AI Drafter 
TaxTMI 
TaxTMI 
2021 (7) TMI 680
X X X X Extracts X X X X
X X X X Extracts X X X X
....one delay of 241 days in filing the Company Petition vide CP (IB) NO.88/9/AMR/2020 under Section 9 of IBC, 2016 by the Petitioner/Operational Creditor against the Respondent/Corporate Debtor, which is filed beyond the limitation period. The Applicant invoked Section 5 of the Limitation Act, 1963. It is a settled law that Section 5 of the Limitation Act, 1963, is not applicable where there are cases are filing Company Petition beyond the limitation period and hence the application for condonation of delay is dismissed." 3. According to the 'Appellant'/'Applicant', the 'Impugned Order' dated 04.03.2021 in IA/186/2020 in CP(IB)/88/9/AMR/2020 is contrary to the well established principle and proposition of Law. 4. It is represented on behalf of the 'Appellant' 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'. 5. The other contention advanced on behalf of the 'Appellant'/ 'Applicant' is that the 'Adjudicat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by Notification No.3569(E) dated 25.11.2016, 01.12.2016 was announced as the date of coming into force of Clause (B) of Section 4o f SICA (REPEAL) Act and by this Clause, a Proviso states that a company whose reference had abated could apply under the I & B Code, within 180 days without any fee from the date of commencement of the Code. Therefore, a plea is taken on behalf of the 'Appellant' that from the date of Order of Hon'ble High Court, namely 20.07.2021 to 30.05.2017 being the end of 180 days from 01.12.2016, there was no expiry of the period of Limitation. Furthermore, in as much as the Section 9 application of the I & B Code was filed on 08.10.2020, leaving the COVID-19 period, it would be deemed to have been filed on 15.03.2020 and therefore, between 30.05.2017, to the date of filing, there was no delay at all. 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... grant relief to an applicant under Section 5 of the Limitation Act by purposively construing 'sufficient cause'. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition, it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay." 15. The Learned Counsel for the 'Appellant' refers to the decision of the Hon'ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy reported in AIR 1998 Supreme Court at Page 3222 at Special Page 3224 wherein it is observed as under: "It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2015 (15) Supreme Court cases at Page 659 at Special Page 662 wherein at Paragraph 7 it is observed as under: "It is well settled that the expression "sufficient cause" is to receive liberal construction so as to advance substantial justice. When there is no negligence inaction or want of bona fide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence." Analysis: 19. As seen from the contents of IA/186/2020 (filed by the 'Appellant'/ 'Applicant') it is evident that the 'Appellant'/'Applicant' at Para 1 to 4 of the said Application had made the following averments: 1. "The respondent/corporate debtor is due of Rs. 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 n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ays up to 08.10.2020. 21. According to the 'Appellant' the Respondent, as on 21.03.2011 together interest at 18% per annum is to pay the outstanding amount of Rs. 4,73,08,766/-, which comes to Rs. 5,83,62,981/- till 31.07.2020. As such, the total outstanding was Rs. 10,56,78,747/- as averred by the 'Appellant'/'Applicant' in para 11 of the IA/186/2020 in CP(IB) No.88/9/AMR/2020. Hence, the delay of 241 days is to be condoned, in the interest of the 'Appellant'/'Applicant'. Discussions: 22. 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. 23. 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. 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 P....