TMI Blog2019 (12) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.2018 to 28.02.2019, is in lieu of amount advanced by the applicant to the corporate debtor on 04.11.2010, 19.11.2010, 15.02.2011 and 08.11.2012. This document is also not sufficient to establish that the interest was paid prior to that period. Since, there is no other document to establish that on the amount shown in column 1 part IV, the interest was regularly being paid to the applicant by the corporate debtor, I am unable to place reliance upon this document. Time Limitation - HELD THAT:- The applicant has not produced any document, (same as referred in part V), therefore, it is admitted fact that the said debt of the applicant has not been acknowledged and so far as the document, which the applicant claimed, that the last interest has been paid in the financial year 2018-19, is the date of default is concerned, in my opinion, it is not liable to be accepted because there is no such agreement on the record to show that, when the applicant was entered into an agreement to the Corporate Debtor for providing financial assistance and what was the due date for repayment of the said amount in the absence of any specific period within which the amount is required to be refunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid amount, thereafter, the Corporate Debtor has failed to pay interest and has defaulted in paying the interest, which is legitimately due to the Applicant/ Financial Creditor. (Copy of latest TDS Certificate are annexed as Annexure A/4). (iv) Applicant stated that despite several notices and reminders the Corporate Debtor has failed to make the legitimate payment of interest to the Applicant/ Financial Creditor. (A copy of E-mail is annexed as Annexure- A/5). (v) Further stated that vide letter, dated 28.06.2019, Sh. Hariom Anand, Managing Director of the Company was requested to return the entire loan amount and the interest accrued thereon but Corporate debtor have failed to pay heed to the aforesaid letter. (Copy of the Letter, dated 27.06.2029, along with postal receipt is annexed as Annexure- A/6). (vi) Hence, stated that as on 28.02.2019, the Corporate Debtor is liable to pay sum of ₹ 26,29,375/- to the Applicant as per ledger account issued by the Corporate Debtor. Further, the Corporate Debtor is liable to pay Interest of ₹ 18,750/- per month with effect from 01.03.2019 till 31.07.2019, along with future and pending interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 25.02.2019. 9. In the light of the that submission, I have gone through the averment made in the petition filed on behalf of applicant/ financial creditor and on careful consideration of the same, I find, in column No.2 of Part IV, the applicant mentioned the date of default is on 31.07.2019 and the amount on which the applicant claimed as per the date of default is of ₹ 27,23,125.00/- (Rupees Twenty Seven Lakhs Twenty Three Thousand One Hundred and Twenty Five Only). Part V, which relates to the particular of financial debt (Documents, Records and Evidence of Default) from serial No.l to 7, the applicant mentioned this fact that 'Not Applicable' and at serial No.8, which relates to the list of other documents, he mentioned that 'The Ledger account issued by the corporate debtor and the copy of bank passbook of the applicant showing the interest paid by the corporate debtor'. 10. Now, before making any comment, I would like to refer Section 7(1), (2) and (3) of the Insolvency and Bankruptcy Code, 2016, which is as under :- Section 7: Initiation of corporate insolvency resolution process by financial creditor: (1) A fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial assistance subject to payment of interest, is not attached. Of course, the applicant has filed his passbook, which would be evident from serial No.8 of Part V to show that the corporate debtor has deposited some amount in the account of applicant/ financial creditor, 14. At this juncture, I have gone through the document, which has been mentioned at serial No.8 Part V as Annexure- A/9 and on perusal of the same, I find, this is not the document issued by the concerned Bank, because it does not bear the signatures of the authority, who has issued the said document, of course, it has been attested by the notary, but in my opinion, notary is required to attest the document, which is the copy made from the original issued by the competent authority. Here the applicant placed reliance upon this document in order to establish that the amount shown in his account was being transferred by the corporate debtor in lieu of interest after deducting the TDS, but since that document is not authenticated by the concerned Bank, therefore, in my opinion, the said document is not admissible under the Banking Evidence Act and that is the reason, the applicant has not referred this docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of that decision is different from the facts of the case in hand, because here in the case in band, there is no acknowledgement of debt of the Corporate Debtor and the document, which the applicant placed reliance has not been referred at serial No.7, which relates to the bankers book rather it is referred at serial No.8 and I have explained the reasons for not placing reliance upon that document, therefore, the decision upon which the applicant has placed reliance, is not applicable, under the facts and circumstances of the case in hand. For the reasons discussed above, in my opinion, applicant has failed to establish an amount i.e. ₹ 25,00,000/- claimed by the applicant comes under the definition of financial debt and the applicant is financial creditor. 18. At this stage, I would also like to mention this fact that apart from the aforesaid document, which I have referred in the aforementioned para, the applicant has not produced any other document as referred in column 5 Part V, which relates to the latest and complete copy of the financial contract reflecting all amendments and waivers to date. Therefore, in my opinion, even if it is presumed that the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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