TaxTMI 
TaxTMI 
2025 (7) TMI 472
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....se of the Plaintiff/Appellant herein that the Defendants/Respondents herein placed a purchase order dated 10.06.2014 with the Plaintiff/Appellant to display their advertisements. It is the case of the Plaintiff/Appellant that pursuant to the purchase order, the Plaintiff/Appellant prepared the campaign and updated the Defendants/Respondents with the campaign held in the month of June, 2014 by sending them emails along with the complete set of photographs for each of the sites displayed. It is stated that Plaintiff/Appellant raised its first invoice for the month of June, 2014 vide Bill No.187 dated 02.07.2014 amounting to Rs. 18,73,667/-. It is stated that against the said Bill, the Defendants/Respondents paid Rs. 16,18,960/- by way of cheque and the remaining amount of Rs. 2,54,707/- was not paid. b. It is stated that the Defendants/Respondents being satisfied with the work of the Plaintiff/Appellant, placed another purchase order dated 16.07.2014 with the Plaintiff/Appellant adding a few more sites for display of advertisement within Delhi NCR. It is stated that the campaign continued and the Plaintiff/Appellant continued sending invoices to the Defendants for the work c....
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....duced the Plaintiff to raise back-dated invoices and split the total outstanding amount in two parts, i.e. Rs. 45,11,305/- and Rs. 53,66,278/- totalling to Rs. 98,77,583/- excluding service tax, instead of original outstanding of Rs. 1,03,93,398/- which included service tax, with the understanding that if the Defendants fail to make the payment of the back-dated invoices for a sum of Rs. 53,66,278/- then the Defendants shall be liable to make the payment of Rs. 1,03,93,398/- (Rs. 98,77,583/- being the total of invoices + Rs. 5,15,815/- being the service tax). It is stated that since no payment was received by the Plaintiff/Appellant, the Plaintiff sent a legal notice dated 20.08.2015 to the Defendants under Sections 433/434/439 of the Companies Act, 1956 calling upon the Defendants to pay Rs. 1,03,93,398/- along with interest @ 18% per annum. It is stated that in reply to the said notice, the Defendants raised frivolous allegations against the Plaintiff/Appellant. f. It is stated that the Plaintiff filed a Petition, being Company Petition No. 812/2015, before this Court under Section 433(e) and 434 of the Companies Act, 1956 for winding up of the company. The said Petition....
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....of the invoices raised by the Plaintiff, and, therefore, the period of limitation would be extended for a further period of three years from 24.09.2015. This contention of the Plaintiff was rejected by the learned District Judge by holding as under: "31. This Court is of the view that deposit of TDS can prima facie be proof only of the tax deducted at source and not of the amount due to the plaintiff more so, what is the amount mentioned therein has not been shown or stated by the plaintiff as due to him. This is because no intention to acknowledge a liability can be inferred from the contents of TDS Certificates. In view of aforementioned reasons and law laid down in judgments referred herein before, the deposit of TDS are neither the evidence of the debt or liability of the defendants nor can be relied upon to amount to an acknowledgment so as to get the Benefit of Section 18 of Limitation Act and therefore, the suit of the plaintiff has to be held as barred by limitation. xxx 33. As per article 15 of the Limitation Act referred by counsel for the defendants, the period of limitation is 3 years from the date when the period of credit expires in case of ....
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....towards the Appellant vide their reply dated 05.09.2015 to the legal notice. This reply was received by the Appellant on 12.09.2015. He states that applying Article 113 of the Limitation Act to the facts of the present case, the period of limitation will start from the date of denial, i.e. from 12.09.2015, and it is from that date the Appellant's right to sue first accrued. He places reliance on the Judgment of the Apex Court in M/s Geo Miller & Co Pvt Ltd v Chairman, Rajasthan Vidyut Utpadan Nigam Ltd, (2020) 14 SCC 643. Learned Counsel for the Appellant further states that the Appellant approached this Court bona fide by filing a petition for winding up the company instead of filing a civil suit and, therefore, the time spent in the winding up petition right from its filing till its disposal must be excluded from the period of limitation and benefit of Section 14 of the Limitation Act should be given to the Appellant. Learned Counsel for the Appellant places reliance on several judgments of the various High Courts to substantiate this contention. He further states that the Respondents/Defendants deposited TDS on the amount due and payable to the Appellant/Plaintiff and the same a....
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....Respondents on account of work done by it. The contention of the learned Counsel for the Appellant that the period of limitation will start from the date of denial of payment, which is the date of reply to the legal notice, i.e. 12.09.2015, cannot be accepted. In the opinion of this Court, Article 113 of the Limitation Act has no application to the present case as the present case falls squarely within Article 18 of the Limitation Act. Article 113 which is only a residuary clause, would not apply to the present case. Time would start running from the date of invoice and the suit has been filed beyond three years. 7. The contention of the learned Counsel for the Appellant regarding application of Section 14 of the Limitation Act to the facts of the present case also cannot be accepted. Section 14 of the Limitation Act reads as under:- "Section 14. Exclusion of time of proceeding bona fide in court without jurisdiction. (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....
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....ebt in the civil court, the time spent in the winding-up proceeding could be excluded, the High Court answered in the negative thus: (SCC OnLine MP para 30) "30. The grounds on which a company can be wound up are set out in Section 162 of the Companies Act. There are a number of them. Even if it be assumed that the application was under Section 162(v), namely, that the company was unable to pay its debts, Section 163(1) shows that the expression "unable to pay its debts" embraces three distinct concepts. There is nothing to show that the application was confined to this particular debt. But even if it was, the cause of action in winding-up proceedings under Section 163(1) is the inability of the company to pay its debts and not as here, as the recovery of the debt. The question of recovery does not arise until the winding-up order has been made and a liquidator appointed. It is at that stage that the claims against the company are enquired into and decided. Therefore the cause of action in those proceedings and the cause of action here were not the same. It follows that Section 14 is not attracted." ***** 21.4.6. The common thread running through all the ....
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....m the defendant on 27.03.2015, the present Suit having been filed on 20.09.2018, is, therefore, barred by limitation. He has submitted that the mere fact of the deposit of TDS on 30.09.2015 by the defendant would not extend the period of limitation. 30. The above submission is disputed by the learned senior counsel for the plaintiff contending that the TDS deposited is to the account of the plaintiff and, therefore, would extend the period of limitation. 31. Section 19 of the Limitation Act, 1963 reads as under: "19. Effect of payment on account of debt or of interest on legacy.-Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment." 32. To attract the above provision and take benef....