TMI Blog2021 (6) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under both the provisions, the acknowledgement of debt or payment of debt amount, must be made only before the expiration of the prescribed period of the limitation and not thereafter. Mere plain reading of the provision shows that the application must be filed within three years from the date when the right to apply accrues - when the case in hand is considered, it is noticed that the first date of default is 02.11.2013 and therefore, the application should have been filed within three years from the first date of default of 02.11.2013, i.e., on or before 01/11/2016. Similarly, part payment of debt or acknowledgment of debt should have been made within this period, i.e. on or before 01/11/2016. Admittedly, the subsequently part amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of disbursement of amount due and payable by the allottee as per the applicable payment plan. The Corporate Debtor also made a representation to the Financial Creditors by way of a letter ( NO EMI LETTER ) that they shall not be liable to pay any EMI till the possession of the Unit is handed over by the Corporate Debtor to the Financial Creditors. ii. Further, the Financial Creditors, Corporate Debtor and ING Vysya Bank Limited had entered into a Tripartite Agreement dated 13.10.2007, wherein an amount of loan was agreed to be deposited directly by the bank, for and on behalf of the Financial Creditors in favour of the Corporate Debtor and that the Corporate Debtor shall hand over the title of the Flat on or before Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/2013 and 10/04/2018. 5. Further, the total amount in default is ₹ 49,55,605.08/-, wherein ₹ 24,22,710.76 is the principal sum in default and ₹ 25,32,894.32/- is the compensation claimed for delay in refund. 6. We have heard the Ld. Counsel for the applicant and perused the averments made in the application. 7. Ld. Counsel for the applicant in course of his arguments submitted that since the respondent had paid an amount of ₹ 2 lakhs on 10.04.2018, the application is within time from the date of payment of debt. 8. Now, in the light of the averments made in the application, we consider the submission of the applicant. We went through the application and on perusal of the averments made in Form 1 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing- (1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.--For the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. Explanation.-For the purposes of this section,-Explanation.-For the purposes of this section- (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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