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2019 (2) TMI 1040
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.... wife and husband, First Applicant is husband, Second Applicant is the wife of the First Applicant. As per the particulars of financial debt given in Form-I filed u/s 7 of the Code r/w Rule 4 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, these Applicants disbursed the monies to the Corporate Debtor as follows: PART-IV PARTICULARS OF FINANCIAL DEBT 1. Total amount of debt granted date(2) of disbursement Sl. No. Cheque No. Date Drawn on Amount Rs. 1. 005854 01.11.2002 HSBC Bank 50,00,000 2. 005865 06.01.2003 HSBC Bank 25,00,000 3. 841264 01.03.2003 Punjab National Bank 50,00,000 4. 011145 07.08.2003 Indian Overseas Bank 25,00,000 5. 829107 13.08.2003 Indian Overseas Bank 25,00,000 6. 829112 12.09.2003 Indian Overseas Bank 35,00,000 2. Amount claimed to be in default and the date on which the default occurred (attach the workings for computation of amount and dates of default in tabular fo....
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.... Debtor. By the time the Corporate Debtor was incorporated, M/s. Radha Exports already paid Rs. 1,08,15,660 to the First Applicant as given below: PAYMENTS FROM RADHA EXPORTS - SOLE PROPRIETORSHIP CONCERN DATE Bank Name Cheque No. FAVOURING Amount Rs. 01.10.2003 Canara Bank 586096 CHENNAI CUSTOMS -DD 5,305,000 12.12.2003 American Express Bank 696401 K. JAYARAM 1,660,000 14.02.2004 American Express Bank 696420 K. JAYARAM 2,00,000 15.03.2004 Canara Bank 165394 DD 1,75,000 18.03.2004 American Express Bank 696468 K. JAYARAM 700,000 22.04.2004 Cash 150650 K. JAYARAM 124,650 04.05.2004 American Express Bank 696601 K. JAYARAM 700,000 29.06.2004 Standard Chartered Bank 685321 K. JAYARAM 1,000,000 03.07.2004 American Express Bank 696671 DEPOSIT 200,000 09.07.2004 American Express Bank 696689 K. JAYARAM 550,000 14.07.2004 Canara Bank 795937 K. JAYARAM 200,000 1,08,14,650 7. To fortify that partnership firm M/s. Radha Exports made the above payments to the Applicants,....
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....s. Radha Exports (Proprietary Concern of Mrs. Radha Gowri W/o. Mr. Krishnan) on various dates from NR A/c during the Financial Years 2001-02, 2002-03 & 2003-04 and amount outstanding from M/s. Radha Exports to me on 31.3.2004 is Rs. 1,39,60,000 (Rupees One Crore Thirty Nine Lakhs Sixty Thousand only). Further during the Year 2004-05, I have transferred a sum of Rs. 10,00,000 (Rupees Ten Lakhs) to M/s. Radha Exports by Account Payee cheque from my NR A/c. Out of the aforesaid sum, I have requested to transfer a sum of Rs. 90,00,000 (Rupees Ninety Lakhs) to my Wife A/c Mrs. Shoba Jayaram for allotment of shares in Radha Exports (India) Pvt. Ltd. I am a NRI and I am doing business outside India for many years. And I operate my NR A/c with IOB Mahalingapuram Branch, I have advanced this money to Radha Exports out of my Savings in NR A/c at HSBC (A/c Nos: 041 063934006, 041 063934007, 041 529371006), & IOB (SB A/c No: 17182). Further, I also confirm that we were residing at No. 34, Gill Nagar 2nd Street, Choolaimedu, Chennai-94 in India and proof of our residence (EB Copy, Ration Card, Credit Card Statement and NR Bank A/c Copies) is also enclosed for your ver....
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....08.2004 Standard Chartered Bank 784253 K. JAYARAM 200,000 01.09.2004 Standard Chartered Bank 158759 K. JAYARAM 1,000,000 07.10.2004 Standard Chartered Bank 180945 K. JAYARAM 300,000 15.11.2004 Standard Chartered Bank 883771 K. JAYARAM 150,000 11.12.2004 ING Vysya Bank 361566 K. JAYARAM 100,000 01.01.2005 ING Vysya Bank 458378 K. JAYARAM 500,000 12.02.2005 Standard Charted Bank 643098 K. JAYARAM 200,000 10.03.2005 Standard Chartered Bank 893816 K. JAYARAM 100,000 13.04.2005 ING Vysya Bank 480867 K. JAYARAM 150,000 13.01.2006 Standard Chartered Bank 891386 K. JAYARAM 125,000 09.02.2006 Standard Chartered Bank 988089 K. JAYARAM 125,000 22.02.2006 Standard Chartered Bank 988121 K. JAYARAM 200,000 18.03.2006 Standard Chartered Bank 557809 K. JAYARAM 125,000 23.03.2006 Standard Chartered Bank 298112 K. JAYARAM 500,000 Total Rs. 43,25,000 13. The corporate debtor counsel says that these payments were made to the first Applicant through bank accounts as shown in the Annexure-A3....
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....s, then also this debt being hopelessly barred by limitation because these monies were given by the applicants during the period in between November 2002 to September 2003. The applicants having not stated that part payments were made by the corporate debtor, since the applicants having not initiated within three years from the date of disbursement, this case has to be dismissed. But fact of the matter is, the corporate debtor counsel says, the money taken was repaid in full by 2007 and 2008 itself, this claim made in June 2018 is hit by limitation, and therefore the Company Petition is liable to be dismissed on this ground as well. 17. Now going through the observations we have noted, now the points for consideration are, as to whether any financial debt is in existence in between the parties as on the date of filing petition u/s 7 of the Code and as to whether, assuming the financial debt is in existence, the debt is barred by limitation or not. 18. It is evident from the facts that first Applicant advanced Rs. 2,10,00,000/- Rs. 2,20,00,000, as the case may be, to a partnership firm during the period in between 2002 and 2003. It is also evident on record by 14.07.2004, the ....
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.... been drawn by the corporate debtor; (iii) financial statements showing that the debt has not been repaid; or (iv) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any." 22. By reading sub-regulations of CIRP Regulations along with section 7(3) r/w section 240 of the Code, it could be ascertainable that a financial debt can be construed as proved in three scenarios, one is, if the records are available with information utility, as to information utilities have not yet come into existence this situation is not available, as to scenario two, a financial contract supported by financial statements as evidence of debt, the Corporate Debtor drawing out of monies of facilities and the financial statements showing that the debt has not to be paid shall be established by the financial creditor, alternatively, in scenario three, an order of the Court or Tribunal adjudicating upon non-payment of a debt. 23. Here these Applicants have not placed any material to contemplate that any of these three scenarios is accomplished by this Financial Creditor to prove that it is a financial debt. 24. Why this Adjudicating Authority is requ....
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....nts, then also the debt claim would remain barred by limitation. 28. If the case is based on the financial contract, it is imperative upon the Applicants to prove that no payment was made by filing their financial statements or at least statement of their bank account. The Applicants have not filed any financial statement reflecting that debt has not been paid, on the contrary, the Corporate Debtor has filed statement of accounts reflecting more than One Crore was paid to the Applicants even before the corporate debtor was incorporated. Thereafter, the letters of the Applicants have been filed reflecting that these Applicants themselves addressed letters to the Deputy Commissioner of Income Tax confirming their making a request to the Corporate Debtor to treat Rs. 90,00,000 out of the balance payable to them as share application money of the First Applicant on 11.01.2011. Second Applicant wrote the letter to the same authority confirming that she requested the Corporate Debtor to allot shares to her husband (First Applicant) against the share application money lying in the name of her. Since the Second Applicant, on record having continued as one of the directors of the Corporat....