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2019 (12) TMI 566 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Section 7 of the Insolvency and Bankruptcy Code 2016 - amount due and payable - Whether an amount of ₹ 1,29,50,000/- paid by the petitioner to the Respondent Company is a financial debt? - HELD THAT:- The Petitioner in his petition pleaded that the loan was advanced as an understanding between him and the Corporate Debtor and its Managing Director, who happened to be his nephew and that the loan was payable on demand. It is nowhere pleaded that such understanding included the payment of interest against the loan and the rate thereof. There is also no pleading that the payment was made against the issue of shares at a future date. The advancement of the said loan accordingly is not covered under any of the clauses of the definition. There is also no material on record to show that the amount was disbursed against the consideration for the time value of the money - Taking all these aspects into consideration it is accordingly clear, for the purpose of this case, that the amount would not come within the definition of a financial debt, though it is admitted that the petitioner had advanced this amount to meet the fund requirements of the Company - answered in the negative. Whether the Respondent had committed default in paying the said amount? - HELD THAT:- The Respondent Company had not paid back the amount to the petitioner. More so when the payment of ₹ 5 lakhs is not admitted against the loan amount but against an independent unsecured loan. In that view of the matter it is to be held that there has been a default by the Respondent in repayment of the debt, though not financial - issue answered in affirmative. Whether the amount is due and payable to the petitioner? - HELD THAT:- The Application under Section 7 of the IBC is not a suit. Suits relating to money needs to be filed within three years when the amount became due. In the instant case admittedly, there was no time limit agreed upon between the parties for repayment of the amount advanced. The amount payable on demand pleaded by the petitioner could not be extended for an uncertain period. In the absence of any contract between parties the amount needed to be repaid within three years from the date when they were respectively advanced. The amounts accordingly would have been due and payable on or before 14.12.2010, 10.02.2011 and 25.03.2011 respectively. There is no material on record that the Respondent made any admission of debt respectively within these periods or subsequent thereso - Application having been filed only on 13.11.2018 was grossly time barred. The debt accordingly was not due and payable - issue is answered in the negative. Petition not maintainable - petition thus cannot be admitted.
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