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TMI Blog2020 (5) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... HAT:- As per the provision of article 137 of the Limitation Act, so far the recovery of money is concerned, the person is required to file the application within three years when the cause of action arises - Here the case in hand, the applicants has failed to show what is the date of cause of action or what is the date of actual default. Therefore in my opinion, since the last amount claimed by the applicant was defaulted on December 26, 2014, December 29, 2014 and August 25, 2014 therefore limitation runs from that day. Since this application has been filed on June 27, 2019, therefore, in my opinion it is much after the 3 years as provided under the law. So the present application is also barred by law of limitation. The applicants failed to produce any document to show that what was the agreed interest in between the parties on the basis of which money was borrowed. Therefore, the case of the applicant, does not comes under section 5(8)(a) of the I and B Code and further it is found that it also does not come either under (b) or (c) or (d) or (e) or (f) or (g) or (h) or (i) of section 5(8) of the I and B Code. Therefore, I am unable to accept the contention of the applicant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share capital of the respondent is ₹ 10,00,000 (rupee ten lakhs only) and issued, subscribed and paid-up share capital is ₹ 1,00,000 (rupee one lakh only). 5. Brief facts related to petition are as follows : (i) Learned counsel for the petitioner stated that the corporate debtor has taken unsecured debt from the applicants amounting to ₹ 1,60,00,000 (rupees one crore sixty lakhs only). (ii) Further stated that as per agreed terms, the loan amount should have been repaid but till date no amount has been issued to applicants. On sending of notice of repayment to respondent on February 18, 2019 which was received by the respondent on February 19, 2019. But till date neither such amount is received by the applicants nor any reply from the corporate debtor. Even after repetitive reminders and visits, the respondent-company has not shown any inclination in paying the claimed amount and/or monthly interest. Therefore, the corporate debtor has defaulted in payment of ₹ 2,43,47,467 (rupees two crore and forty-three lakhs forty-seven thou sand four hundred sixty-seven only). (iii) It is also submitted that after all failed attempts to realise the pay ment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 18, 2019. (Details is annexed as annexure A1 colly at pages 22 and 23 of the application). 7. Learned counsel appearing for the applicants submitted that the applicants have annexed copy of the balance-sheet of the corporate debtor for the years 2015, 2016, 2017 and 2018. He further submitted that in order to proof the default, the petitioner has annexed the legal demand notice along with the tracking record of the same. He also submitted that the balance-sheet of the corporate debtor shows that he has accepted that he has taken loan from the petitioners. 8. He further submitted that to trigger the section 7 of the Insolvency and Bankruptcy Code the petitioner is to establish the record of default recorded with the information utility and furnish the name of the resolution professional proposed to act as interim resolution professional and if it is established like section 9 petition, it is not required to prove any other facts. In the light of the submissions raised on behalf of the petitioner's counsel, I have gone through the averments made in the application filed on behalf of the petitioners, who claim to be the financial creditor but before that I would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate debtor. 11. I further find in Part IV of the application, on the basis of that deposit shown in annexure 1, the petitioner claim total amount of ₹ 1,60,00,000 (rupees one crore sixty lakhs only), which according to them they have granted as debt to Desiya Hotel and Resorts P. Ltd. I further find that in the petition, the date of default is the date of notice sent by the petitioners to Desiya Hotel and Resorts P. Ltd., and the petitioners claim total of ₹ 2,43,47,467. 12. I further find that in Part V at column No. 5, he mentions about the balance-sheet of the Desiya Hotel and Resorts P. Ltd., for the year ended March 31, 2018, March 31, 2017 and March 31, 2016, except that in other columns the petitioner mentioned not applicable . 13. I further find that column No. 3 of Part 5 relates to documents of default with the information utility, in column No. 6, a record of default as available with credit information company. In column No. 7 copies of entries in a banker book in accordance with the Bankers' Books Evidence Act, 1891. In column No. 8 the list of other documents attached to this application in order to prove the existence of financial debt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provide) in section 8(1) of the Code. Under section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbi tration proceedings, which is pre-existing, i. e., before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the court. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is 'due', i. e., payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vables sold or discounted other than any receivables sold on non-recourse basis ; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing ; Explanation.-For the purposes of this sub-clause,- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing ; and (ii) the expressions, 'allottee' and 'real estate project' shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016) ; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account ; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution ; (i) the amount of any liability in respect of any of the guarantee or ..... 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