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2020 (1) TMI 345 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate debtor defaulted in making repayment - existence of debt and default or not - time limitation - HELD THAT:- The present application has been filed Under Sec 7 of the IB code, the applicant has entered into an agreement with the Corporate Debtor for purchase of the flat and accordingly, as per the Schedule shown in Column No. 1 of Part IV, the applicant made payment to the Corporate Debtor and the total amount as per the Schedule shown is ₹ 3,61,512. Time Limitation - the applicant claims that his debt is within time prescribed under the law - HELD THAT:- Mere plain reading of the provisions shows that it is related to the "possession of immovable property or any interest therein based on title", whereas the case in hand, is the case, where the applicant has paid money for the purchase of flat and on her request the agreement to purchase the flat was cancelled and that was communicated to the applicant on 10th July, 2013, by the Corporate Debtor. And subsequently on 25th July, 2013, the corporate debtor a)so sent the applicant the Xerox copy of the cheque of ₹ 3,61,512 and from column 2 of Part IV this adjudicating authority find that the total amount of default is of ₹ 26,84,277 - Therefore, the applicant is not claiming the possession or title over the immovable property rather she is claiming the amount, which she has paid along with the interest and compensation. Hence, the case of the applicant comes under Article 137 of the Limitation Act ,1963 and not under Article 65 of the aforesaid mentioned Act as claimed by the applicant in his application. Although the application filed by the applicant is within 3 years from 01.12.2016, but the claim of the applicant is barred under Article 137 of the Limitation Act, because date of default is on 10th July, 2013 or 25th July, 2013, when the default occurred and right to apply accrued. Therefore, this Adjudicating Authority is of the considered view that since the right to apply accrues on 10th July, 2013 or 25th July 2013, from that date, applicant was required to claim the debt within three years i.e. on or before 9th July, 2016 or 24th July, 2016, but the present application is filed on 21st July, 2019, hence the claim of the applicant is barred by limitation. This Adjudicating Authority find and hold, claim of applicant is barred by limitation - application not maintainable and is dismissed.
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