TaxTMI 
TaxTMI 
2018 (5) TMI 1996
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.... '1' to the Application. 2 The present application is filed on the basis of default in payment of the debt due to the Financial Creditor till date. The total amount of default as clamed by the Financial Creditor is of Rs. 2,21,00.000/- (Two Crores Twenty-One Lacs Only) along with interest at the rate of 12% per annum totalling to Rs. 5,21,56,000/- (Five crores twenty-one lakhs fifty-six thousand only). The loan provided by the Financial Creditor was disbursed in two tranches dated 23 06 2005 and 03.01.2007 respectively. 3. The Financial Creditor contends that the Corporate Debtor failed to repay the loan within a period of one month as agreed to by the Corporate Debtor and the Financial Creditor. The loan amount is reflected in the Balance Sheet of the Corporate Debtor for the year ending 31.03.2012 which is annexed as Annexure 6' to the Application. The applicant further contends that the Corporate Debtor has acknowledged the debt due to the Financial Creditor and agreed to pay the amount along with interest to the Financial Creditor Vide letter dated 22.12.2012 but Corporate Debtor failed to pay the amount as promised to the Financial Creditor. Thereafter, a demand noti....
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....ranted to the respondent as a loan at simple interest at 12% p.a agreeing to repay the amount with interest within one month from the date of demand and demanded back the amount by sending a letter dated 15.12.2012 (Annexure 4) but failed to repay the debt for the reason of inability of the corporate debtor. According to the financial creditor, based on the long-standing business relationship, the applicant extended the loan in the year 2005, but even after repeated request the respondent failed to repay the debt and on 05.05 2015 issued demand notice but again the respondent failed and since the respondent as per advertisement in a newspaper showed disposal of its assets, the applicant filed this application for initiating CIRP as against the respondent. The total amount with interest as on the date of filing this application outstanding is Rs. 5,21,56,000/- (Rupees Five crores twenty-one lakhs fifty-six thousand only). 8 It is submitted by the Ld. Counsel on the side of the respondent that the debt claimed is not a financial debt and that the fund received by the respondent was not a loan as alleged but is a contribution towards the capital. To substantiate the said contention h....
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....de to Section 25 (3) of the Indian Contracts Act, 1872. Relevant portion of the provision is produced hereunder: "25. Agreement without consideration, void, unless it IS in writing and registered or is a promise to compensate for something done or IS a promise to pay a debt barred by limitation law. --An agreement made without consideration is void, unless-- ............ (3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in pan a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract. ......" 12 It is clear from the above statutory provision that a promise to pay the debt which is in writing, even made after the expiry of the period of limitation would cause revival of the clam, notwithstanding the limitation. On similar lines the following was held in the case of State Bank Of India v. Kanahiya Lai & Anr, [2016 SCC OnLine Del 2639]. "No doubt, there is a distinction between an acknowledgement under Section 18 of the Limitation Act and a promise under Sectio....
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.... signed. 18. Moreover, as in a winding up petition, a disputed question of fact cannot be adjudicated, this Court has to believe the defense set up by the respondent Consequently, this Court has to examine as to whether share application money of Rs. 50,00,000/-, as contended by the respondent company, constitutes a debt. 24 In the opinion of the Court, as the sum of Rs. 50, 00, 000/- has not been refunded by the respondent, such sum constitutes a debt in present. Consequently, the sum of Rs. 50, 00 000/- constitutes an unsecured debt in the hand of the respondent company which is due and payable to the petitioner. 15. In this case, the period of limitation i.e. three years gets over on 22.12.2015 from the initial date of acknowledgement i.e., 22.12.2012. The present application has been filed on 12.02.2018. However, upon perusal of the Balance Sheet of the Corporate Debtor for the year ending on 31.03.2017 and in view of the aforesaid judgement of the Hon'ble Delhi High Court, it is clear that there is an express acknowledgement of the loan amount due to the Financial Creditor which causes the revival of the claim from the said date notwithstanding the bar of limitation. ....
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....lvency Resolution Process and call for the submission of claims under Sec 15 The public announcement referred to in clause (b) of sub-section (I) of Insolvency & Bankruptcy Code, 2016 shall be made immediately (iii) Moratorium under Sec. 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following 1. The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority, 2. Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 3. Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); 4. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. (iv) The supply of essential goods or services to the Corporate Debtor as may be specified shall n....