9911796707
TMI Blog2020 (1) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor a)so sent the applicant the Xerox copy of the cheque of ₹ 3,61,512 and from column 2 of Part IV this adjudicating authority find that the total amount of default is of ₹ 26,84,277 - Therefore, the applicant is not claiming the possession or title over the immovable property rather she is claiming the amount, which she has paid along with the interest and compensation. Hence, the case of the applicant comes under Article 137 of the Limitation Act ,1963 and not under Article 65 of the aforesaid mentioned Act as claimed by the applicant in his application. Although the application filed by the applicant is within 3 years from 01.12.2016, but the claim of the applicant is barred under Article 137 of the Limitation Act, because date of default is on 10th July, 2013 or 25th July, 2013, when the default occurred and right to apply accrued. Therefore, this Adjudicating Authority is of the considered view that since the right to apply accrues on 10th July, 2013 or 25th July 2013, from that date, applicant was required to claim the debt within three years i.e. on or before 9th July, 2016 or 24th July, 2016, but the present application is filed on 21st July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One Lakh Thirty One Thousand Two Hundred and Seventy only) as specified by Cosmos Infraestate Private Limited. iii. Further submitted that an allotment letter dated 18.09.2012 has been issued by the Corporate Debtor to the petitioner. Later, the petitioner made payment to the Corporate in accordance with terms and conditions as .mutually agreed under application form but the Corporate Debtor has deliberately and intentionally breached the agreed terms and conditions and also proposed to levy an extra burden upon Applicant and delayed the completion of the project. iv. The learned counsel for applicant also submitted that the Corporate Debtor has negligently and deficiently delayed the ( construction without having any justification or reasons beyond its control and also neglected/failed to deliver the physical possession of the flat within the stipulated time as agreed under the spirit terms and conditions of the Agreement, and also neglected to develop the flat which was booked in conformity with the agreed terms, relaying upon which flat was booked by the Applicant. v. It is further submitted that the payment of ₹ 3,61,512/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- (Rupees Three Lakh Sixty One Thousand and Five Hundred Twelve only), the total amount claimed to be in default is ₹ 23,22,766 (Rupees Twenty Three Lakh Twenty Two Thousand Seven Hundred And Sixty Six) /- and the date of default is 10th July,20l3. (Annexed as Annexure A-10 of the Application.) 6. It is also stated that written communication from the Insolvency Professional namely, Mr Vinod Chaurasia, in FORM-2 has been received and placed at Pages 28-35 of the Application. 7. The learned Counsel of the applicant through additional affidavit, submitted that this application is not barred by limitation and in support of this contention, the learned Counsel placed reliance on certain decisions i.e. i. A. K. Corpn v. Anupam Extractions Ltd. [CP(IB) No. 2781/NCLT/MB/2018.].(Annexed as Annexure B of the additional affidavit). ii. Pushpa Shah v. IL FS Financial Services [2019] 103 taxmann.com 242 (NCL-AT). iii. Gaurav Hargovinda Dave v. Asset Reconstruction Co. (1) [Co. Appeal (AT) (Insolvency) No. 655 of 2018.(Annexed as Annexure D of the additional affidavit), iv. SME Asset Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. Twelve years When the possession of the defendant becomes adverse to the plaintiff. 11. Mere plain reading of the provisions shows that it is related to the possession of immovable property or any interest therein based on title , whereas the case in hand, is the case, where the applicant has paid money for the purchase of flat and on her request the agreement to purchase the flat was cancelled and that was communicated to the applicant on 10th July, 2013, by the Corporate Debtor. And subsequently on 25th July, 2013, the corporate debtor a)so sent the applicant the Xerox copy of the cheque of ₹ 3,61,512 and from column 2 of Part IV this adjudicating authority find that the total amount of default is of ₹ 26,84,277. 12. Therefore, in my opinion, the applicant is not claiming the possession or title over the immovable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently acknowledged. Since there is no acknowledgement of debt, so, in my opinion, in view of Article 137 of The Limitation Act, 1963, the limitation shall run when right to apply accrues. Therefore, the facts of the case in hand is different from the facts of the cases upon which the applicant placed reliance. 16. Similarly, the facts of other cases on which the petitioners placed reliance are also different from the facts of the case in hand, therefore, in my opinion, although the application filed by the applicant is within 3 years from 01.12.2016, but the claim of the applicant is barred under Article 137 of the Limitation Act, because date of default is on 10th July, 2013 or 25th July, 2013, when the default occurred and right to apply accrued. Therefore, this Adjudicating Authority is of the considered view that since the right to apply accrues on 10th July, 2013 or 25th July 2013, from that date, applicant was required to claim the debt within three years i.e. on or before 9th July, 2016 or 24th July, 2016, but the present application is filed on 21st July, 2019, hence the claim of the applicant is barred by limitation. 17. Hence, this Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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