9911796707
TMI Blog2017 (8) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Petitioner shall disburse the loan either in single disbursement or in tranches, the borrower shall arrange to create charge in favour of the lender by way of pledge of 2,98,000 Nos. of equity shares of the Respondent Company aggregating to 14.9% of the fully paid equity capital of the Respondent held by Mr. Sudhir Goenka (HUF), the loan carries an interest of 12% per annum, loan shall be free of interest for a period of four months from the date of disbursement and thereafter, the interest shall become due and payable on the last day of each month, and the loan shall be repaid to the lender after four months, within 15 days of demand from the date of last disbursement. The Respondent executed a Promissory Note for Rs. 3,42,70,000/- in favour of the Petitioner. The above said Mr. Sudhir Goenka, the Pledger executed a Power of Attorney in favour of applicant appointing it as true and lawful attorney to accomplish the purpose of the Agreement of Pledge with full authority in terms of agreement of pledge. Further an Agreement of Pledge of Shares was executed on 15.9.2010 by Mr. Sudhir Goenka in favour of applicant wherein the Corporate Debtor is also a party to the Agreement whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time barred and the Application ought to be dismissed on this ground. This is the contention of the Respondent. For this, the Counsel for the Applicant states that the Respondent doesn't dispute the factum of disbursal of loan amount contends that Article 19 and 21 of the Limitation Act, 1963 which makes a distinction for the money payable for money lent and money lent under an agreement that itself be payable on demand does not apply to this case, however. Article 113, being a residuary section applies to this case since the loan is payable within 15 days from the date of demand, thus making the period of limitation run from 15th day from the date of demand. Here the demand was made by recall notice dated 29.09.2016 which was never honoured by the Respondents within 15 days' time frame, therefore the breach occurred or right to sue accrued when the payment was not made within 15 days from the date of demand, and hence the present application is well within the period of limitation. In support of this argument the Counsel relied on Syndicate Bank v. Channaveerappa Beleri [2006] 11 SCC 506. Further, the Counsel for the Petitioner puts forward another point stating that the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Respondent company were managed by executives of the Abhijeet Group pending completion of acquisition formalities, during the period between September 2010 to August 2013 Abhijeet Group infused funds in the Respondent's plant through the Applicant, the Respondent company suffered unsustainable operational losses under the Abhijeet Group's management, Abhijeet Group when unable to run the operations of the Respondent's company in profitable manner informed the Respondent that they are no longer interested in acquiring the stakes in the Respondent Company and wants to handover the operations back to the Promoters of the Respondent, it was agreed while handing over the operations back to the Respondent by the Abhijeet Group that Abhijeet Group shall not claim the amount infused by them through the Applicant in the Respondent's Company, the Respondent shall not claim for losses suffered during the period when operations of the plant were managed by Abhijeet Group. In view of the above understanding the amount infused in the Respondent's Company was written back as income in the accounts of Respondent's company for the year 2012-13. But, however, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of default as may be specified. The Code nowhere provides that certificate under Bankers' Books Evidence Act 1891 shall be compulsorily attached to the Application. Since the Applicant substantially complied with the provisions of the Code by filing the loan agreement, the statements of account of the Corporate Debtor and Balance Sheet of the Corporate Debtor which clearly shows that amount is owed to the Financial Creditor, this objection of the Corporate Debtor is unsustainable. Further it is not the case of the Corporate Debtor that they have not received the loan amount their contention is the amount received by them is not a loan but a investment for acquiring the controlling interest of the Corporate Debtor by Abhijit group through the Financial Creditor. Hence, the non-production of certificate from a banker under Bankers, Books Evidence, Act, 1891 cannot be fatal to this Application. However, the counsel for the Petitioner produced a certificate issued by Canara Bank, Princep Street Branch, Kolkata, on 19.06.2017, confirming the issue of bank statement of the Petitioner, wherein a sum of Rs. 3.42 Crores was paid to the Corporate Debtor in September, 2010 from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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