Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2022 (3) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (3) TMI 1263 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - Whether the application is filed within the period of limitation and whether the MoUs between the Financial Creditors and Corporate Debtor are executed under proper authorization? - HELD THAT:- Section 18 the acknowledgement of liability should be made before the expiration of the prescribed period for a suit or application in respect of the debt. If the acknowledgement is beyond the said period it does not amount to acknowledgment in terms of Section 18 of the Limitation Act. The Supreme Court held that the statement on which the plea of acknowledgment is founded must relate to a present subsisting liability and indicate the existence of jural relationship between the parties. It is also observed that the debtor and creditor should have an intention to admit such jural relationship, which need not be in express terms but can be inferred by implication from the nature of the admission and surrounding circumstances. It was held that a statement written in the form a cheque will obviously amount to acknowledgement in writing. To disprove the presumption, the drawer of the cheque should bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration and debt did not exist or its non-existence was so probable that a prudent man would under the circumstances of the case act upon the plea that they did not exist. Even circumstantial evidence was held as sufficing to rebut the presumption. If the circumstances so relied upon are compelling the burden may shift to the Applicant. Whether there is any debt which is due to be paid to the Financial Creditors and whether any default in terms of Section 3(12) has been committed by the Corporate Debtor? - HELD THAT:- There is no doubt that this Tribunal has jurisdiction to lift the corporate veil, to understand the genuineness of the transaction. But for the purpose of understanding the genuineness of the transaction, if evidence need to be taken, the Tribunal would not have jurisdiction. In this case, from the terms of the MoU itself, it can be concluded that there is no concluded contract between the parties and that the due date for the debt has not arrived and consequently no default has been committed - The MoUs which are admitted to have been entered into, in the quash petition, are not filed before this Tribunal. However, even if it is accepted that the MoUs dated 25.10.2015 & 23.06.2016 are admitted by the Corporate Debtor, since the obligations under the MoUs stand unfulfilled, the right to file this Petition does not arise. Moreover, in the quash petition several disputed facts with regard to the issuance of the cheques are raised, which require a detailed enquiry which is not within the scope of this Tribunal. The angle of debt becoming due and the angle of the commission of default, the Petition is liable to be dismissed. If the Financial Creditor is bent upon realizing the amounts he has to get the performance of the MoUs done by approaching the appropriate Forum, but not by way of an application under Section 7 of IBC, 2016. Petition dismissed.
|