9911796707
TMI Blog2022 (1) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been filed within three years i.e. by 30.7.2018. The section 7 application in this case was filed on 14.9.2018. Hence, even if it is assumed that the transaction between the Corporate Debtor and Respondent No. 1 resulting in financial debt, the section 7 application was not filed within the period of limitation. The Respondent No. 1 has not been able to prove the existence of the purported loan - Respondent No. 1 has not been able to establish that he is a Financial Creditor, who is entitled to file application under 7 of IBC. Furthermore, the date of default, which is taken as 31.7.2015 means that section 7 application should have been filed within three years i.e. by 30.7.2018. The section 7 application in this case was filed on 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant has claimed that section 7 application was filed by Respondent No. 1 claiming to be Financial Creditor on alleged financial loan totaling ₹ 52.50 lakhs. This misconceived application, the Appellant has claimed, was filed by the Financial Creditor to recover the said amount and no loan of this amount was taken by the Corporate Debtor. The Appellant Kamlesh Dineshbhai Patel, an ex-Director of the Corporate Debtor has claimed that the Impugned Order passed by the Adjudicating Authority is under the misconceived impression that the money owed by the Corporate Debtor to the purported Financial Creditor is due to a loan disbursed in two transactions in the year 2015 viz. ₹ 50 lakhs on 14.7.2015 and ₹ 2.50 lakhs on 20.6. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a vague clarificatory reply provided by Respondent No. 1, without even ascertaining whether the said amount was financial debt in default as per the definition of financial debt under IBC. 7. Oral arguments of the Learned Counsels for the Appellant and Respondent No. 1 were heard by us and the pleadings filed in the appeal were duly perused. 8. The Learned Counsel for the Appellant has argued that Respondent No.1 does not fall in the category of Financial Creditor on the allegation that the Corporate Debtor took a loan from Respondent No. 1 of an amount of ₹ 52.50 lakhs. She has argued that there is no written or oral agreement regarding the loan between the Corporate Debtor and Respondent No. 1 without any acknowledgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The Learned Counsel for Appellant has pointed out that in his reply affidavit filed on 16.11.2021 Respondent No. 1 has filed letter dated 20.7.2015 (attached at page 32 of reply affidavit filed by Respondent No. 1 vide Dy. No. 31470 dated 23.11.2021) as proof of loan wherein the date of the letter is mentioned as 20.7.2015, whereas the date given below the signature of signee is 10.10.2015. Such a discrepancy shows that the letter is fabricated and produced just to show the existence of a debt and the liability to pay interest @ 18% p.a. 10. The Learned Counsel for Respondent No. 1 has argued that a loan was taken by the Corporate Debtor from the Respondent No. 1 for which a letter dated 20.7.2015 was given by the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder. 3 (11) debt means a liability or obligation in respect of a claim which is due from many person and includes a financial debt and operational debt. 3 (12) default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. It is clear from the definition of debt that it is a liability in respect of a claim due from any person (in this case the Corporate Debtor) and includes financial debt. Default is defined as non-payment of debt when whole or part or instalment of the debt that has become due and payable by the Corporate Debtor. Therefore, the existence of debt has to be clearly state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.50 lakhs was transferred through RTGS to the Corporate Debtor on 20.6.2015 and ₹ 50 lakhs was transferred to the Corporate Debtor s account on 14.7.2015. The letter which purports to record the fact of loan is dated 20.7.2015 even though the date below the signature of Director of Corporate Debtor Kingston Paptech Pvt. Ltd. is 10.10.2015. We find that the dates of transfer of money through RTGS in the Corporate Debtor s account and the two different dates recorded in the letter dated 20.7.2015, which purports to record the evidence of loan, appear to be incongruous. Moreover, the date on which loan amount becomes due and payable is taken as 31.7.2015, as mentioned in the letter dated 20.7.2015. There is no other acknowledgment from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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