9911796707
TMI Blog2024 (8) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... Pooja Land and Premises Pvt. Ltd. is a registered Company, incorporated on 07.02.2007. The Financial Creditor - Manjulaben Mahdulal Karelia has extended loan to the Corporate Debtor of Rs.2 crores on 23.06.2010. Apart from Financial Creditor, her other family members also granted loan to the Corporate Debtor. A Loan Agreement dated 31.12.2010 came to be entered into between the Respondent - Financial Creditor and other family members with the Corporate Debtor, which Loan Agreement contemplated payment of interest @ 12% per annum compounded annually. The loan was repayable along with interest on or before 23.06.2020. (ii) The Corporate Debtor refunded certain amount to other members of the family namely - Krishna Karelia and Dilip Karelia in the year 2015. However amount of Rs.2 crores, which was disbursed by Respondent on 23.06.2010 was not refunded. The Financial Creditor issued Notice dated 18.12.2019 to the Corporate Debtor, claiming an amount of Rs.2 crores, principal amount and Rs.3,92,49,406 as interest. The Notice required the Corporate Debtor to make payment within 15 days, failing which Financial Creditor shall initiate proceedings in appropriate Tribunal and civil proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Appeal was filed by the suspended Director of the Corporate Debtor. 3. When the Appeal was heard on 01.11.2022, the learned Counsel for the Appellant prayed for time to file an additional affidavit seeking details of amount paid of Rs.10,01,16,474/- as reflected in the balance sheet of 2017- 18. In response to the order dated 01.11.2022, an additional affidavit was filed by the Appellant dated 17.01.2023, to which affidavit in reply dated 25.02.2023 has also been filed by the Respondent. 4. We have heard Shri Krishnendu Datta, learned Senior Counsel for the Appellant and Shri Seeshan Hashmi, learned Counsel appearing for Financial Creditor. 5. The learned Counsel for the Appellant challenging the impugned order submits that no debt was due or payable as the Application was filed on 28.04.2020. The Application filed under Section 7 was premature. The Adjudicating Authority arrived at erroneous finding that there is acknowledge of liability of the Corporate Debtor in the balance sheet of 2017-18. The Loan Agreement is insufficiently stamped. The Loan Agreement is a fabricated document. The Loan Agreement contemplated that the Corporate Debtor would secure the loan by creation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor and her other family members is incorrect. In pursuance of the order dated 01.11.2022 passed by this Court to file relevant documents to prove that loan has been extended to the Corporate Debtor by the Romell Real Estates Pvt. Ltd., the Appellant has filed additional affidavit, where no document to prove that loan was extended by Romell Real Estates Pvt. Ltd. has been brought on the record. Only document which has been brought on the record are the letters signed by authorised representative of the Corporate Debtor from 29.07.2015 to 04.01.2016, under which request was made to the Romell Real Estates Pvt. Ltd. to make the payment of different amount to one Mr. Vijay Kamdar. The documents filed by the Appellant in support of the alleged loan by Romell Real Estates Pvt. Ltd. is wholly insufficient and Appellant has filed the letters, which does not prove any loan transaction between the Corporate Debtor and Romell Real Estates Pvt. Ltd. It is submitted that Respondent No.1 Financial Creditor has brought on the record the balance sheet of Romell Real Estates Pvt. Ltd. of the years 2015-16 and 2016-17, which do not refer to any long term or short term loan advanced to the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arelia 21,662,904 Nayana Karelia 4,332,581 Pooja Construction 1,435,000 1,435,000 Sachidanand Dubey 85,000 85,000 Vijay Bhai 1,500,000 1,500,000 Vivek Dubey 135,000 135,000 ISMF Builders (27,888) Pratha Developers Pvt. Ltd. 3,000,000 3,000,000 38,756,468 6,290,000 Total 50,746,468 31,470,000" 9. It is relevant to notice that against the name of the Financial Creditor Manjula Karelia amount mentioned on 31.03.2011 is as Rs.21,662,904 and further in the previous year, no amount was mentioned against Manjula Karelia, which clearly proves that amount reflected in the balance sheet included the interest, since disbursement was only of Rs.2 crores. At this juncture, we may also notice the balance sheets as on 31.03.2014. The balance sheet as on 31.03.2014 refer to long term borrowing of the current year as well as the previous year, which is as follows: "Pooja Land and Premises Pvt. Ltd. B, 1st Floor, Eastern Court, Vile Parle (*** *** BALANCE SHEET AS AT 31ST MARCH 2014 Particular Note No Current Year Previous Year Amount (Rs.) Amount (Rs.) Amount (Rs.) EQUITY & L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Estates Pvt. Ltd. as loan and the balance sheet of the year 2015- 16, 2016-17 and 2017-18, which reflects the said amount is the loan given by Romell Real Estates Pvt. Ltd. and Adjudicating Authority committed error in noticing the same as acknowledgement of debt by the Corporate Debtor. In view of the rival stand taken by the parties, this Tribunal on 01.11.2022, passed the following order: "01.11.2022 : Learned Counsel for the Appellant prays for time to file additional affidavit seeking details of the amount paid of Rs. 10,01,16,474/- as reflected in the balance sheet of 2017-2018. Learned Counsel for the Appellant in the affidavit may also indicate the relevant date with the balance sheet. Relevant documents in support of the loan as claimed by the Appellant Romell should also be given. Learned Counsel for the Resolution Professional as well as Respondent are also permitted to file the Reply to the Additional Affidavit giving other relevant details regarding the aforesaid amount. List this Appeal on 12th December, 2022." 13. By order dated 01.11.2022, the Appellant was directed to file relevant documents in support of the loan as claimed by the Appellant, which is ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gure is reflected in balance sheet as on 31.03.2015. The balance sheet as on 31.03.2015 has noted the figures of Rs.10,01,16,474/-, which we have already extracted above. According to the Appellant, the amount of Rs.10 crore was paid by Romell Real Estates Pvt. Ltd. from 29.07.2015 to 04.01.2016 at the request of the Corporate Debtor. The figure of Rs.10,01,16,474/- already find place in balance sheet of 31.03.2015 by that time the alleged payment by Romell Real Estates Pvt. Ltd. was not even made. In the balance sheet of 2016-17 and 2017-18, the said figure of long term borrowing of Rs.10,01,16,474/- of the previous year and of the year ending 31.03.2017 has been mentioned. It is useful to extract the balance sheet as on 31.03.2017, which is as follows: "POOJA LAND AND PREMISES PRIVATE LIMITED BALANCE SHEET AS AT 31ST MARCH 2017 Particular Note No Current Year Previous Year Amount (Rs.) Amount (Rs.) Amount (Rs.) EQUITY & LIABILITIES Shareholders funds Share Capital 2 205,000 205,000 Reserves and Surplus 3 (32,575,612) (32,335,664) (32,370,612) (32,130,66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2017-18, since name of Respondent No.1 Financial Creditor is not reflected in the balance sheet, hence, there is no acknowledgement within the meaning of Section 18 of the Limitation Act and Adjudicating Authority committed error in reading the acknowledgement. The loan according to the Financial Creditor having been disbursed on 23.06.2010 and the Application having been filed on 20.04.2020, the same is barred by time. 19. The submission of the Appellant that Application is barred by time cannot be accepted. After disbursement of loan on 23.06.2010, there is continuance reflection of the debt in the balance sheet from 2011-12 onwards till 2017-18. The submission of the Appellant is that balance sheet of 2017- 18 cannot be read as any acknowledgement, since the name of Respondent No.1 is not mentioned in the balance sheet as creditor, hence there is no acknowledgement. The submission cannot be accepted, in the balance sheet of 2011-12, name of the creditor along with the amount disbursed to them including Respondent No.1 have been reflected in the column 'unsecured loans' and are subsequently reflected in the balance sheet, which is clear from the extract of balance sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, on the admitted fact situation of the present case, where only the date of default as "8-7-2011" has been stated for the purpose of maintaining the application under Section 7 of the Code, and not even a foundation is laid in the application for suggesting any acknowledgment or any other date of default, in our view, the submissions sought to be developed on behalf of Respondent 2 at the later stage cannot be permitted. It remains trite that the question of limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension or enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced. Indisputably, in the present case, Respondent 2 never came out with any pleading other than stating the date of default as "8-7-2011" in the application. That being the position, no case for extension of period of limitation is available to be examined. In other words, even if Section 18 of the Limitation Act and principles thereof were applicable, the same would not apply to the application under consideration in the present case, looking to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June 2010 i.e. on or before 23rd June 2020). However, the option to drawdown the loan shall be available only for a period of 5 years from the date of this agreement." 5. During the first five years of the loan i.e. till 23rd June 2015, the Borrower shall have the right to repay the loan or any part thereof and then seek disbursement again by giving a 3 days' notice to the Lender family. At the end of 5 years, no further drawdown shall be available save and except the Lender family can replace the loan from one Lender to another as stated in clause 2 above. The Borrower hereby confirms that if he makes any prepayment of the loan after 5 years, he shall not be entitled to draw it back again." 24. Clauses 4 and 5 mentions that outstanding principal amount will be repayable along with interest on the expiry of 10 years from the date of first disbursement of the loan, which was explained in bracketed portion, which reads as "(i.e. 10 years from 23rd June 2010 i.e. on or before 23rd June 2020)". Clause 5 also indicate that the Borrower has right to repay the loan in first five years, i.e. till 23rd June 2015. The above Clauses 4 and 5 when read together, makes it clear that loan co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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