- (1.) The only ground on which the creditor's winding-up petition is resisted is of limitation. The company refers to paragraph 6 of the petition to indicate the nature of the claim. It is also necessary, in the context, to see paragraph 7 and the first four lines of paragraph 8 of the petition; "6. In or about the month of February, 2010, the company approached the petitioner for financial assistance by way of short term loans and advances repayable on demand. The company also agreed to pay interest @ 18% per annum on the loan advanced. "7. Upon considering the request of the company the petitioner agreed to lend and advance the desired loan to the company, however, on condition that the said loan shall be repayable on demand and the sum lent shall carry interest @ 18 % per annum. "8. In view of the aforesaid, the petitioner disbursed the said loan of sum of Rs. 1,09,50,000/- (Rupees One Crore Nine Lacs Fifty thousand only) to the company by way of account payee cheques, particulars whereof are mentioned in the schedule given below :"
(2.) According to the company, even the statutory notice of January 28,2013 issued in Hindi made out a case of several loans being granted by the petitioner to the company. The company asserts that the only thin thread by which the claim is pursued is the repayment of a sum of Rs. 25 lakh by the company to the petitioner on April 23, 2010. The company says that if the loans are seen to be distinct and each transaction reckoned from the date that the cheques relating thereto were encashed, the claims in respect of the first ten cheques covered by the chart at page 6 of the petition would be barred by limitation.
(3.) The company refers to Articles 19, 20 and 21 of the Schedule to the Limitation Act, 1963 and Section 61 of the Contract Act as to the application of payment where neither party appropriates, to suggest that the claim is not so free from doubt that the company's inability to pay its debts may be inferred from the conduct of this company.;