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TMI Blog2020 (2) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018 at para 6.4 to 6.6 had observed the following and ultimately admitted the application: - "6.4. It is further noticed that despite number of notices and reminders the Debtor has failed to make the payment. It is also noticed that the Financial Creditor has made due efforts to serve the Petition / Application to the Debtor but the Debtor has left its registered office. The RoC extract does not show any change in Registered Address of the Debtor Company. 6.5. Hence, keeping the facts and submissions in mind this Bench has come to conclusion that, the nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. Further, admittedly there is a "Default" as defined under section 3(12) of the Code on the part of the Corporate Debtor. 6.6 On the basis of the evidences on record and statement of account the Financial Creditor has established that the loan was sanctioned and duly disbursed to the Corporate Debtor but there is non-payment of the Balance Debt on the part of the Corporate Debtor." 2. The Learned Counsel for the Appellant submits that the Respondent'/Applicant's claim was that there was an agreement dated 28.03.2013 between the Appellant and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal sum including interest and future interest was recalled upto 27.03.2016. 9. The Learned Counsel for the Appellant points out that the Hon'ble Supreme Court in the decision "Jignesh Shah & Ors." Vs. Union of India & Ors." reported in (2019) SCC Online SC 1254, and in decision Gaurav Hargovind Bhai Dave Vs. Asset Reconstruction Company (India) Ltd. & Ors. (2019)SCC Online SC 1239 had dealt with the aspect of Limitation under 'I&B' Code. 10. Continuing further, the Learned counsel for the Appellant points out that in the judgement in V.Hotels Ltd. Vs. Asset Reconstruction Company (India) Limited in Company Appeal (AT) (Insolvency) No. 525 of 2019, the observations of the Hon'ble Supreme Court were noted and that similar principles of limitation were laid down in the said judgement. 11. Repelling the contentions the Learned Counsel for the Appellant, the Learned counsel for the 1st Respondent submits that the Appellant / 'Corporate Debtor' repeatedly committed default in making payment of instalment amount as and when due, despite receiving several requests and reminders in this regard from the 1st Respondent / 'Financial Creditor'. Therefore, it is the stand of the 1st R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete the purchase of or the acquisition of property in the goods to which the agreement relates etc. Section 2(e) of the Act speaks of 'hirer'. Section 2(f) specifies the meaning of 'owner'. Section 10 relates to 'right of hirer' to terminate agreement at any time. Section 19 pertains to 'rights' of owner on termination. In fact, the ingredients of Section 20 of the Act, 1972 pertains to restriction of owner's right to recover possession of goods otherwise than through Court. Section 24 concerns with 'discharge' of price otherwise than by payment of money'. 18. Section 25 of the Hire Purchase Act, 1972, enjoins that if the Hirer is declared 'Insolvent' during the continuance of Hire-purchase agreement then, the official receiver or where the hirer is the Company then, in the event of company being wound up, the Liquidator, has the same rights and obligations as an Hirer had in regard to the 'Goods'. An official Receiver or the Liquidator with the permission of the court assign the rights of Hirer under the agreement to any other person and the assignee shall have all the rights and is subjected to all the obligations of the Hirer under the agreement. Besides this, Section 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the registered notice was not served would not be sufficient to discharge the onus cast on an 'Aggrieved person'. 22. As a matter of fact, the Adjudicating Authority had observed in the impugned order that address of the Debtor Company from the Master data is the same for which only the Respondent/Appellant had taken place for sending them hearing notice. Therefore, there was no necessity for a direction being issued for a 'Substituted service' to be effected upon the Appellant. Moreover, non-serving of notice on the e-mail address of the Appellant is not fatal to the present case, as opined by this Tribunal. 23. It cannot be forgotten that for the Demand Notice dated 17.08.2017 of the Respondent / Applicant ('Financial Creditor'), the 'Corporate Debtor' and the coborrower( s) to the Loan Agreement although received the same had not issued a Reply and also not repaid the outstanding sum of Rs. 29,29,149.74/-. Before that on 18.03.2015 through cheque No. 51367 payment of Rs. 3 lakhs was made by the 'Corporate Debtor' and subsequently, the 'Corporate Debtor' has not made any payment towards the Loan outstanding amount. 24. Section 3(8) of 'I&B' Code defines that 'Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase a claim and the same will not create a new contract. In fact, it only extends the limitation period. Suffice it for this Tribunal to make a pertinent mention that if a suit is filed within three years from the last acknowledgement the same is not barred by limitation as per decision Union of India Vs. M.C. Pandey AIR 2009 NOC Page 494 (UTR). Further, an 'Acknowledgement' must be made before the expiration of the limitation period as per Section 18 of the Limitation Act, 1963. An 'Acknowledgement' of Liability not only saves limitation period but also confers on an individual a 'cause of action' to him, to lay his claim. 32. Considering the fact that the Appellant/'Corporate Debtor' had made a payment of three Lakhs through Cheque on 18.03.2015 and that the said payment was made after the issuance of Loan Recall notice dated 06.05.2014 and later a demand notice dated 17.08.2017 was issued by the Respondent to the Appellant / 'Corporate Debtor' and co-borrower in respect of the loan agreement dated 28.03.2018 where the 'Corporate Debtor' had agreed to pay Rs. 1,08,755/- per month beginning from 30.03.2013 to 30.03.2016 and also this Tribunal keeping in mind that the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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