TMI Blog2021 (7) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 5. The other contention advanced on behalf of the Appellant / Applicant is that the Adjudicating Authority had not applied his judicial mind, as a whole. 6. It is the version of the Appellant that even otherwise, if the Appellant / Applicant had been before the Authorities and Courts, and in the meantime, there was a change of law and judicial authority and application by the Corporate Debtor itself, the Appellant / Applicant is entitled to the exclusion of time under Section 14 of the Limitation Act, 1963 and as such, the Impugned Order , is liable to be set aside, in the interest of justice. 7. The Learned Counsel for the Appellant contends that the Impugned Order is a non-speaking one and further it does not spell out the grounds as to why the instant delay took place and why those grounds had not satisfied the Adjudicating Authority on the existence of Sufficient Cause , justifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. But, when counted from 01.12.2016 itself, the delay appears, and as a matter of abundant caution, application for condoning the perceived delay was filed. 12. The Learned Counsel for the Appellant proceeds to point out that the Respondent / Corporate Debtor in August, 2017 filed an application under Section 10 of the Code and withdrew the same during October, 2017. In short, when the proceedings before BIFR abated, there was no provision for continuing the winding up proceedings availing the liberty, since there was a complete change in law that had taken place. Apart from that, if the CIRP had commenced the Appellant would have been a Claimant . 13. The Learned Counsel for the Appellant submits that the Appellant in the instant case had shown sufficient cause for the condonation of delay and hence, the impugned order is to be set aside by this Tribunal , by taking into account the aforesaid dates and the pending litigations and to remit the matter to the Adjudicating Authority for considering the Section 9 application filed by the Appellant in respect of the claim of ₹ 10,56,78,747/-. Appellant s Decisions: 14. The Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s plea and to shut the door against him. If, the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor . 16. The Learned Counsel for the Appellant adverts to the decision of the Hon ble Supreme Court in Ram Nath Sao @ Ram Nath Sahu and another v. Gobardhan Sao (2002) 3 SCC at Page 195 at Special Page 16 wherein at Paragraph 12 it is observed and held as under: The expression sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 or Order 22 Rule 9 CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute sufficient cause or not will be dependent upon facts of that case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. However, courts should not proceed with the tendency of finding fault with the case shown and reject the petition by a slipshod order in over jubilation of disposal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing averments: 1. The respondent/corporate debtor is due of ₹ 4,73,08,766/- (Rupees four crores and seventy three lakhs and eight thousand and seven hundred and sixty six only) as on 21.3.2011. 2. That since the respondent/corporate debtor did not pay the said amount, the Applicant/operational creditor filed a Company Petition bearing no.200 of 2013 before the Hon ble High Court of Andhra Pradesh u/s 43(a) (f) and 439 of the Companies Act, 1956, r/w Rule 9t of the Companies (Court) Rules, 1959 and prayed that M/s. Empee Sugars and Chemicals Limited, the Respondent herein be wound up in accordance with the provisions of the Companies Act, 1956. The said Company Petition bearing No. 200 of 2013 was disposed on 20.07.2015 and the Hon ble High Court made the order that a reference bearing case No.69/2014 under the Sick Industrial Companies (Special Provision) Act, 1985 qua the respondent company that the said reference is still pending and that on this ground this Court has closed Company Petition No.180 of 2013 filed by another creditor against the respondent with liberty to seek revival of the same depending upon the orders passed by the BIFR. In the light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. Also that, it is to be borne in mind that an application under Section 7, 9 or 10 are the only applications which are filed for initiation of CIRP under chapter 2 of Part II cannot be filed, if prohibited, as per Section 11 of the Code. In fact, Section 11 of the I B Code has a restricted application and it only prohibits the Corporate Debtor from initiating a Petition under Section 10 of the Code in respect of whom a Liquidation Order was made. Moreover, the Company / Corporate Debtor has the right under substituted subsection (b) of Section (4) of SIC Repeal Act to file reference for its own Insolvency. 25. 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 , ..... 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