Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2021 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (7) TMI 680 - AT - Insolvency and BankruptcyCondonation of delay of 241 days in filing the Company Petition - applicability of Section 5 of the Limitation Act, 1963 where there are cases of filing Company Petition beyond the limitation period - case of Appellant is that the Adjudicating Authority in the impugned Order had failed to appreciate that in as much as Section 238 A of the Insolvency and Bankruptcy Code, 2016 provides that the Limitation Act, 1963 shall apply as far as may be to the proceedings under the Code before the Adjudicating Authority or the Appellate Tribunal - HELD THAT:- It is to be pointed out that Section 433 of the Companies Act and Section 238 of the I&B Code apply to the Provisions of the Limitation Act, as far as may be. As such, the Limitation period mentioned in the Code will not apply notwithstanding anything to the contrary mentioned in the Limitation Act - Indeed, the Limitation Act, 1963 is applicable to all applications filed under Section 7 and 9 of the I & B Code from the inception of the Code. Therefore, Article 137 of the Limitation Act, 1963 gets attracted. It is significantly pointed out that the condonation of delay cannot be claimed as a matter of right. Of course, the condonation of delay is a matter of discretion of the Court/Tribunal. It cannot be forgotten that limitation is a prescription of repose and unless the statute allows the Court, an element of discretion, by way of an application for condonation of delay, the Court/Tribunal has no power to find out a method in granting relief to a person who may appear to have suffered. When there is want of due care and attention or want of due diligence, the Tribunal may decline to entertain an application, as there is no sufficient cause for the delay. Notwithstanding the fact that the Limitation Act, 1963 is applicable to the Applications projected under Section 7 and 9 of the Code from the I & B Code and hence, the ingredients of Article 137 of the Limitation Act, gets attracted. As such, the Right to sue accrues when a Default occurs and if the Default had occurred beyond three years, the Limitation period for filing of an application under Sections 7 and 9 starts sticking from the date of Default committed by the Corporate Debtor. Section 5 of the Limitation Act, 1963 may be pressed into service to condone the delay in filing necessary interlocutory application, in the considered opinion of this Tribunal. However, it is for the Applicant/Appellant to explain the delay that has occasioned to the subjective satisfaction of the Tribunal - In the instant case, this Tribunal is not subjectively satisfied as to the occurrence of the long and inordinate delay of 241 days and therefore, this Tribunal is not inclined to extend its ‘helping hand of judicial arm of generosity’, based on the facts and circumstances of the case which float on the surface. The Appeal is devoid of merits - Appeal dismissed.
|