TaxTMI 
TaxTMI 
2024 (8) TMI 1279
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....ppeal are: (i) The Corporate Debtor - 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 initia....
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....ty by the impugned order admitted Section 7 Application. Challenging the order, this 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 L....
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.... the Corporate Debtor and does reflect the loan, which was extended by the Financial Creditor 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....
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....sp; Rahul K. Shah 120,000 11,990,000 25,180,000 From Others Nityanand Dubey 135,000 135,000 Krishna Karelia 6,498,871 Manjula Karelia 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. Lt....
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....n mentioned as Rs.10,01,16,474/- in the subsequent balance sheet, i.e. 2016-17 and 2017-18. The amount reflected in the balance sheet under the long term borrowings is the same amount i.e., Rs.10,01,16,474/-. In the Appeal, submission was advanced by the learned Counsel for the Appellant that the said amount of Rs.10,01,16,474/- is the amount, which was given by Romell Real 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. Lea....
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....ence. The stand of the Appellant that amount of Rs.10,01,16,474/- is reflected in balance sheets of the year 2015-16, 2016-17 and 2017-18 is the loan given by Romell Real Estates Pvt. Ltd. is false plea, which is apparent from the balance sheets of the Corporate Debtor on record. We have noticed the balance sheet for the yar as on 31.03.2014, which balance sheet indicates that long term borrowing as on 31.03.2014 was Rs.9,78,31,545/-, which figure 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 ....
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....n by loan to the Corporate Debtor by Romell Real Estates Pvt. Ltd., which is false and misleading plea. 17. What we have stated above, i.e., the Appellant has filed false affidavit, the appeal could be dismissed on this ground alone. However, since learned Counsel for the Appellant has made various other submissions in support of the Appeal, we proceed to examine the submissions made by the Appellant. 18. Learned Counsel for the Appellant submits that there is no acknowledgement in the balance sheet of 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....
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....date of default been stated in the application nor has any suggestion about any acknowledgment been made. As noticed, even in Part V of the application, Respondent 2 was required to state the particulars of financial debt with documents and evidence on record. In the variety of descriptions which could have been given by the applicant in the said Part V of the application and even in residuary Point 8 therein, nothing was at all stated at any place about the so-called acknowledgment or any other date of default. 35.1. 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 ....
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...., it does not lie in the mouth of the Corporate Debtor to contend that as per Loan Agreement, the Application under Section 7 was premature. We further notice Clauses 4 and 5 of the Loan Agreement, on which the Appellant has placed reliance, which are as follows : "4. The outstanding principal amount of the Lender Family as a whole will be repayable along with interest compounded as stated in clause 3 on the expiry of ten years from the date of first disbursement of the loan by any member of the Lender Family (i.e. 10 years from 23rd 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....