1 10.cp.239.10 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.239 OF 2010 Creative Health Care Pvt. Ltd. ....Petitioner V/s. RPG Life Science Limited (previously known as RPG Pharmaceuticals Ltd.) ....Respondent ..... Mr.Mahesh Joshi i/by O.P.Soni & Co. for the Petitioner. Mr.Snehal Shah a/w. Mr.Pranav Smpat, Mr.H.N.Thakore i/by M/s.Thakore Jariwalla & Assoc. for the Respondent. .... CORAM : S.J. VAZIFDAR, J. DATE : 15TH DECEMBER, 2010. P.C. :- 1. This is a petition for winding up of the Respondent-company inter alia on the ground that it is unable to pay its debts. 2. It is not without reluctance that I must dismiss this petition on the ground that there is a question of limitation to be tried. 3. The Petitioner’s claim arises on account of goods sold and delivered to RPG Pharmaceuticals Limited on the terms and conditions contained in invoices raised during the period 14th July 2006 and 30th September 2006. 2 10.cp.239.10 4. RPG Pharmaceuticals Limited having failed to pay the amount despite the Petitioner having served a statutory notice dated 25th October 2007, the Petitioner filed Company Petition No.291 of 2008 against it. 5. However, in the meantime, by an order dated 14th December 2007, this Court approved a scheme of amalgamation between the RPG Pharmaceuticals Limited and the Respondent as a result whereof, all the liabilities of RPG Pharmaceuticals Limited stood vested in the Respondent. In view thereof, Company Petition No.291 of 2008 was dismissed. The Petitioner’s appeal against the order being Appeal No.222 of 2009 was dismissed on 1st July 2009 6. It appears that the Petitioner unfortunately did not make an application for continuing Company Petition No.291 of 2008 against the present Respondent on the ground that normally in a scheme of amalgamation where the liabilities of the transferor company stand vested in the transferee company, any pending litigation is to continue against the transferee company. That the Petitioner may do so even now after seeking restoration of Company Petition No.291 of 2008 is a different matter. In the present petition, I cannot say anything in that regard despite the unfortunate situation the Petitioner finds itself is. In the event of such an application being permitted and the present Respondent being brought on record in Company Petition No.291 of 2008, the Petitioner’s claim would be well within time. 3 10.cp.239.10 7. However, the Petitioner, thereafter, served a afresh statutory notice and filed the present petition. By the time this petition was filed, the claim stood barred by limitation. This, of course,is only a prima facie view. It is contended for instance that the correspondence read as a whole, contains an acknowledgment of liability, within the period of limitation. That must be decided in appropriate proceeding, if any, are filed by the Petitioner. 8. Further it is always open to the Petitioner if it chooses to file a suit to seek the exclusion of time, taken in prosecuting Company Petition No.291 of 2008 and this petition. The contentions of the parties in that regard are kept open. 9. With the above observations, the Company Petition is dismissed but with no order as to costs. -