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TMI Blog2024 (11) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') to initiate Corporate Insolvency Resolution Process (in short 'CIRP') against M/s Walia Traders Limited (Corporate Debtor) before the National Company Law Tribunal, Chandigarh Bench (in short 'Tribunal') bearing CP (IB) No. 84/Chd/Chd/2019. 2. The OBC disbursed two terms loan on the same date i.e.26.03.2012 of an amount of Rs. 17.18 Cr. and 4.30 Cr. total amounting to Rs. 21.48 Cr. 3. The application under Section 7 was filed on the printed proforma bearing Form No. 1 for the resolution of an amount of Rs. 31,42,82,870/- as on 31.12.2018. 4. The OBC classified the account of the CD as NPA on 30.09.2014 and the amount which has been claimed on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led an application I.A. No. 24 of 2021 under Section 5 of the Limitation Act, 1963 (in short 'Act') for condonation of delay of 493 days in filing of the CP under Section 7. 9. It was averred in the application that at the time of filing of petition, no application for condonation of delay was filed as it is alleged that the OBC at that time was under the bonafide impression and belief that the CP was filed well within the period of limitation. 10. The relevant averments made in I.A. No. 24 of 2021 at para 3 and 4 are reproduced as under:- "3. That the above noted insolvency petition was filed by the petitioner financial creditor on 04.02.2019 vide Diary No. 544. At the time of filing the present company petition, no application for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on 04.02.2019 with a delay of 493 days." 11. The Respondent while contesting this application had averred that the delay is not 493 but 585 days because the date of default is 30.06.2014 and the period of three years as provided under Article 137 of the Act came to an end on 29.06.2017 whereas the main petition is filed on 04.02.2019. 12. The Tribunal held that Section 5 of the Act shall apply to the application filed under Section 7 or 9 of the Code but while referring to a decision of the Hon'ble Supreme Court in the case of B.K Educational Services Pvt. Ltd. Vs. Parag Gupta And Associates, 2019 (11) SCC 633 held that "the right to sue, therefore, accrues when a default occurs and that if the default has occurred over three year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly argued to challenge the impugned order but he has also raised the same arguments before this court which were raised before the Tribunal that the delay has been caused because OA No. 227 of 2016 was pending before the DRT, Chandigarh and the Appellant was under bonafide belief that the pendency of the OA against the CD amounts to continuous cause of action but it has also been stated by the Appellant in the application itself that the Hon'ble Supreme Court while interpreting Section 22 has held that pendency of recovery proceedings against the CD will not amount to continuous cause of action. Similarly, in regard to second argument that the limitation of three years would start from the date when the Code came into force w.e.f. 01.12.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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