2020 (2) TMI 478

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....ssing the impugned order dated 3rd October, 2018 at para 6.4 to 6.6 had observed the following and ultimately admitted the application: - "6.4. It is further noticed that despite number of notices and reminders the Debtor has failed to make the payment. It is also noticed that the Financial Creditor has made due efforts to serve the Petition / Application to the Debtor but the Debtor has left its registered office. The RoC extract does not show any change in Registered Address of the Debtor Company. 6.5. Hence, keeping the facts and submissions in mind this Bench has come to conclusion that, the nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. Further, admittedly there is a "Default" as defined under section 3(12) of the Code on the part of the Corporate Debtor. 6.6 On the basis of the evidences on record and statement of account the Financial Creditor has established that the loan was sanctioned and duly disbursed to the Corporate Debtor but there is non-payment of the Balance Debt on the part of the Corporate Debtor." 2. The Learned Counsel for the Appellant submits that the Respondent'/Applicant's claim was that there ....

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....ok place on 6th May, 2014 and that in the Recall cum demand notice the entire principal sum including interest and future interest was recalled upto 27.03.2016. 9. The Learned Counsel for the Appellant points out that the Hon'ble Supreme Court in the decision "Jignesh Shah & Ors." Vs. Union of India & Ors." reported in (2019) SCC Online SC 1254, and in decision Gaurav Hargovind Bhai Dave Vs. Asset Reconstruction Company (India) Ltd. & Ors. (2019)SCC Online SC 1239 had dealt with the aspect of Limitation under 'I&B' Code. 10. Continuing further, the Learned counsel for the Appellant points out that in the judgement in V.Hotels Ltd. Vs. Asset Reconstruction Company (India) Limited in Company Appeal (AT) (Insolvency) No. 525 of 2019, the observations of the Hon'ble Supreme Court were noted and that similar principles of limitation were laid down in the said judgement. 11. Repelling the contentions the Learned Counsel for the Appellant, the Learned counsel for the 1st Respondent submits that the Appellant / 'Corporate Debtor' repeatedly committed default in making payment of instalment amount as and when due, despite receiving several requests and reminders in this regard from....

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....ase price' meaning the total sum payable by the hirer under hire-purchase Agreement in order to complete the purchase of or the acquisition of property in the goods to which the agreement relates etc. Section 2(e) of the Act speaks of 'hirer'. Section 2(f) specifies the meaning of 'owner'. Section 10 relates to 'right of hirer' to terminate agreement at any time. Section 19 pertains to 'rights' of owner on termination. In fact, the ingredients of Section 20 of the Act, 1972 pertains to restriction of owner's right to recover possession of goods otherwise than through Court. Section 24 concerns with 'discharge' of price otherwise than by payment of money'. 18. Section 25 of the Hire Purchase Act, 1972, enjoins that if the Hirer is declared 'Insolvent' during the continuance of Hire-purchase agreement then, the official receiver or where the hirer is the Company then, in the event of company being wound up, the Liquidator, has the same rights and obligations as an Hirer had in regard to the 'Goods'. An official Receiver or the Liquidator with the permission of the court assign the rights of Hirer under the agreement to any other person and the assignee shall have all the rights....

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....the correct address, then, in Law it is a 'correct mode of service' and in this regard a mere bald assertion that the registered notice was not served would not be sufficient to discharge the onus cast on an 'Aggrieved person'. 22. As a matter of fact, the Adjudicating Authority had observed in the impugned order that address of the Debtor Company from the Master data is the same for which only the Respondent/Appellant had taken place for sending them hearing notice. Therefore, there was no necessity for a direction being issued for a 'Substituted service' to be effected upon the Appellant. Moreover, non-serving of notice on the e-mail address of the Appellant is not fatal to the present case, as opined by this Tribunal. 23. It cannot be forgotten that for the Demand Notice dated 17.08.2017 of the Respondent / Applicant ('Financial Creditor'), the 'Corporate Debtor' and the coborrower( s) to the Loan Agreement although received the same had not issued a Reply and also not repaid the outstanding sum of Rs. 29,29,149.74/-. Before that on 18.03.2015 through cheque No. 51367 payment of Rs. 3 lakhs was made by the 'Corporate Debtor' and subsequently, the 'Corporate Debtor' has not....