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TMI Blog2020 (7) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor failed to make the payment because of financial crunch. Due to such financial crunch the Corporate Debtor was referred to BIFR in Case No. 83 of 2005. The Scheme of Rehabilitation, however, did not work out ultimately. Subsequently, on repeal of SICA, 1985 this application was filed on 24.11.2017. 3. Learned counsel for the Operational Creditor submitted that notice u/ s 8 of IBC, 2016 had duly been served though Corporate Debtor did not reply thereto. The service of the same was not disputed. It was further submitted that even no reply 4. was submitted in response to the application filed u/ S. 9 of IBC, 2016. It was also pointed out that there existed no dispute at any point of tirne. Learned Counsel, on the point of limitation, submitted that due to BIFR and AAIFR proceedings under Sick Industrial Companies (Special Provisions) Act, 1985 commenced in 2005 and remained in process till the repeal of such Act on 01.12.2016, hence, as per provisions of Section 22(5) of SICA, 1985, limitation period got extended as period consumed in the course of such proceedings had to be excluded in computing the limitation period. In this regard, learned counsel drew our attent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sub-section (5) is applicable for entire Section 22 because of the expression "this Section" used in this sub-section. Further, this sub-section provides for automatic exclusion of the period of suspension of proceedings or remedy for the purpose of computation of limitation for the enforcement of any right, privilege, obligation or liability u/s 22(1) or by virtue of declaration in sub-section 3 of Section 22. However, for our purposes Section 22(1) of SICA, 1985 is relevant which is reproduced as under: 22(1) Where in respect of an industrial company, an inquiry under Section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other taw or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for Of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of money, hence, provisions of Section 22(5) r.w. Section 22(1) of SICA, 1985 are not applicable at all. To further elaborate on this aspect, now, we look into Section 3 of SICA, 1985 to find out whether term 'suit' used in Section 22(1) has been defined therein or not. From the perusal of the Section 3 it noted that this term has not been defined. Section 3(2) of SICA, 1985 provides that word and expression used in SICA, 1985 and not defined therein would have the same meaning, if any, assigned to such words in Companies Act, 1956 or if not defined therein also then meaning of such words given in the Industries (Development Regulation) Act, 1951 shall apply. We have perused the definition sections of both these Acts and it is found that even in these Acts, the word 'suit' has not been defined. We further looked into the provisions of General Clauses Act, 1897 which resulted into the same conclusion. Thereafter, considering the fact that the issue involved in the present case relate to extension of limitation, we looked into the provisions of Limitation Act, 1963. As per Section 2 (l) of this Act, the word 'suit' does not include an Appeal or Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so applies in this case. 11. There could be a situation where the creditor participates in the rehabilitation scheme/enquiry and remains part of such proceedings till end. In case, some claim is settled and if he accepts such settlement/ scheme, he will get money according to the contours of such scheme. After the implementation of scheme, he will not get any benefit of such exclusion again to institute a suit because such right gets forfeited after implementation of scheme. 12. There could be a third situation where a creditor initially remains part of the scheme, later on backs out in between. In that situation, he can institute suit for recovery of money with the consent of Board/AAIFR and period of automatic suspension as specified in Section 22(1) r.w. 22(5) would be available for filing of such suit in addition to time prescribed for filing of such suit as per the provisions of Limitation Act, 1963. Here, we again reiterate that such extension would be available only for filing a suit for recovery of money and not an Application u/s 9 of IBC, 2016. Having stated so, now we proceed to exarnine the maintainability of this application assuming that extended period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce has been made admittedly on the basis of Audited Financial Statement on 31.03.2005 which could have been audited and approved as per the provisions of Companies Act, 1956 latest by 30.09.2005, hence, a reference could be made only thereafter. Thus, period from 11.01.2005 to 30.09.2005 has to be excluded from the period of extended time limit. In the present case, it is further observed that a suit for recovery had been filed by the Operational Creditor before Civil Judge Vadodara on 22.03.2009 which was numbered as 315/2009. However, consent of BIFR for filing suit for recovery was obtained through MA 603 of 2010 by an order of BIFR dated 20.11.2012. Thus, if we exclude period from filing of reference i.e. 01.10.2005 till 20.11.2012, the time lirnit for filing a fresh suit/ application comes to an end in early 2015 itself after excluding period from 11.01.2005 till 30.09.2005. We further note consent of AAIFR has been taken in Appeal No 76 of 2014 vide order dated 17.09.2014. Even when, this date is considered, the time limit for filing of a fresh suit/ application comes to an end on 06.01.2017 if we take the period from filing of reference i.e. 01.10.2005 till such consent ord ..... 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