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2020 (5) TMI 129 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Financial debt or not - Corporate Debtor has failed to make repayment of its debt - existence of debt and dispute or not - Time Limitation - HELD THAT:- The applicant has failed to file the agreement entered in between the parties regarding the debt, which the applicant claim to be deposited in the account of Desiya Hotel and Resorts P. Ltd. Further, the applicant has also failed to produced any documents to show that what was the agreed term of interest, which applicant are entitled to get in case of default of payment - the applicant has also failed to produce any document to show that as per the agreed terms the Desiya Hotel and Resorts P. Ltd., which was required to repay the loan amount within certain period and if he fails to repay the amount during such period then on that day, the default occurred and that is the reason the applicant claim that the date of default is the date when he sent the notice of demand to Desiya Hotel and Resorts P. Ltd. Time Limitation - HELD THAT:- As per the provision of article 137 of the 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 in my opinion, since the last amount claimed by the applicant was defaulted on December 26, 2014, December 29, 2014 and August 25, 2014 therefore limitation runs from that day. Since this application has been filed on June 27, 2019, therefore, in my opinion it is much after the 3 years as provided under the law. So the present application is also barred by law of limitation. The applicants 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 the I and B Code and further it is found that it 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 and B Code. Therefore, I am unable to accept the contention of the applicant that these deposit annexed as annexure 1 comes under financial debt and they comes under the definition of financial creditor in view of section 5(7) of the I and B Code - this Adjudicating Authority is of the considered view that in absence of any document, the contention of the applicant is not liable to accepted and the applicants fails to prove that there deposit as per annexure 1 comes under the definition of financial debt under section 5(8) of the IBC and deposited amount as claimed is not barred by law of limitation The application filed under section 7 is not according to the provision of law and is not complete thus this application is not liable to be admitted - Application admitted - moratorium declared.
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