court was confirmed and the period to deposit the amount by the defendant and for filing of the suit by the plaintiffs was extended by 2 and 10 weeks respectively from October 10, 1986....
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.... as a preliminary issue is : whether the entire claim of the plaintiffs in the suit is barred by limitation on the basis of the contentions made by the plaintiffs in the plaint itself ? 3. Mr. shah, learned counsel appearing on behalf of the plaintiffs, contended that the plaintiffs filed a company petition after giving a notice under section 434 of the Companies Act on September 4, 1985, as the plaintiffs failed to pay the amount within the period prescribed and on September 4, 1985, when the said petition was filed, admittedly, the debt was not time barred. Mr. Shah further contended that initially the company petition was admitted, though conditionally and he invited my attention to the order passed in the said petition by Parekh J. The order passed is as under : "P.C. : In the event of the company depositing in court the sum of Rs. 60,000 within a week from today, the petition to stand dismissed. If such deposit is made then; (a) The company's advocate to forthwith intimate to the prothonotary and senior master and the petitioner advocate's the fact of such deposit; (b) The petitioner to be at liber....
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....on, the suit was within limitation. 5. Mr. Shah also tried to rely on section 15(3) of the Limitation Act and he tried to contend very strenuously that he would be also entitled to the exclusion of the period according to the said section. The said section runs as under : "15(3). In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded." 6. According to Mr. Shah, as a proceeding has been filed for winding up of the company of the defendants by the plaintiffs and the same can be said to have been conditionally admitted by the court, the plaintiffs would be entitled to the exclusion of the period as laid down in the said provision. As against this, on behalf of the defendants, it is contended that there is no q....
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....priate court for recovery of the amount in the petition and that such suit was to be filed within eight weeks from the date of intimation that the deposit has been made. The order further provided that in the event the company failed to deposit the amount within the prescribed period, the petition would stand admitted. Similarly, it also provided that if no suit as stated in the order was filed by the present plaintiffs, the defendants were at liberty to withdraw the amount deposited by them in the. Now, therefore, we have to find out whether the said consent terms on the basis of which the consent order came to be passed by the appeal court confirming the order passed by the original court could be considered as an acknowledgment of a debt in terms of section 18 of the Limitation Act. Section 18 of the Limitation Act speaks about acknowledgment in writing and the effect of the same. It runs as under : "18(1). Where before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or ri....
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....s in the present case. At the most, what could be said is that when a petition for winding up of the defendant-company was filed by the plaintiffs, the court passed a conditional order directing the defendants to deposit Rs. 60,000 and in the event of their depositing the amount in the court, the petition would stand dismissed and plaintiffs were to file a suit in a court of law to recover the amounts due to them. It is only the defendants who by consent terms agreed before the appeal court that the said order should be confirmed. The said order accordingly was confirmed on October 10, 1986, in view of the consent terms given by the plaintiffs and the defendants on October 7, 1986. The consent terms are - "(1) By consent the order dated July 30, 1986, confirmed. (2) The time for deposit and filing of suit extended by two weeks from today and ten weeks from today respectively. (3) No order as to costs." 10. These consent terms by no stretch of imagination could be considered as an acknowledgment of the debts by the defendants. It is also clear that ultimately as per the said consent order the amount of Rs. 60,000 was deposited by the defendants and the plaintiff....
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....6, the defendants have condoned and waived the said plea by admitting and acknowledging the liability to pay the aforesaid amount to the plaintiffs and by entering into consent terms and submitting to a consent order in the said appeal whereby time to file the suit by the plaintiffs pursuant to the order dated July 30, 1986, was extended by a period of ten weeks from October 10, 1986." 13. Reading the said contentions raised in para 14 of the plaint, it is clear that the said plea of waiver is based on the consent terms dated October 10, 1986, on the basis of which the consent order confirming the original court's order came to be passed. I have already reproduced the consent terms earlier and by no stretch of imagination it could be considered to be a waiver of the ground of limitation. By the consent terms only the order passed by the lower court was agreed to be confirmed. Similarly, the time which was granted earlier by the trial court for the depositing of the amount specified in the order and filing of the suit was extended. This also by no stretch of imagination can be said to be a waiver of the ground of limitation on the basis of which the suit for recovery of the d....
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....eal court confirmed the order passed by the original court in respect of the company petition, it cannot be inferred that the appeal court was of the opinion that the debts were not time-barred. If the winding up order had been passed, then probably one could say that the said order would relate back to the date of the filing of the petition. But, in the present case, in fact there is no order of winding up passed at all. On the contrary, as the conditional order was satisfied by the defendants by depositing Rs. 60,000, the petition of the plaintiffs stood dismissed. Therefore, the plaintiffs cannot get any advantage on the said basis. It is also tried to be contended that by consent order the appeal court granted further time to the plaintiffs to file the suit and, therefore, in the extended period granted by the court the suit cannot be held to be barred by limitation. Now extension of time to file the suit has in fact no relevance. The court cannot extend period of limitation by granting any extension of time. Apart from this, it is clear in the present case that it were necessary for the court to extend the time given by the original court as, if it was not so extended the defe....
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.... be able to invite this court to give the benefit of section 14 of the Limitation Act and exclude the entire period which was lost in prosecuting the said proceeding before the court in the company petition. Now in fact all the fact that are necessary for the submissions required to be made in respect of the provisions of section 14 of the Limitation Act definitely do not appear to have been made out in para 14 of the plaint. However, even if some benefit is to be given to the plaintiffs in this respect and the contents of para 14 are stretched to mean that the plaintiffs claim the benefit of section 14 of the Limitation Act, it would be necessary to consider whether the plaintiffs would be entitled to the benefit of the same. Section 14 of the Limitation Act runs as under : "14.(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction....
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....were not or could not be considered as in respect of the matter in issue in this suit. In Yashwant Deorao v. Walchand Ramchand, [1950]1SCR852 , it has been held that there can be no excluding under section 14 of the Limitation Act of time occupied by the insolvency proceedings the decree-holder may be able to realize his debt wholly or in part, but this is a mere consequence or result. Not only is the relief of a different nature in the two proceedings but the procedure is also widely divergent. The said observations would also squarely apply to the present facts of the case. In the present case, in the company petition the plaintiffs had asked for winding up of the company and, therefore, the observations made in the said decision by the Supreme Court definitely would apply and, therefore, contention tried to be raised now before me that the plaintiffs are entitled to the exclusion of the time in view of section 14 of the Limitation Act cannot be considered as having substance. In Kashiram v. Santokhbai,: AIR1958MP91 , relied upon by the defendants, it is also stated that section 14 of the Limitations Act speaks of the enability of the court to entertain a suit or proceeding on ce....
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....14(1) are satisfied, for giving benefit of the said section 14(1) the court must not have been able to entertain the proceeding for the reason of defect in jurisdiction or cause of a like nature. The Supreme Court in Gurdit Singh v. Munsha Singh, [1977]2SCR250 , held that for proper interpretation of words "cause of a like nature" the said words or clause would be required to be considered ejusdem generis with earlier words "of defect in jurisdiction" and, therefore, where the court had jurisdiction to entertain the company petition, but for some other reason it does not do so, it cannot be said that the court did not grant the application due to a defect similar to the want of jurisdiction. In the result, section 14 of the Limitation Act has no application to the facts of the present case and, therefore, the time that was spent by the plaintiffs in prosecuting the company petition cannot be excluded while computing the period of limitation. Even if the plaintiffs were pursuing a remedy of winding up under the company law, they ought to have filed a suit for recovery of the amount due to them within the period of limitation. 20. I have already observed above that unless the peri....