Patherya, J. - (1.) IN this winding up petition the claim arises on account of pension payable by the Company to the petitioner on and from the date of resignation, i.e., 1st January, 2005 till August 2009.
(2.) THE case of the petitioning creditor is that, he was employed as the Secretary to the Chairperson of the Company till 31st December, 1997 and in spite of reaching superannuation continued to discharge his functions till 1st January, 2005 during which time he was in the service of the Company. On 17th December, 1999 the petitioning creditor opted for the pension scheme instead of the superannuation fund scheme. Therefore, he became entitled to payment of pension on his leaving the service of the Company and a request was made by him to make payment of his pension dues. The Company called upon him to submit his claim on account of pension scheme by filing proper application to enable processing thereof. Accordingly, a pension application form was forwarded by the petitioning creditor to the Company which has been received by it. In spite thereof, no payment was made and statutory notice under Section 434 of the Companies Act, 1956 has been issued and a reply given thereto. In the said reply the Company has set out various reasons for non -payment of the said pension amount. One of them is filing of a money suit by the Company in the City Civil Court in 2007. The point of limitation has also been taken which is misdirected. Therefore, the only reason for non -payment of pension is filing of money suit being Money Suit No. 581 of 2007 for damages. Damage is an unliquidated claim and cannot be used as a set off for a pension claim. Therefore, orders be passed as sought. In opposing the said application, Counsel for the Company submits that the petition filed under Section 434 of the 1956 Act is motivated and not a genuine application filed by the petitioning creditor. By virtue of this application, the petitioning creditor is not seeking to air his personal grievance. A money suit is pending for adjudication and in view of the Company being solvent so, also the claim barred by limitation, this application merits no orders. It is an admitted position that the petitioning creditor resigned from the Company in November 2004 and the statutory notice was issued in 2009. This has been done with a slanted motive. The pension application form was submitted in 2008, i.e., after the filing of the 2007 suit. Therefore, the defence taken in the letter dated 3rd November, 2005 is bona fide. The statutory notice is issued under Section 434(1)(a) of the Companies Act, 1956 to which a reply has also been given. In proceedings before the Company Law Board the petitioning creditor gave evidence for the Birlas against Lodhas. The petitioning creditor caused disappearance of files in his possession and vacated the flat only in August 2005. The petition is barred by laws of limitation and the only claim which can be made is for the period February 2007 to August 2009. The Company is ready and willing to secure the claim of the petitioning creditor. As the defence raises a bona fide dispute no order be passed on this petition.
(3.) IN reply, Counsel for the petitioning creditor submits that the suit filed by the Company is on account of damages which is an unascertained sum of money. The said cannot be set off against an ascertained sum as damages needs to be quantified. Although security is sought to be offered by the Company, it is for the Court to exercise its discretion and to consider whether a bona fide dispute has been raised in respect of the claim. When the dues is admitted even if security is offered, discretion is not to be exercised. The claim is on account of pension which is an admitted amount payable to the petitioning creditor. The defence is dependent on collateral proceeding and does not consider the advanced age of the petitioning creditor. In view of the recurring cause of action limitation will not apply. In view of : 2004(4) CHN 255 the claim survives.;