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TMI Blog2020 (9) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor on grounds of its inability to liquidate its financial debt. 2. The facts mentioned in the application in brief are as follows: i. As per averments made in the petition, in 2014, the Corporate Debtor approached the applicant seeking a loan of Rs. 1,30,00,000/- ("principal amount") on the promise that the principal amount would carry an interest of 12% per annum and the Corporate Debtor would pay back the principal amount along with the applicable interest, on demand by the applicant. Accordingly, the Financial Creditor made the following disbursal to the Corporate Debtor (as recorded in the Bank Statement of the Financial Creditor): Date Amount Mode of Payment 08.05.2014 Rs. 1,27,00,000/- RTGS vide Cheque No. 000520 18.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the financial debt of Rs. 39,00,000 /- is due and payable and within the period of limitation. vi. Accordingly, they seek initiation of the corporate insolvency process against the Corporate Debtor in respect of the financial debt of Rs. 39,00,000/-. 3. We have heard the Ld. Counsel for the petitioner and perused the averments made in the application. 4. Ld. Counsel for the petitioner has submitted that he has paid Rs. 1,27,00,000/- on 08.05.2014 through RTGS vide cheque number 000520 and Rs. 3,00,000/- RTGS vide cheque number 000587 and the Principal amount was disbursed by the petitioner to the Corporate Debtor solely against the promises of the Corporate Debtor of due repayment and the consideration offered by the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the limitation period or not? 10. As we have already referred the facts and submissions of the petitioner and on the basis of that it can be said that the amount which the petitioner claimed or mentioned in the application was paid by the petitioner lastly in the month of June 2014 and according to the petitioner, the last payment was received by the petitioner on 15.03.2016 and we further noticed that the present application is filed on 20.03.2020 and the contention of the petitioner is that since the respondent in its balance sheet for the Financial Year 2016-17, which ended on 31.03.2017 acknowledged that amount therefore, from that period the debt is not barred by limitation and in support of its contention, the petitioner has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.06.2018, whereas the present application was filed on 20.03.2020 that is beyond the 3 years, when the right to apply accrues under Article 137 of the Limitation Act. 12. Apart from that, we would also like to examine that whether the petitioner comes under the definition of Financial Creditor or the amount which the petitioner has paid comes under the definition of Financial Debt, admittedly, there is no document to show that any interest has ever been paid to the petitioner by the Corporate Debtor in lieu of the amount, which the Corporate Debtor/respondent has received from the petitioner and petitioner failed to produce any document to show that agreed rate of interest was 18% per annum and even statement of the account filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee, 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 indemnity for any of the items referred to in subclauses (a) to (h) of this clause. 14. Mere plain reading of the provision shows that in order to establish, the amount given by a person to another person comes under the definition of financial debt, that person is to establish that the amount is given against the payment of interest, and for the reasons mentioned in Section 5(8) clause (a) to (i). 15. At this juncture, we would like to refer Section 3(11) of the IBC and the same is quoted below: - Section 3(11) "debt" means a liability or o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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