TMI Blog2020 (2) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... out costs. - Company Appeal (AT) Insolvency No. 756 of 2018 - - - Dated:- 13-1-2020 - Justice Venugopal M. Member (Judicial), Balvinder Singh Member (Technical) And Dr. Ashok Kumar Mishra Member (Technical) For the Appellants : Mr. Rakesh Kumar, Mr. Anjaneya Mishra, Mr. Aashish Khattar, Mr. Sahil Advocates For the Respondent : Mr.Ritesh Khare, Mr. Pathik Choudhury, Mr. Rajdev Singh, Advocates JUDGMENT VENUGOPAL M. J. The Appellant/Director of Corporate Debtor has filed the instant appeal being aggrieved against the order dated 3rd October, 2018 passed by the Adjudicating Authority ( National Company Law Tribunal ) Mumbai Bench whereby and where under the application filed by the Respondent / Applicant ( Financial Creditor ) (u/s 7 of the I B Code) admitted. Earlier, the Adjudicating Authority ( National Company Law Tribunal ) Mumbai Bench while passing the impugned order dated 3rd October, 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Addressee Left and that the Corporate Office of the Appellant could not be stated as Left and no Substituted Service was ordered and in the absence of the same, there was No effective Service of notice on the Appellant. Apart from that, the Respondent / Applicant had not chosen to serve the Appellant through e-mail though an e-mail address of the Appellant was available with it. 7. The Learned Counsel for the Appellant projects an argument that the Hon ble Supreme Court in Civil Appeal No. 1102 of 2018 in Vashdeo R.Bhojwani Vs. Abhudaya Co-operative Bank and Ors. had observed that if a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. 8. The Learned Counsel for the Appellant submits the cause of action in favour of the Respondent / Applicant in regard to the Appellant s loan default took place on 6th May, 2014 and that in the Recall cum demand notice the entire 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o this effect the affidavit of service was also placed on record and these facts were mentioned in the Impugned Order dated 03.10.2018 passed by the Adjudicating Authority. Therefore, because of the non-appearance of the Appellant / Corporate Debtor , the Adjudicating Authority passed an Ex-parte order on 03.10.2018. 15. Lastly, the Learned Counsel for the 1st Respondent takes a stand that the Learned Adjudicating Authority had rightly held that there was continuous cause of action when Demand Notice dated 17.08.2017 was issued to the Corporate Debtor and hence the Debt is not time barred. 16. At the outset this court relevantly points out that a Hire-Purchase Agreement provides an alternative to an Hirer to purchase the Goods . The said Agreement begins as a Contract of Hire , may result in a complete sale. 17. Section 2(d) of the Hire-Purchase Act, 1972 defines Hire-Purchase price meaning the total sum payable by the hirer under hire-purchase Agreement in order to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their liability is co-extensive. It is to be noted that onus is on the Respondent/Applicant to prove that service of summons on the Debtor Company. Even though on the side of the Appellant a plea was taken that there was no effective service on it by the Respondent / Applicant because of the reason that the notice on the Registered Address of the Debtor Company was returned with an endorsement as Addressee Left and as such no substituted service was either directed or effected upon the Appellant and also that no endeavour was made on the side of the Respondent/Applicant to serve the Appellant in the e-mail address, this Tribunal is of the considered opinion that Master Data of the Debtor / available with ROC) reflected the same address and therefore one can safely and securely come to a conclusion in the instant case that the service was avoided by the party concerned. If a service of notice sent through Regd. Post at the correct address, then, in Law it is a correct mode of service and in this regard a mere bald assertion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses and further that the Liquidation was initiated by the Liquidator. 30. Admittedly, the Loan cum hypothecation agreement was entered into between the parties on 28.03.2013 and the period of 36 equated monthly instalments of ₹ 1,08,775/- per month towards the purchase of car commenced from 30.03.2013 to 30.03.2016 on 06.05.2014, a Loan Recall notice was issued on behalf of the Respondent for termination of loan agreement. It is not in dispute that a payment of Rs. three lakhs through cheque dated 18.03.2015 was made by the Corporate Debtor . 31. The Demand Notice dated 17.08.2017 was issued by the Respondent / Applicant for which the Corporate Debtor and the co-Borrower to the loan agreement had not responded and (not made payment of the outstanding sum of ₹ 29,29,149.74/-. As per Section 3(12) of the I B Code the Corporate Debtor had committed default in respect of a financial debt envisaged u/s 5(8) of the Code. In Law, an Acknowledgement in writing within expiration of prescribed period will mark a new commencement period for limitation to base a claim and the same will not create a new contract. In fact, it only extends the limitation period. Suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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