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2021 (1) TMI 615 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - default on the part of Corporate Debtor in repayment of an amount together with the agreed rate of interest, to Financial Creditor - existence of Operational Debt or not - presence of document evidence to show that the aforesaid debt is payable and has not yet been paid - existence of a dispute between the parties or not - HELD THAT:- It is noticed that the foremost objection of the applicant/Corporate Debtor regarding ‘maintainability’ of the IB application is based on the arbitration clause mentioned in Memorandum of Understanding dated 27.12.2010, Joint Development Agreement dated 09.02.2012 and Agreement dated 28.06.2013, which was already been dismissed on 17.02.2020 under separate Interlocutory Application (IA/09/KOB/2020 in IBA/46/KOB/2019), to which an appeal was filed before the Hon’ble NCLAT (Company Appeal (AT) (Insolvency) No. 429 of 2020) and the same was also dismissed as being premature stating that it is open to the learned Adjudicating Authority to decide the application on merits and in the event of the Appellant being aggrieved of the order of admission passed under Section 7, it shall be open to the Appellant to raise all issues in appeal. As regards the allegation that no demand notice has been issued by the Applicant as mandated under Section 8 of the Code, it does not hold ground for the reason that the Application has been filed by the Financial Creditor for recovery of money borrowed as ‘Inter Corporate Deposit’ by the Corporate Debtor against payment of interest. In terms of clause (a) Sub-Section (8) of Section 5 of the I & B Code, the same tantamount to a debt disbursed against consideration of time value of money, which falls within the ambit of ‘Financial Debt’. This Bench is of the view that the provisions of Limitation Act do apply while implementing the provisions of Insolvency Code. Since it is clear that there is an acknowledgement in the records of the Financial Creditor, the Limitation Act are to be examined in the light of the facts and circumstances of this particular case. In the present case, the true extract of statement of accounts maintained by the Financial Creditor clearly depicts that the period of non-payment is from April 2017 and the last date of payment received by the Financial Creditor as 24.11.2017. Indisputably, in the present case, the Financial Creditor itself came out with a pleading with the documents stating the date of default of outstanding principal and interest is from 01st April 2017 till 31st March 2019, as stated in Part IV of the application. Hence, this Bench is of the view that the application filed by the Financial Creditor (TATA Global Beverages Limited) is well within the limitation period and the contention of the applicant that the debt is time barred is to be rejected. Application disposed off.
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