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2022 (7) TMI 365 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - Seeking condonation of delay of 358 days in filing of the application - Section 5 of the Limitation Act, 1963 - whether the delay caused in filing of an application under Section 9 of the Code can be condoned by filing an application under Section 5 of the Act? - HELD THAT:- Although the issue is no more res-integra as it has been held in the cases of SESH NATH SINGH & ANR. VERSUS BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR. [2021 (3) TMI 1183 - SUPREME COURT] that an application filed under Section 5 of the Act is maintainable. Section 3 of the Act deals with the Bar of limitation which says that: “every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.” - Since, there is no dispute that the period of limitation shall be three years from the date when the right to file accrues i.e. date when the default occurs, the Adjudicating Authority shall be well within its right not to entertain the application filed under Section 7 or 9 of the Code as the case may be but the delay, if any, can be condoned in terms of the Section 5 of the Act. Since Section 5 is an enabling provision for the purpose of extending the period of limitation for the suiter to pursue his claim made in the Code, it applies only in the case of application or appeal but it does not apply to a suit - the provisions of Section 5 of the Act shall apply to the application filed under Section 9 of the Code and hence, the order passed by the Adjudicating Authority is patently illegal and erroneous. It is not the case that the application has been dismissed by the Adjudicating Authority on the ground that the Appellant could not have shown sufficient cause for the purpose of seeking condonation of delay rather the case before us is that the Adjudicating Authority has dismissed the application only on the ground of maintainability - Appeal allowed.
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