TaxTMI 
TaxTMI 
2024 (12) TMI 1702
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....rporate Debtor would pay interest on a half yearly basis @ 12% per annum within a period of one year from the date of disbursal. The Appellant contends that it disbursed in tranches as per the details given below: Sl. No. Date Amount (Rs.) 1. 10th April, 2019 30,00,000.00 2. 11th April, 2019 30,00,000.00 3. 12th April, 2019 29,50,000.00 4. 18th April, 2019 35,00,000.00 5. 24th April, 2019 33,00,000.00 Total (Rs.) 1,57,50,000.00 3. The Respondent started committing default from the first instalment of half yearly interest, which became due and payable on 10.10.2019. And, thereafter, the Respondent failed to pay further interest and the principal outstanding amount. 4. The Appellant issued a demand notice dated 20.07.2020 recalling the overdue payment. The principal amount had become due on April, 2020, and recurring instalments of half yearly interest were in default since 10.10.2019. Thereafter, the Financial Creditor issued a demand notice on 25.05.2023 recalling the entire principal amount with interest as on May, 2023. The total of that was Rs. 2,57,53,424/- (rupees two crores, fifty-seven lakhs, fifty-t....
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....8 of the appeal paper book. It clearly notes a loan entry of Rs. 1,57,50,000/- (rupees one crore, fifty-seven lakhs and fifty thousand only) against the Respondent. 10. It is on record that the Appellant had issued notice to the Respondent on 20.07.2020, in which he has brought out the failure to repay the loan of Rs. 1,57,50,000/- (rupees one crore, fifty-seven lakhs and fifty thousand only), which is given from page 67 to 69 of the appeal paper book. 11. From the available record, it is an admitted position that there was no loan agreement between the parties at the time of advancing of the loan. It is also not disputed that this amount was disbursed and is established from the bank account statement. It is claimed by the Appellant that the loan carried an interest and first instalment of interest became due on 10.10.2019, which is the first date of default. 12. However, the Adjudicating Authority dismissed the Section 7 Petition on the ground that date of default was 04.08.2020 and the said date fell within the period of Section 10A and, therefore, no petition under Section of the Code can ever be filed as the default has taken place within 10A period i.e. 25.03.2023 to....
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....the date of default provided by the Appellant, cannot be justified on the grounds stated in the judgment. As claimed by the Petitioner, the loan was repayable within one year and payment of interest @ 12% per annum was to be made on half yearly basis and, as per the claim of the Petitioner, the first instalments was due on 10.10.2019, which is set to be the first date of default. The argument that date of default will be after the issue of the demand / recall notice dated 20.07.2020 is not tenable. It was also held by the Adjudicating Authority that so called period of six months, if at all, can be counted from 24.04.2019 when the disbursement of loan was completed and not from 10.04.2019 when only a part sum of Rs. 30,00,000/- (rupees thirty lakhs only) was disbursed. The relevant portion of the orders of the Adjudicating Authority are at paras 10 and 11 which are noted as below: "...... 10. Admittedly, no loan agreement was executed between the parties at the time of the advancing of alleged loan. It is not disputed that the loan of Rs. 1,57,50,000/- was disbursed by way of five tranches beginning from 10.04.2019 and the last trench of Rs.33,00,000/- was disburs....
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....date of default is to be counted from 24.04.2019, the position does not change much materially. The Respondent has committed a default outside 10A period, even though the Appellant had issued a demand notice on 20.07.2020. After issuing the initial demand notice on 20.07.2020, the Appellant had not issued any further demand notice. Later on, the Appellant issued a demand notice dated 25.05.2023 recalling the entire principal amount with interest as on May, 2023. And the Section 7 Petition was filed in August, 2023. The date of default, as claimed by the Appellant, as noted in Part IV of this Petition, is 10.10.2019 i.e. the date on which the first instalment of half yearly interest became due and payable by the Corporate Debtor to the Appellant. It is also contended that the default is continuing even till date, as there is no repayment by the Corporate Debtor either for the interest or principal amount. 17. The Adjudicating Authority has relied upon the demand recall notice dated 20.07.2020 and come to a conclusion that the date of default can be calculated by adding 14 days to the demand notice of 20.07.2020, which makes it fall within the 10A period. On the other hand, as per....