Shri Sham Lal Gupta Vs. M/S. Hamco Industries (Pvt.) Ltd. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - on the other hand, it is stated that the company which is being managed by the brother of the petitioner is doing very good business and has large profits and that the present petition has been filed by the petitioner out of sheer jealousy on this account. to discharge this onus and to satisfy this court that the amount was repaid the company has placed strong reliance on two documents annexures r1 and r2. 1.50 lacs was to include the share allotment money as well it would have been so mentioned in the statement. the net result is that the petitioner kept on claiming the refund of his money and no replies were sent to him and when the present petition was filed it was for the first time that the defence was taken that the amount had been repaid to the petitioner in terms of the compromise in the civil court on september 15. 1988. keeping in view the circumstances of this case and the conduct of the company, i am driven to the conclusion that the defence set up by the company is false and, therefore, it cannot be said to be in good faith nor is it one of substance. 8. now coming to the second question, i am of the opinion that the amount lying in deposit with the company had become barred by time when the present petition was filed and this being a good defence in a winding up petition, the same will have to be dismissed notwithslanding the conduct of the company. in support of this contention, strong reliance was placed on a division bench judgment of this court in zila parishad, ambala v. 12. it is well settled that in a winding up petition it is a good defence for a company that the amount claimed from it for the nonpayment of which it is sought to be wound up, is barred by time.order1. this petition under ss. 433(e), 434 and 439 of the companies act, 1956 (for short, 'the act') has been filed for the winding up of m/s. hamco industries . private limited, muksudan, jalandhar (hereinafter called 'the company') on the ground that it isunable to pay its debts.2. the company wanted to float some shares with a view to increase its capital. the petitioner, who along with his family members were share holders of the company applied for allotment of 110 shares in his name and sent the share application form duly filed to the company along with a sum of rs. 1.10 lacs as per cheque no. 219479 dated may 10, 1982. the cheque was encashed and the receipt of the amount is admitted by the company and the same is reflected in its balance sheet. annexnres p2 and p3 are copies of two balance sheets of the company for the period ending 31st march, 1993 and 31st march, 1984 in which an amount of rs. 1.10 lacs is shown to be with the company representing share application money pending allotment of shares. it is common case of the parties that the company did not float any fresh shares and, therefore, none was allotted to the petitioner. according to the petitioner, the share money paid by him continued to remain in deposit with the company for a couple of years. it was in the year 1990 that he demanded the return of his money and he is said to have written some letters in this regard. not having received any positive response he sent a registered letter dated december 6, 1990 (annexure p4 with the pet ition) demanding the return of the amount along with interest. it was also stated that in case the amount was not paid, legal proceedings would be initiated for recovery of the same. the company denied the receipt of thisletter but admitted the receipt of a registered envelope which, according to it, on opening contained nothing. this fact was communicated to the petitioner by a registered letter dated 13-12-1990 (annexure p5 with the petition). it is incredible that a creditor who is seeking the return of his money would send an empty envelope by registered post without a letter containing his demand for the return of money. any way, the petitioner wrote another registered letter dated december 20, 1990 calling upon the company to return the amount with interest. the company admits the receipt of this letter and the stand taken in the written statement is that a reply was sent as per letter of the company dated 2-1-1991. receipt of the reply has been denied by the petitioner in the replication and the company has not filed a copy of the letter dated 2-1-1991. the petitioner then sent registered notice through counsel in january, 1991 and again in september, 1992. these notices were sent under s. 434 of the act claiming the return of the amount of rs. 1.10 lacs which was lying in deposit with the company. when the petitioner did not get any reply from the company the present petition was filed alleging that the company was unable to pay its admitted debt. it is also pleaded that the company on receipt of registered notices had for 3 weeks thereafter neglected to pay the amount nor did it secure or compound the debt to the reasonable satisfaction of the petitioner and, therefore, it should be deemed to be unable to pay its debts within the meaning of s. 433(e) and 434 of the act.3. in the written statement filed on behalf of the company some preliminary objections have been raised. it is admitted that the petitioner has deposited the amount of rs. 1.10 lacs as alleged by him. the case of the company is that this amount was paid back to him in the year 1988. it is also pleaded that the amount as claimed by the petitioner has become time barred as it was deposited in the year 1982 and the same could be claimed on or before may 10, 1985. it is further alleged that there were a large number of disputes between the petitioner on the one hand and his brother shri om parkash gupta, managing director of the company and other members of the company on the other. according to the respondent, the petitioner and his wife alongwith their children had filed a suit against the company in the court of senior sub judge, jalandhar and the same was compromised on september 15, 1988 and the company paid a consolidated sum of rs. 1.50 lacs to settle all claims whatsoever of the petitioner and his wife with the company. a copy of the statement made by the petitioner in that suit has been attached as annexure r1 and a copy of the order passed by the court in that suit has been produced as annexure r 2 with the written statement. the case of the company is that the sum of rs. 1.50 lacs which was paid to the petitioner and his wife on september 15, 1988 while settling the disputes in the suit included the amount of rs. 1.10 lacs deposited by the petitioner as share allotment money. it is denied that (he company is unable to pay its debts. on the other hand, it is stated that the company which is being managed by the brother of the petitioner is doing very good business and has large profits and that the present petition has been filed by the petitioner out of sheer jealousy on this account. the company also claims to have sent a reply to both the statutory notices received from the petitioner as per its letters dated 11-2-1991 and 1-10-1992 copies of which have been attached as annexures r4 and r5.4. the petitioner has filed a rejoinder denying the stand taken by the company, his stated that the company has set up a false defence in the petition and this by itself should be a ground to order its winding up. it is further stated that the amount was never repaid to the petitioner and the sum of rs. 1.50 lacs paid while settling the disputes in the civil court (as per annexure rl and r2) did not include the share application money and that the said amount was paid to the petitioner by defendants 4 to 14 in the said suit and not by the company. it has been emphatically denied that the company ever sent reply to the statutory notices as alleged in the written statement and that annexures r4 and r5 have been prepared only for the purposes of this petition.5. i have heard shri n. c. sahni, advocate in support of the petition and shri l. m. suri, senior advocate for the company. on the contentions raised before me, the following questions arise for consideration:1. whether the amount of rs. 1.10 lacs which was admittedly lying in deposit with the company was paid back to the petitioner as alleged by the company. 2. whether the claim of the petitioner has become barred by time. 6. as regards the first point, the receipt of the amount for the allotment of shares is not disputed by the company and, therefore, the onus to prove that the said amount was paid back to the petitioner lies on the company. to discharge this onus and to satisfy this court that the amount was repaid the company has placed strong reliance on two documents annexures r1 and r2. annexure r1 is the certified copy of the statement made by the petitioner in the court of senior sub-judge, jalandhar in civil suit no. 102 of 1985. as is clear from the title of the suit the same was filed by the petitioner along with his wife and three minor children against the company, its managing director and smt. suder-shan goel and defendants 4 to 18. the suit was declaration to the effect that plaintiff no. 1 (petitioner herein) was the owner and holder of 25 equity shares of the denomination of rs. 1,000/ - each of the company. plaintiff no. 2 claimed to be the owner and holder of 25 equity shares in the company and plaintiffs nos.3 and 4 were the owners and holders of 5 equity shares each and plaintiff no. 5 was the owner and holder of two equity shares, each share being of the denomination of rs. 1,000/-. a further declaration was sought to the effect that the extraordinary genera! meetings of the share holders of the company held on august 6, 1982 and august 10, 1982 were illegal, unlawful and ultra vires the bye-laws of the company and the business transacted in the two meetings was also illegal and unlawful. a permanent injunction was sought seeking to restrain defendants 4 to 18 therein from posing, working and acting as owners and holders of the aforesaid 62 equity shares. lastly, a mandatory injunction was also sought against the company and its directors to treat the plaintiffs including the petitioner herein as share holders of the company holding the aforesaid 62 equity shares of rs. l,000/-each. it appears that the petitioners and his family members were holding 62 equity shares in the company which the latter had transferred in favour ofdefendants 4 to 18 in the suit in the two meetings mentioned above and it was to challenge these proceedings that the suit was filed. this was, indeed, the only dispute in the suit which was settled between the parties. the petitioner and his family members were eased out of the company as sharehoiders on a payment of rs. 1.50 lacs. the petitioner who was plaintiff no. 1 in the suit made the following statement in court on 15-9-1982:'since i have effected compromise with my brother om parkash and sudershan kumari his wife and have received rs. 1.50 lacs from defendants no. 4 to 14 through om parkash defendant no. 2 towards my full and final settlement, so i do not want to proceed with this suit. i and my wife cease to have any share, claim or interest in m/s. hamco industries too from today onward. i withdraw my suit. it be dismissed. annexure r2 is the order of the senior sub-judge dismissing the suit as withdrawn. a reading of the aforesaid statement made by the petitioner along with the title of the suit makes it clear that the dispute in the suit was only with regard to 62 equity shares held by the petitioner and his family members which were transferred by the company in its extraordinary general meetings held on august 6, 1982 and august 10,1982. the petitioner and his family members challenged these proceedings by way of a suit as also the proceedings of the aforesaid meetings. the dispute was compromised and the petitioner along with his family members walked out of the company as share holders on receipt of rs. 1.50 lacs. what is contended by mr. suri is that this sum of rs. 1.50 lacs includes the sum of rs. 1.10 lac which was deposited by the petitioner as share allotment money. i do not agree with this submission. the dispute in the suit had nothing to do with the sum of rs. 1.10 lac that was lying in deposit as share allotment money. in ease the amount of rs. 1.50 lacs was to include the share allotment money as well it would have been so mentioned in the statement. significantly, as is clear from the statement the amount of rs. 1.50 lacs was being paid by defendants 4 to 14 in the suit through shri om parkash and not by the company. it is only with regard to those 62 equity shares that the plaintiffs in the suit including the petitioner had no claimwhatsoever with the company. may be, that the company has reversed the entry of rs. 1.10 lac on 15-9-1988 in its books of account but the petitioner who had no concern with those books cannot be bound by the same nor does this fact go to prove that the claim of the petitioner as now made in the petition was settled in the civil court. 7. there are again some other circumstances which irresistibly go to show that the company has not come out with a true defence. when the petitioner served a registered notice on december 6, 1990 calling upon the company to return the amount, the company sent a registered letter informing the petitioner that it had received an empty registered envelope. it is difficult to believe that a creditor who is seeking the return of his money from the debtor will send an empty registered envelope as alleged by the company. when other letters were sent by the petitioner, the company claims to have sent a reply as per its letter dated january 2, 1991. the petitioner has denied the receipt of this letter and the company has not cared to file a copy of the same. again, when registered notices under s. 434 of the act were received by the company, it is stated to have sent the replies copies of which have been produced as annexures r4 and r5. the petitioner in replication categorically denies having received any of these replies. it is not known as to how these replies were sent. learned counsel for the company states that these letters were sent under certificate of posting. certificate of posting from the postal authorities has not been produced on the record and no reference to it has been made in the written statement. even otherwise, no reliance can be placed on these certificates of posting as it is a matter of common knowledge that these can be procured at any time on the asking. not only this, what is surprising is that when the registered letter dated december 6,1990 (annexure p4) was sent to the company, it chose to send its reply by registered letter (annexure p5) informing the petitioner that an empty registered envelope had been received. when replies to the statutory notices were allegedly sent, the same have not been sent by registered post but under the certificate of posting. it is true that the act recognises the mode of service of documents on a member by acompany under certificate of posting but in the circumstances of the present case the only inference one can draw from the conduct of the company is that the replies annexures r4 and r5 were never sent by the company and could have been prepared for the purposes of this petition. the net result is that the petitioner kept on claiming the refund of his money and no replies were sent to him and when the present petition was filed it was for the first time that the defence was taken that the amount had been repaid to the petitioner in terms of the compromise in the civil court on september 15. 1988. keeping in view the circumstances of this case and the conduct of the company, i am driven to the conclusion that the defence set up by the company is false and, therefore, it cannot be said to be in good faith nor is it one of substance.8. now coming to the second question, i am of the opinion that the amount lying in deposit with the company had become barred by time when the present petition was filed and this being a good defence in a winding up petition, the same will have to be dismissed notwithslanding the conduct of the company. the amount of rs. 1.10 lacs was given to the company on may 10, 1982 for the allotment of 110 shares in the name of the petiiioner. according to him, his claim for refund of this money would be governed by art. 70 of the limitation act, 1963 (1963 act for brevity) as according to his learned counsel the money is moveable property and having been deposited with the company was sought to be recovered back by the petitioner. in support of this contention, strong reliance was placed on a division bench judgment of this court in zila parishad, ambala v. banarsi dass kapoor, air 1973 p & h 276. if this article is applicable, then the period of limitation for recovering the amount is three years and the time from which this period will begin to run is the date of refusal after demand. according to the allegations made in the petition the demand was made for the return of the money in july, 1990 and again in december, 1990 though the company alleged that the demand was made in july, 1982 when the petitioner wrote a letter in this regard to the company a certified copy of which from the record of the labour court, jalandhar whore it is stated to have been filed in someother proceedings has been produced. it is not necessary to decide as to when the demand was made in the instant case as i am holding that art. 70 is not applicable.9. learned counsel for the company, on the other hand, contended that the return of money in the circumstances of the present case would be governed by art. 24 of the 1963 act according to which the period of limitation is three years from the date when the money was received by the company. the argument is that since three years from the date of receipt of the money are long over the recovery of the amount had become barred by time.10. article 70 of the 1963 act appears in part-vi of the schedule to the said act which deals with moveable property and applies to the recovery of moveable property deposited or pawned from a depository or pawnee. even if one were to assume that money is moveable property as held by some courts, this article would apply to the recovery of the amounts when they were deposited in the strict sense of the term. in the present case, the money was never meant to be kept by the company as a deposit but the same had been paid for the allotment of shares in the name of the petitioner. article 24 is a provisions which specifically deals with the refund of money payable by a defendant to the plaintiff for money received by the defendant for the plaintiffs use. it is this article which will govern the case in hand because the amount was paid to the company for the petitioner's use i.e. for the allotment of shares in his name. according to this article, the period of limitation of three years will run from the date when the money is received. it is common case of the parties that money was received in the year 1982 and the present petition was filed in 1993. the recovery of the amount, on the face of it, had become barred by time.11. in banarsi dass kapoor's case (supra), the plaintiff had filed a suit for the return of security which he had deposited for the due performance of a works contract where as in the present case there is no question of any deposit but the money had been paid to the company for the use of the petitioner for alloting the shares in his name. the question of the applicability of art. 62 ofthe old act which is equivalent to art. 24 of the 1963 act did not arise for the consideration of the learned judges. this judgment is, therefore, of no help to the petitioner. i, therefore, hold that the claim in the instant lease is governed by an. 24 of the 1963 act and the same is barred by time.12. it is well settled that in a winding up petition it is a good defence for a company that the amount claimed from it for the nonpayment of which it is sought to be wound up, is barred by time. consequently, in view of my finding that the claim of the petitioner herein is barred by time, i am left with no option but to dismiss the petition. parties are left to bear their own costs.13. petition dismissed.

Judgment:
ORDER

1. This petition under Ss. 433(e), 434 and 439 of the Companies Act, 1956 (for short, 'the Act') has been filed for the winding up of M/s. Hamco Industries . Private Limited, Muksudan, Jalandhar (hereinafter called 'the Company') on the ground that it isunable to pay its debts.

2. The Company wanted to float some shares with a view to increase its capital. The petitioner, who along with his family members were share holders of the Company applied for allotment of 110 shares in his name and sent the share application form duly filed to the Company along with a sum of Rs. 1.10 lacs as per cheque No. 219479 dated May 10, 1982. The cheque was encashed and the receipt of the amount is admitted by the Company and the same is reflected in its balance sheet. Annexnres P2 and P3 are copies of two balance sheets of the Company for the period ending 31st March, 1993 and 31st March, 1984 in which an amount of Rs. 1.10 lacs is shown to be with the Company representing share application money pending allotment of shares. It is common case of the parties that the Company did not float any fresh shares and, therefore, none was allotted to the petitioner. According to the petitioner, the share money paid by him continued to remain in deposit with the Company for a couple of years. It was in the year 1990 that he demanded the return of his money and he is said to have written some letters in this regard. Not having received any positive response he sent a registered letter dated December 6, 1990 (Annexure P4 with the pet ition) demanding the return of the amount along with interest. It was also stated that in case the amount was not paid, legal proceedings would be initiated for recovery of the same. The Company denied the receipt of thisletter but admitted the receipt of a registered envelope which, according to it, on opening contained nothing. This fact was communicated to the petitioner by a registered letter dated 13-12-1990 (Annexure P5 with the petition). It is incredible that a creditor who is seeking the return of his money would send an empty envelope by registered post without a letter containing his demand for the return of money. Any way, the petitioner wrote another registered letter dated December 20, 1990 calling upon the Company to return the amount with interest. The Company admits the receipt of this letter and the stand taken in the written statement is that a reply was sent as per letter of the Company dated 2-1-1991. Receipt of the reply has been denied by the petitioner in the replication and the Company has not filed a copy of the letter dated 2-1-1991. The petitioner then sent registered notice through counsel in January, 1991 and again in September, 1992. These notices were sent under S. 434 of the Act claiming the return of the amount of Rs. 1.10 lacs which was lying in deposit with the Company. When the petitioner did not get any reply from the Company the present petition was filed alleging that the Company was unable to pay its admitted debt. It is also pleaded that the Company on receipt of registered notices had for 3 weeks thereafter neglected to pay the amount nor did it secure or compound the debt to the reasonable satisfaction of the petitioner and, therefore, it should be deemed to be unable to pay its debts within the meaning of S. 433(e) and 434 of the Act.

3. In the written statement filed on behalf of the Company some preliminary objections have been raised. It is admitted that the petitioner has deposited the amount of Rs. 1.10 lacs as alleged by him. The case of the Company is that this amount was paid back to him in the year 1988. It is also pleaded that the amount as claimed by the petitioner has become time barred as it was deposited in the year 1982 and the same could be claimed on or before May 10, 1985. It is further alleged that there were a large number of disputes between the petitioner on the one hand and his brother Shri Om Parkash Gupta, Managing Director of the Company and other members of the Company on the other. According to the respondent, the petitioner and his wife alongwith their children had filed a suit against the Company in the Court of Senior Sub Judge, Jalandhar and the same was compromised on September 15, 1988 and the Company paid a consolidated sum of Rs. 1.50 lacs to settle all claims whatsoever of the petitioner and his wife with the Company. A copy of the statement made by the petitioner in that suit has been attached as Annexure R1 and a copy of the order passed by the Court in that suit has been produced as Annexure R 2 with the written statement. The case of the Company is that the sum of Rs. 1.50 lacs which was paid to the petitioner and his wife on September 15, 1988 while settling the disputes in the suit included the amount of Rs. 1.10 lacs deposited by the petitioner as share allotment money. It is denied that (he Company is unable to pay its debts. On the other hand, it is stated that the Company which is being managed by the brother of the petitioner is doing very good business and has large profits and that the present petition has been filed by the petitioner out of sheer jealousy on this account. The Company also claims to have sent a reply to both the statutory notices received from the petitioner as per its letters dated 11-2-1991 and 1-10-1992 copies of which have been attached as Annexures R4 and R5.

4. The petitioner has filed a rejoinder denying the stand taken by the Company, his stated that the Company has set up a false defence in the petition and this by itself should be a ground to order its winding up. It is further stated that the amount was never repaid to the petitioner and the sum of Rs. 1.50 lacs paid while settling the disputes in the Civil Court (as per Annexure Rl and R2) did not include the share application money and that the said amount was paid to the petitioner by defendants 4 to 14 in the said suit and not by the Company. It has been emphatically denied that the Company ever sent reply to the statutory notices as alleged in the written statement and that Annexures R4 and R5 have been prepared only for the purposes of this petition.

5. I have heard Shri N. C. Sahni, Advocate in support of the petition and Shri L. M. Suri, Senior Advocate for the Company. On the contentions raised before me, the following questions arise for consideration:

1. Whether the amount of Rs. 1.10 lacs which was admittedly lying in deposit with the Company was paid back to the petitioner as alleged by the Company.

2. Whether the claim of the petitioner has become barred by time.

6. As regards the first point, the receipt of the amount for the allotment of shares is not disputed by the Company and, therefore, the onus to prove that the said amount was paid back to the petitioner lies on the Company. To discharge this onus and to satisfy this Court that the amount was repaid the Company has placed strong reliance on two documents Annexures R1 and R2. Annexure R1 is the certified copy of the statement made by the petitioner in the Court of Senior Sub-Judge, Jalandhar in civil suit No. 102 of 1985. As is clear from the title of the suit the same was filed by the petitioner along with his wife and three minor children against the Company, its Managing Director and Smt. Suder-shan Goel and defendants 4 to 18. The suit was declaration to the effect that plaintiff No. 1 (petitioner herein) was the owner and holder of 25 equity shares of the denomination of Rs. 1,000/ - each of the Company. Plaintiff No. 2 claimed to be the owner and holder of 25 equity shares in the Company and plaintiffs Nos.3 and 4 were the owners and holders of 5 equity shares each and plaintiff No. 5 was the owner and holder of two equity shares, each share being of the denomination of Rs. 1,000/-. A further declaration was sought to the effect that the extraordinary genera! meetings of the share holders of the Company held on August 6, 1982 and August 10, 1982 were illegal, unlawful and ultra vires the bye-laws of the Company and the business transacted in the two meetings was also illegal and unlawful. A permanent injunction was sought seeking to restrain defendants 4 to 18 therein from posing, working and acting as owners and holders of the aforesaid 62 equity shares. Lastly, a mandatory injunction was also sought against the Company and its Directors to treat the plaintiffs including the petitioner herein as share holders of the Company holding the aforesaid 62 equity shares of Rs. l,000/-each. It appears that the petitioners and his family members were holding 62 equity shares in the Company which the latter had transferred in favour ofdefendants 4 to 18 in the suit in the two meetings mentioned above and it was to challenge these proceedings that the suit was filed. This was, indeed, the only dispute in the suit which was settled between the parties. The petitioner and his family members were eased out of the Company as sharehoiders on a payment of Rs. 1.50 lacs. The petitioner who was plaintiff No. 1 in the suit made the following statement in Court on 15-9-1982:

'Since I have effected compromise with my brother Om Parkash and Sudershan Kumari his wife and have received Rs. 1.50 lacs from defendants No. 4 to 14 through Om Parkash defendant No. 2 towards my full and final settlement, so I do not want to proceed with this suit. I and my wife cease to have any share, claim or interest in M/s. Hamco Industries too from today onward. I withdraw my suit. It be dismissed.

Annexure R2 is the order of the Senior Sub-Judge dismissing the suit as withdrawn. A reading of the aforesaid statement made by the petitioner along with the title of the suit makes it clear that the dispute in the suit was only with regard to 62 equity shares held by the petitioner and his family members which were transferred by the Company in its extraordinary general meetings held on August 6, 1982 and August 10,1982. The petitioner and his family members challenged these proceedings by way of a suit as also the proceedings of the aforesaid meetings. The dispute was compromised and the petitioner along with his family members walked out of the Company as share holders on receipt of Rs. 1.50 lacs. What is contended by Mr. Suri is that this sum of Rs. 1.50 lacs includes the sum of Rs. 1.10 lac which was deposited by the petitioner as share allotment money. I do not agree with this submission. The dispute in the suit had nothing to do with the sum of Rs. 1.10 lac that was lying in deposit as share allotment money. In ease the amount of Rs. 1.50 lacs was to include the share allotment money as well it would have been so mentioned in the statement. Significantly, as is clear from the statement the amount of Rs. 1.50 lacs was being paid by defendants 4 to 14 in the suit through Shri Om Parkash and not by the Company. It is only with regard to those 62 equity shares that the plaintiffs in the suit including the petitioner had no claimwhatsoever with the Company. May be, that the Company has reversed the entry of Rs. 1.10 lac on 15-9-1988 in its books of account but the petitioner who had no concern with those books cannot be bound by the same nor does this fact go to prove that the claim of the petitioner as now made in the petition was settled in the civil Court.

7. There are again some other circumstances which irresistibly go to show that the Company has not come out with a true defence. When the petitioner served a registered notice on December 6, 1990 calling upon the Company to return the amount, the Company sent a registered letter informing the petitioner that it had received an empty registered envelope. It is difficult to believe that a creditor who is seeking the return of his money from the debtor will send an empty registered envelope as alleged by the Company. When other letters were sent by the petitioner, the Company claims to have sent a reply as per its letter dated January 2, 1991. The petitioner has denied the receipt of this letter and the Company has not cared to file a copy of the same. Again, when registered notices under S. 434 of the Act were received by the Company, it is stated to have sent the replies copies of which have been produced as Annexures R4 and R5. The petitioner in replication categorically denies having received any of these replies. It is not known as to how these replies were sent. Learned counsel for the Company states that these letters were sent under certificate of posting. Certificate of posting from the postal authorities has not been produced on the record and no reference to it has been made in the written statement. Even otherwise, no reliance can be placed on these certificates of posting as it is a matter of common knowledge that these can be procured at any time on the asking. Not only this, what is surprising is that when the registered letter dated December 6,1990 (Annexure P4) was sent to the Company, it chose to send its reply by registered letter (Annexure P5) informing the petitioner that an empty registered envelope had been received. When replies to the statutory notices were allegedly sent, the same have not been sent by registered post but under the certificate of posting. It is true that the Act recognises the mode of service of documents on a member by aCompany under certificate of posting but in the circumstances of the present case the only inference one can draw from the conduct of the Company is that the replies Annexures R4 and R5 were never sent by the Company and could have been prepared for the purposes of this petition. The net result is that the petitioner kept on claiming the refund of his money and no replies were sent to him and when the present petition was filed it was for the first time that the defence was taken that the amount had been repaid to the petitioner in terms of the compromise in the civil Court on September 15. 1988. Keeping in view the circumstances of this case and the conduct of the Company, I am driven to the conclusion that the defence set up by the Company is false and, therefore, it cannot be said to be in good faith nor is it one of substance.

8. Now coming to the second question, I am of the opinion that the amount lying in deposit with the Company had become barred by time when the present petition was filed and this being a good defence in a winding up petition, the same will have to be dismissed notwithslanding the conduct of the Company. The amount of Rs. 1.10 lacs was given to the Company on May 10, 1982 for the allotment of 110 shares in the name of the petiiioner. According to him, his claim for refund of this money would be governed by Art. 70 of the Limitation Act, 1963 (1963 Act for brevity) as according to his learned counsel the money is moveable property and having been deposited with the Company was sought to be recovered back by the petitioner. In support of this contention, strong reliance was placed on a Division Bench judgment of this Court in Zila Parishad, Ambala v. Banarsi Dass Kapoor, AIR 1973 P & H 276. If this article is applicable, then the period of limitation for recovering the amount is three years and the time from which this period will begin to run is the date of refusal after demand. According to the allegations made in the petition the demand was made for the return of the money in July, 1990 and again in December, 1990 though the Company alleged that the demand was made in July, 1982 when the petitioner wrote a letter in this regard to the Company a certified copy of which from the record of the Labour Court, Jalandhar whore it is stated to have been filed in someother proceedings has been produced. It is not necessary to decide as to when the demand was made in the instant case as I am holding that Art. 70 is not applicable.

9. Learned counsel for the Company, on the other hand, contended that the return of money in the circumstances of the present case would be governed by Art. 24 of the 1963 Act according to which the period of limitation is three years from the date when the money was received by the Company. The argument is that since three years from the date of receipt of the money are long over the recovery of the amount had become barred by time.

10. Article 70 of the 1963 Act appears in Part-VI of the Schedule to the said Act which deals with moveable property and applies to the recovery of moveable property deposited or pawned from a depository or pawnee. Even if one were to assume that money is moveable property as held by some Courts, this Article would apply to the recovery of the amounts when they were deposited in the strict sense of the term. In the present case, the money was never meant to be kept by the Company as a deposit but the same had been paid for the allotment of shares in the name of the petitioner. Article 24 is a provisions which specifically deals with the refund of money payable by a defendant to the plaintiff for money received by the defendant for the plaintiffs use. It is this Article which will govern the case in hand because the amount was paid to the Company for the petitioner's use i.e. for the allotment of shares in his name. According to this Article, the period of limitation of three years will run from the date when the money is received. It is common case of the parties that money was received in the year 1982 and the present petition was filed in 1993. The recovery of the amount, on the face of it, had become barred by time.

11. In Banarsi Dass Kapoor's case (supra), the plaintiff had filed a suit for the return of security which he had deposited for the due performance of a works contract where as in the present case there is no question of any deposit but the money had been paid to the Company for the use of the petitioner for alloting the shares in his name. The question of the applicability of Art. 62 ofthe Old Act which is equivalent to Art. 24 of the 1963 Act did not arise for the consideration of the learned Judges. This judgment is, therefore, of no help to the petitioner. I, therefore, hold that the claim in the instant lease is governed by An. 24 of the 1963 Act and the same is barred by time.

12. It is well settled that in a winding up petition it is a good defence for a company that the amount claimed from it for the nonpayment of which it is sought to be wound up, is barred by time. Consequently, in view of my finding that the claim of the petitioner herein is barred by time, I am left with no option but to dismiss the petition. Parties are left to bear their own costs.

13. Petition dismissed.