TMI Blog2022 (11) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... incing. The three-cheques bearing no. 964293 dated 22.10.2016 for an amount of Rs. 50,00,000/-, cheque no. 958801 dated 22.10.2016 for an amount of Rs.3,41,250/- and cheque no. 964332 dated 27.10.2016 for an amount Rs.1,72,500/- (copies at page 81 of appeal paperbook) relating to the principal loan amount and the interest thereon were presented in the bank for realisation, when they were dishonoured and the advice notes have been sent by the Central Bank of India regarding dishonouring of the three cheques with the comments Account Closed - While no date of default is mentioned in the promissory note or any other document such loan agreement has been produced, we are of the view that corporate debtor s letter dated 7.6.2016 states very clearly the existence of the loan and also the fact that on depositing the cheque with the bank of Respondent No. 2, the same will definitely be honoured and the dishonouring of cheques will be taken as default for which the financial creditor can take legal action. Thus the date 16.12.2016 has been correctly considered as the date of default by the Adjudicating Authority, which the said cheques were dishonoured. Respondent No. 2 deposited th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2 on 25.10.2019 was clearly barred by limitation, as it was filed after more than 7 years from the date of issue of promissory note. Lastly, he has stated that since the section 7 application has been filed beyond the limitation period, it has been incorrectly admitted by the Adjudicating Authority. 4. We heard the Learned Counsels for both the parties in the matter and perused the record. 5. The Learned Counsel for the Appellant has argued that the Impugned Order has been obtained by Respondent No. 2/Financial Creditor by claiming himself to be a financial creditor without attaching any financial contract to prove that the alleged debt is a financial debt as required under IBC. He has further argued that the section 7 application does not show how the alleged loan was disbursed and the date of default has been taken as 16.12.2016, even though the limitation of the promissory note was over on 23.2.2015, and in view of the fact that there is no acknowledgment of the debt by the corporate debt from 23.2.2015 up to the date of default, namely, 16.12.2016, the application under section 7 is clearly barred by limitation. 6. The Learned Counsel for Appellant has referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the promissory note was executed between him and the corporate debtor for providing a loan of Rs. 50 lakhs, which was disbursed by cheque no.468828 dated 21.2.2012 drawn on the Central Bank of India. He has further argued that since the corporate debtor was paying interest @ of 15% p.a. on the amount given on loan, he had no reason to demand repayment of the amount as per the promissory note till the year 2016, when on non-receipt of timely interest payment he approached the corporate debtor for repayment of the loan amount alongwith interest. He has referred to letter dated 7.6.2016, sent to him by the corporate debtor, wherein the corporate debtor has admitted receiving a sum of Rs. 50 lakhs by cheque no. 468828 drawn on Central Bank of India with interest @ 15% p.a, and whereby the corporate debtor gave cheque no. 964293 dated 22.10.2016 for Rs.50,00,000/- drawn on the corporate debtor s bank Greater Bombay Co-operative Bank, Malad Branch, Mumbai towards repayment of the principal loan amount. He has also referred to two other cheques, viz. cheque no. 958801 dated 22.10.2016 for an amount of Rs.3,41,250/- and cheque no. 964332 dated 22.10.2016 for an amount of Rs.1,72,500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs.341250 was paid on 20.06.2015. Therefore, it is clear, as claimed by Respondent No. 2, that the corporate debtor was paying interest in the years 2014 and 2015 on the loan amount of Rs. 50 lakhs and hence, and so it is logical that the corporate debtor did not demand repayment of the amount of the promissory note. Further, the TDS details updated on 16.7.2014 (attached at pp.99-100 of appeal paperbook) also corroborate the payment of interests by the corporate debtor to Respondent No. 2. Thus, we find the argument of Respondent No. 2 that the question of demanding payment on account of the promissory note during the existence did not arise till June, 2016 when he approached the corporate debtor for repayment of the loan amount convincing. 13. Further, we note that within a period of three years from the date of issue of ledger confirmation of account dated 1.4.2015, the corporate debtor issued a letter dated 7.6.2016 (attached at pg. 80 of the appeal paperbook) wherein the corporate debtor has admitted that Rs. 50 lakhs given by cheque no. 468828 drawn on Central Bank of India was by way of business loan with interest @ 15% p.a. This letter also notes that cheque no. 964 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2016. Therefore, it also supports the contention of the Financial Creditor that the date of 16.12.2016, when these cheques were dishonoured, has been correctly considered as the date of default. 17. We peruse the judgment of this tribunal in the matter of Anita Jindal vs. M/s. Jindal Buildtech Pvt. Ltd. Anr.(supra) cited by the Learned Counsel for the Appellant, to note the facts in this case, the section 7 application was dismissed since the matter related to recovery of past dues, whereas in the present case, it is a clear case of loan amount disbursed to the corporate debtor for running his enterprise, and the loan repayment is in default and therefore the section 7 route for insolvency resolution in the present case is possible. 18. The Learned Counsel for Appellant has also referred to the order of this tribunal in the matter of Prayag Polytech Pvt. Ltd. Vs. Gem Batteries Pvt. Ltd. [Company appeal (AT) (Insolvency) No. 713 of 2019), wherein it is observed by this tribunal that Appellant has failed to show any record showing financial debt to be there, whereas in the present case the existence of a financial debt has been established without any ambiguity. Also, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
