ASHIM KUMAR BANERJEE,J. - (1.) THIS appeal would relate to a decretal claim that was passed by Madras High Court on January 3, 1992. The appellant obtained the ex parte decree from the Madras High Court, as the respondent did not contest the same. In 1998 the appellant obtained certified copy of the decree and applied for transmission of the same to this Court for execution, as the respondents were based at Calcutta. Subsequently, the appellant filed a winding up petition being C.P. No. 289 of 2001 before this Court. During pendency of the winding up proceeding, the respondent filed an application for setting aside of the ex parte decree upon receipt of a notice for execution issued by this Court. The respondent made an application on September 25, 2003 for recall of the ex parte decree along with an application for condonation of delay of 4248 days. By an order dated September 30, 2003 appearing at page 143-144 of the Paper Book the Madras High Court stayed the operation of the decree for a period of four weeks that was subsequently extended and directed to continue until further orders.
(2.) ON June 9, 2004 the winding up petition came up for hearing. Since the operation of the decree was stayed, the winding up petition based on the said decretal claim was not pressed and as such was dismissed for non-prosecution with liberty to apply afresh if occasion would arise in future. The order of stay so passed by the Madras High Court continued. On October 6, 2007 the Madras High Court passed a further order appearing at page 195-197 wherein the Court asked the respondent to deposit a sum of Rs.20 lacs to show their bona fide. The matter was adjourned. The matter again appeared before the Madras High Court on November 19, 2007 when the Court modified the earlier order by permitting the respondent to furnish bank guarantee to the extent of Rs.15 lakhs and payment of Rs.5 lacs to the decree-holder. No appeal was preferred. The respondent neither paid the said sum of Rs.5 lacs nor furnished the bank guarantee. The matter again came up on August 10, 2009 when the present application made in 2003 as also the modification application made in 2007 as also the application for condonation of delay were dismissed vide composite order dated August 10, 2009 appearing at pages 205-210. The order of stay so granted in 2003 stood vacated in 2009. The appellant issued a fresh statutory notice of remand on February 14, 2011 and filed winding up petition in March 2011 verified by an affidavit affirmed on March 31, 2011 inter alia praying for winding up of the respondent. The learned Single Judge vide judgment and order dated November 15, 2011 appearing at page 101- 102 permanently stayed the winding up proceeding. His Lordship held that the claim was barred by limitation in view of Article 136 of the Schedule to the Limitation Act, 1963. Hence, this appeal by the appellant. Learned senior counsel appearing for the appellant drew our attention to Article 136 to say that the period when the operation of the decree remain stayed should be excluded for the purpose of computation of the period of limitation. According to him, the decree would only be enforceable once the fetter was withdrawn and that happened only when the application for setting aside was dismissed vide judgment and order dated August 10, 2009. The winding up petition was filed in 2011 hence, it was well within the time of limitation. To support his contention he relied upon four decisions of the Apex Court which are as follows : 1. Pentapati China Venkanna and Ors. Vs. Pentapati Bangararaju and Ors. reported in All India Reporter 1964 Supreme Court page-1454; 2. Deep Chand and Ors. Vs. Mohan Lal reported in All India Reporter 2000 Supreme Court page-1760; 3. Ratansingh Vs. Vijaysingh and Ors. reported in All India Reporter 2001 Supreme Court page-279 4. Akkayanaicker Vs. A.A.A. Kotchadainaidu and Anr. reported in 2004 Volume 12 Supreme Court Cases page-469; He prayed for setting aside of the judgment and order coupled with an order of admission of the winding up proceeding.
(3.) OPPOSING the appeal Mr. Debangshu Basak, learned counsel relied upon the Division Bench Decision in the case of Bangur Foundation Limited Vs. Esjey Corporation reported in 2004 Volume-I Calcutta High Court Notes page 621. Paragraph-27 of the said decision being relied upon is quoted below : "Consequently, we are also unable to agree with the views expressed by the learned Single Judge in the case of Rameswar Prosad Kejriwal and Sons. (supra), relied upon by Mr. Ghosh, since the learned Judge has proceeded on the basis that the recoverable debt had crystallised in a decree of 1997 and the winding up petition could not have been filed after a period of three years from the date of such decree, having regard to the period of limitation prescribed under Article 137 of the Limitation Act, 1963. We respectfully repeat that the recoverable debt in respect of a money decree is not barred by limitation after a period of three years from the date of decree and that the same is executable within a period of 12 years thereof, and as such can form the basis for a winding up petition under section 434(1)(a) and/or 434(1)(b) of the Companies Act, 1956." Mr. Basak also relied upon the decision in the case of Manohar S/o Shankar nale & Ors. Vs. Jaipalsing S/o Shivlalsing Rajput & Ors. reported in 2008 Volume ­ I Supreme Court Cases page 520 to support his contention in relation to Article 136 of the Limitation Act. He contended that the decree was of 1992. Article 136 would permit the decree-holder to complete the execution within 12 years from the date when it was enforceable. The money decree was enforceable on the date of passing of the decree. Hence, a period of 12 years expired in 2004. He further contended that order of stay was passed by the Madras High Court on September 30, 2003 after 11 years 8 months 27 days. Hence, the decree-holder would at best get the benefit of the period when the decree was stayed only to the extent of the residuary period being about three months three days. The order of stay stood vacated in 2009 whereas the winding up petition was presented in 2011. Hence, it was hopelessly barred by laws of limitation. He further contended that the Apex Court decisions cited by the appellant referred to above and Article 136 would rather support his contention.;