TMI Blog2019 (12) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, since the last amount claimed by the applicant was defaulted on 07.05.2016, therefore limitation runs from that day. Since this application has been filed on 21.06.2019, therefore, it is after the 3 years as provided under the law. So the present application is also barred by law of limitation. The applicant 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 IB Code and 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 B Code - Therefore, the contention of the applicant that these payment shown in schedule Part IV of Form-1 comes under financial debt and The applicant comes under the definition of financial creditor in view of Section 5 (7) of the IB Code, cannot be accepted. The applicant failed to bring on record the default recorded with the information utility or suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- 30.04.2016 Vide RTGS 9,00,000/- 30.04.2016 Vide RTGS 16,00,000/- 07.05.2016 Vide RTGS 50,00,000/- Total 6,75,00,000/- Terms that the loan shall be advanced the interest rate of 10% per annum and that the said Loan shall be repayable on demand by the Applicant. (ii) The said loan on INR 6.75 crore was advanced by the Applicant to the Corporate Debtor via normal banking channels from December 15 till May 2016, in various tranches. (iii) It is further submitted that despite specific understanding that the interest payment shall be made on time the Corporate Debtor fail to pay interest over the loan, save as except the time when the Corporate Debtor was in need of funds and was getting the same in tranches. Further stated that Corporate Debtor neither returned the Principal amount nor paid any Interest thereon. (iv) Further stated that on 10.05.2019, the Applicant, through c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary 2016 to February 2016 and subsequently he changed the statement by filing amended application that no interest is paid by the corporate debtor but TDS has been deducted, why such contradictory statement is made by the applicant in Part-IV column 1, that is not explained. 9. Therefore, it appears to Adjudicating Authority that applicant is trying to conceal facts and i.e. the reason he has given the contradictory 'statement about payment of interest by corporate debtor. Further, this Adjudicating Authority find that date of default is not specifically mentioned in the application in the Part-IV column 2 of the application. 10. Further in the Application applicant claim that date of default is the expiry of seven days from sending of demand notice. Now question is whether the date on which notice was sent and when no reply is received within seven days comes under the purview of date of default. 11. Applicant also placed reliance from the order passed by the Ahmedabad Bench on 19.09.2017 in V.R. Polyfab (P.) Ltd. v. Sadbhav Enterprise (P.) Ltd. [2018] 92 taxmann.com 145 (NCLT - Ahd.). 12. It is matter of record that neither written agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the date of default is the date of notice sent by the applicants to the Corporate Debtor. If the date of notice is not treated the date of default, then according to the averments made in Part IV of the application, the last payment made by the applicant on 07.05.2016, whereas this application has been filed on 21.06.2019. 16. As per the provision of Article 137 of 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. 17. 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 pinion, since the last amount claimed by the applicant was defaulted on 07.05.2016, therefore limitation runs from that day. Since this application has been filed on 21.06.2019, therefore, in my opinion it is after the 3 years as provided under the law. So the present application is also barred by law of limitation. 18. Apart from that, I would also like to consider this aspect, whether the applicant has succeeded to establish that the amount which he claimed to pay as debt to respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in clause (a) to (i) and when I shall consider the amount which the applicant claim he has paid as per schedule shown in Part IV of Form I, then I find, nowhere in the application the applicant has mentioned that fact that he has deposited the amount against the consideration for time value of money, rather as discussed above there are contradiction in the statements of the applicant regarding the payment of Interest. 20. As I have already stated in the above mentioned paragraph that the applicant 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 in my opinion, does not comes under Section 5(8)(a) of IB Code and I further find 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 B Code. Therefore, I am unable to accept the contention of the applicant that these payment shown in schedule Part IV of Form-1 comes under financial debt and The applicant comes under the definition of financial creditor in view of Section 5 (7) of the IB Code. 21. For the reasons discussed above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
