9911796707
TMI Blog2021 (6) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidate the financial debt. 2. The facts of the petition in short are as follows: i. That by way of a Provisional Allotment Letter dated 17.09.2007, the Corporate Debtor allotted flat No. 06 of Jasmine-I, Upper Ground Floor in its project Hindon Heights ("Project") to the Financial Creditor ("Flat/Unit") for a total price of Rs. 25,15,000/-. A detailed agreement denoting the detailed terms and conditions governing the Unit in the Project was executed on 13.10.2007. As per Completion Letter dated 18.09.2007, the Corporate Debtor, confirmed to the Financial Creditors that the project shall be completed within a period of 18 months from the date of disbursement of amount due and payable by the allottee as per the applicable payment plan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vysya Bank towards the Home Loan Agreement; (iii) pay all outstanding EMIs payable to the ING Vysya Bank under the Home Loan Agreement. 4. Further, pursuant to the Compromise Deed, the Corporate Debtor paid an amount of Rs. 2,42,000/- to the Financial Creditors by way of a draft dated 19.11.2013. But thereafter, the Corporate Debtor failed to honour the terms of the Compromise Deed and after constant follow up, the Corporate Debtor paid an amount of Rs. 2,00,000 in favour of the Financial Creditors on 10.04.2018. As per the averments made in part IV of the application dates of default are 19/11/2013 and 10/04/2018. 5. Further, the total amount in default is Rs. 49,55,605.08/-, wherein Rs. 24,22,710.76 is the principal sum in default an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in Part-IV of the application, it is an admitted fact that the first date of default is 02.12.2013 (at page 21 of the application) and on the basis of subsequent part payment of Rs. 2 lakhs on 10.04.2018, the applicant claimed that since the Corporate Debtor had made part payment and acknowledged the debt on 10.04.2018 and the present application is filed on 31.10.2019, so it is well within time. 11. At this juncture, we would like to refer to Section 18 and 19 of the Limitation Act, 1963 and the same are quoted below: 18. Effect of acknowledgment 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 prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: 19. Effect of payment on account of debt or of interest on legacy.--Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: "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. Provided that, save in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions, when we consider the case in hand, we notice 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. 16. Admittedly, the subsequently part amount of Rs. 200000/- is paid after the expiry of three years from the limitation period. 17. Hence, in view of Section 19 of the Limitation Act, on the basis of the subsequent payment, the period of limitation cannot be extended. 18. Therefore, we are of the considered view that the present application is barred by limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
