Sudarshan Cargo P. Ltd. vs. M/s. Techvac Engineering P. Ltd. AIR 2014 Karnataka 6.
On account of non-payment of the amounts due under the invoices by respondent to the petitioner there was exchange of correspondence by email between the parties. Respondent company by its email dated 14-01-2010 has informed the petitioner that on account of delay in tie up of its funds payments were not made and respondent has also informed the petitioner that it would be sending its statement of accounts for reconciliation and will make arrangements of funds to pay the dues of the petitioner. Subsequently, on 06-04-2010 there was one more email from respondent to petitioner, whereunder, it has categorically admitted that it is in a position to make a commitment of settling the dues of the petitioner starting from the said month. It is also agreed to, thereunder, that first payment would be made between 10th and 15th of the said month namely April, 2010. Respondent has also categorically stated that it would clear all the dues by the end of May, 2010. Having said so, respondent did not pay the amounts to the petitioner and as such a statutory notice came to be issued by the petitioner on 04-12-2012
The petition was filed u/s. 433(e), (f) and 436 read with section 434 of the Companies Act, 1956 seeking winding up of the respondent Company on the ground that it is unable to pay debt due to petitioner.
An objection was raised that alleged debt due to the petitioner by respondent was time barred. It was contended that invoices were raised by the petitioner during September, October and November, 2008 and present petition has been filed in 2013 and as such debt in question is barred by limitation. Elaborating the submissions it was contended that alleged acknowledgement of debt from respondent to petitioner by email dated 06- 04-2010 is not duly signed by respondent and as such it cannot be construed as an acknowledgement of debt since it does not satisfy the criteria prescribed u/s. 18 of The Limitation Act, 1963. Hence, the petitioner is not entitled to recover the amount alleged to be due from respondent.
The Hon’ble Court observed that the word ‘sign’ or ‘signed’ employed in explanation (b) to section 18(2) has not been defined under the Limitation Act, 1963. Explanation merely says ‘signed’ means either personally or by a agent duly authorised in this behalf. It requires to be noticed that even u/s. 3(56) of the General Clauses Act, 1897 the word ‘sign’ has not been defined but has its extended meaning with reference to a person who is unable to write his name to include mark with its grammatical variation and cognate expressions. Undisputedly, an email is a communication addressed to a definite person and it means a person who is intended by ‘originator’ to receive such electronic record as per section 2(b) of IT Act, 2000 and the ‘originator’ would mean a person who sends or transmits any electronic message to any other person as defined u/s. 2(za) of IT Act, 2000. Thus, if an acknowledgment is sent by a ‘originator’ to the ‘addressee’ by email, without any intermediary, it amounts to electronic communication by email which is an alternative to the paper based method of communication. This mode of transaction is legally recognised u/s. 4 of the IT Act, 2000.
A harmonious reading of section 4 together with definition Clauses would indicate that on account of digital and new communication systems having taken giant steps and the business community as well as individuals are undisputedly using computers to create, transmit and store information in the electronic form rather than using the traditional paper documents and as such the information so generated, transmitted and received are to be construed as meeting the requirement of section 18 of the Limitation Act, particularly in view of the fact that section 4 contains a non-obstante clause. Since respondent did not dispute the information transmitted by it is in electronic form to the petitioner by way of message through the use of computer and its network as not having been sent by it to the petitioner, the acknowledgement as found in the emails dated 14-01-2010 and 06-04-2010 originating from the respondent to the addressee namely, petitioner, such emails have to be construed and read as a due and proper acknowledgement and it would meet the parameters laid down u/s. 18 of the Limitation Act, 1963 to constitute a valid and legal acknowledgement of debt due.
Thus, the Hon’ble Court held that an acknowledgement of debt by email originating from a person who intends to send or transmit such electronic message to any other person who would be the ‘addressee’ would constitute a valid acknowledgment of debt and it would satisfy the requirement of section 18 of the Limitation Act, 1963 when the originator disputes having sent the email to the recipient.
