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2019 (12) TMI 1120 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - whether in absence of any document applicant is able to establish that he is financial creditor and respondent is corporate debtor? - Section 7 of IBC,2016 - time limitation - HELD THAT:- It is admitted position of law that to initiate the proceedings under section 7 of IBC, it is not necessary to sent the notice upon the Corporate Debtor and that is the main distinction between the provision contained in Sections 7 and 9 of the IB code - the contention of applicants that the date of default is the date of notice sent by the applicants to the Corporate Debtor, cannot be accepted. If the date of notice is not treated the date of default, then according to the averments made in Part IV of the application, the last payment made by the applicant on 07.05.2016, whereas this application has been filed on 21.06.2019. Tine Limitation - HELD THAT:- As per the provision of Article 137 of Limitation Act, so far the recovery of money is concerned, the person is required to file the application within three years when the cause of action arises - Here the case in hand , the applicants has failed to show what is the date of cause of action or what is the date of actual default. Therefore, since the last amount claimed by the applicant was defaulted on 07.05.2016, therefore limitation runs from that day. Since this application has been filed on 21.06.2019, therefore, it is after the 3 years as provided under the law. So the present application is also barred by law of limitation. The applicant failed to produce any document to show that what was the agreed interest in-between the parties on the basis of which money was borrowed. Therefore, the case of the applicant, does not comes under Section 5(8)(a) of IB Code and also does not come either under (b) or (c) or (d) or (e) or (f) or (g) or (h) or (i) of Section 5 (8) of the I & B Code - Therefore, the contention of the applicant that these payment shown in schedule Part IV of Form-1 comes under financial debt and The applicant comes under the definition of financial creditor in view of Section 5 (7) of the IB Code, cannot be accepted. The applicant failed to bring on record the default recorded with the information utility or such other record or evidence as maybe specified which is necessary to proceed for admitting the petition Under Section 7 of the l&B Code - Application dismissed.
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