Salil Kumar Datta, J. - (1.) This is an appeal against an order of Ghose J. dated May 3 and May 13, 1971, rejecting the appellant-company's petition for permanent stay of winding-up proceedings against it.
(2.) The respondent, on service of a notice under Section 434 of the Companies Act, filed a petition stating that a sum of Rs. 3,00,000 was lent and advanced by it to the appellant on a second charge of the assets of the company and the amount was a running loan from year to year shown in the balance-sheets of the company. The loan was acknowledged in the last balance-sheet of the company as on December 31, 1967, and was also otherwise acknowledged in writing by the appellant from time to time. No part of the loan was paid in spite of the notice under Section 434 of the Act and, accordingly, the company should be wound up. This petition, being Company Petition No. 225 of 1970, was admitted by K.L. Roy J. on January 19, 1971, and necessary directions for advertisements were issued.
(3.) The appellant took out judge's summons for permanent stay of the proceedings disputing the claim. It was stated that the fictitious loans were shown as advanced by the respondent to the appellant when both the appellant and the respondent-companies were under common management and, further, a false mortgage on assets of the appellant was created on the basis of the aforesaid loans. The appellant instituted Suit No. 50 of 1970 at Darjeeling for a declaration that the respondent had no legal right to enforce the mortgage. In that suit an injunction was issued on November 26, 1970, restraining the respondent from "proceeding in any action on basis of demands " in the notice under Section 434 of the Act. In any event the claim was barred by limitation as the loan was advanced even according to the respondent some time in 1951. Ghose J. held that the respondent had a prima facie case. An admission of indebtedness in balance-sheets was sufficient acknowledgment under the Limitation Act. Further, the injunction of the Darjeeling court did not prevent the respondent from proving the appellant's inability to pay debt by evidence aliunde apart from the presumption under Section 434. The petition for stay, as already stated, was accordingly dismissed.";