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TMI Blog2022 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... hmedabad, Court - 2) in I.A. No. 626 of 2020, dismissing an application filed by the Applicant/Operational Creditor under Section 5 of the Limitation Act, 1963 (in short 'Act') for seeking condonation of delay of 358 days in filing of the application and also to set aside the consequential order passed separately on 04.12.2020 dismissing the application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') bearing CP (IB) No. 228/NCLT/AHM/2018. 2. In brief, the Appellant is the Operational Creditor (in short 'OC'), who alleged to have supplied fire-fighting system to the Corporate Debtor (in short 'CD') from March 16, 2013 till March 31, 2014. It is alleged by the Appellant that default had occurred on 28.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to put the records straight, the Applicant filed a Miscellaneous Application bearing I.A No. 365 of 2022 for seeking amendment of Memo of Appeal in order to challenge the later order dated 04.12.2020 as well, because the Appellant had already filed the present Appeal to challenge the order dated 25.09.2020. 4. Before we proceed further, in the given facts and circumstances, it would be just and expedient if the impugned order dated 04.12.2020 is also made part of the Memo of Appeal and is considered and decided alongwith the order dated 25.09.2020 which was passed by the Adjudicating Authority while dismissing the application filed under Section 5 of the Act. Accordingly, the application bearing I.A. No. 363 of 2022 is hereby allowed and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the issue is no more res-integra as it has been held in the cases of Sesh Nath Singh (Supra), Babulal Vardharji Gurjar (Supra) and Dena Bank (Supra) that an application filed under Section 5 of the Act is maintainable. However, we may hasten to add that the period of limitation is defined under Section 2(j) of the Act which is as under: "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act." 10. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be but the delay, if any, can be condoned in terms of the Section 5 of the Act, which read as under:- "5. Extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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