2019 (12) TMI 1120

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tal is Rs. One Crore Only. 5. Brief facts of the case are as follows; (i) The Applicant is an RBI registered Non-Banking Financial company (NBFC), which is engaged in the business of granting loans and financing facilities. In the month of December 2015, the Corporate Debtor approached the Applicant for seeking certain unsecured loans and after verifying the financial health of the Corporate Debtor, the Applicant agreed to advance a loan for a total sum of INR 6.75 crore to the Corporate Debtor ("Loan") on specific DATE MODE AMOUNT(INR) 04.12.2015 Via Bank Transfer 25,00,000/- 19.04.2016 Vide RTGS 10,00,000/- 26.04.2016 Vide RTGS 1,50,00,000/- 26.04.2016 Vide RTGS 50,00,000/- 27.04.2016 Vide RTGS 2,00,00,000/- 29.04.2016 Vide RTGS 1,65,00,000/- 30.04.2016 Vide RTGS 9,00,000/- 30.04.2016 Vide RTGS 16,00,000/- 07.05.2016 Vide RTGS 50,00,000/- Total 6,75,00,000/-  Terms that the loan shall be advanced the interest rate of 10% per annum and that the said Loan shall be repayable on demand by the Applicant. (ii) The said loan on INR 6.75 crore was advanced by....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....t though the corporate debtor did not make interest payment on the financial facilities that were availed by it from the applicant, but the corporate debtor for reasons best known deducted TDS under Section 194A of the Income Tax Act and deposited the same with Tax Authority. 8. Which shows that there are contradictions in the statement of the applicant given in the original petition and in the amended application, earlier applicant claims that interest was paid by the corporate debtor from 2014 to October, 2016 and principal amount was paid from January 2016 to February 2016 and subsequently he changed the statement by filing amended application that no interest is paid by the corporate debtor but TDS has been deducted, why such contradictory statement is made by the applicant in Part-IV column 1, that is not explained. 9. Therefore, it appears to Adjudicating Authority that applicant is trying to conceal facts and i.e. the reason he has given the contradictory 'statement about payment of interest by corporate debtor. Further, this Adjudicating Authority find that date of default is not specifically mentioned in the application in the Part-IV column 2 of the application.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... produced by the Financial Creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is 'due', i.e., payable unless interdicted by some law or has not yet become due in the sense that it is payable at some further debt. It is only when this is proved to the satisfaction of the adjudicating authority may reject an application and not otherwise". 15. So, on the basis of aforesaid decision, I am unable to accept the contention of applicants that the date of default is the date of notice sent by the applicants to the Corporate Debtor. If the date of notice is not treated the date of default, then according to the averments made in Part IV of the application, the last payment made by the applicant on 07.05.2016, whereas this application has been filed on 21.06.2019. 16. As per the provision of Article 137 of Limitation Act, so far the recovery of money is concerned, the person is required to file the application within three years when the cause of action arises. 17. Here the case in hand , the applicants has failed to show what is the date of cause of action or what is the date of actual default. Therefore ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ty, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 19. Mere plain reading of provisions shows that the financial debt means the debt along with interest, if any, which is disbursed against the consideration for time value of money and includes the debt which has been referred in clause (a) to (i) and when I shall consider the amount which the applicant claim he has paid as per schedule shown in Part IV of Form I, then I find, nowhere in the application the applicant has mentioned that fact that he has deposited the amount against the consideration for time value of money, rather as discussed above there are contradiction in the statements of the applicant regarding the payment of Interest. 20. As I have already stated in the above mentioned paragraph that the applicant failed to produce any document to show that what was the agreed interest in-between the parties on the basis of which money was borrowed. Therefore, the case of the applicant in my opinion, does ....