2020 (9) TMI 888 - Tri - Insolvency and Bankruptcy

Condonation of delayed 400 days in filing petition - recovery of outstanding dues - Section 5 of the Limitation Act - HELD THAT - The applicant has filed an application under Section 9 of the IB Court, which is registered as CP(303) 2020 and in part 4 of the application at page 12 the application mentioned the default period is from April 2012 and May 2012 and at page 16, the applicant mentioned the date from which the debt became due that is 12th July 2012 to 6th January 2020 - it is found that last invoice is dated 3rd July 2012 and the last payment was made in the month of July 2012 as mentioned at page 12 of the application. We further find, thereafter in the year 2015, a company petition being Company Petition No. 6 of 2015 was filed before the Hon'ble Allahabad Bench which was disposed of 19.11.2018 and the present application is filed on 16.01.2020. The right to apply accrues in the month of July 2012, when the last payment was made by the corporate-debtor to the applicant. As per the contention of the learned counsel appearing for the applicant the company petition was filed, on 10th July 2015, whereas the right to apply accrue on 12th July 2012 which means the company petition was filed, according to the submissions of the learned counsel appearing for the applicant, one day prior to the limitation period of three years comes to an end, and if we shall exclude the period spent during that proceeding under Section 14(2) of the Limitation Act, then, the applicant was required to file the present applications on 20th November 2018 that is on the next date of disposal of the company petition by the Hon'ble Allahabad High Court. But the same is filed on 16.01.2020, therefore, we are of the considered view that even we shall exclude the period spent by the petitioner in the legal proceeding before the Hon'ble Allahabad High Court from 10th July 2015 to 19th November 2018, the present petition is barred by limitation. Mere plain reading of the provisions shows that Section 5 of the Limitation Act is not applicable in condoning the period, where, there is a specific provision under the Limitation Act, which prescribe the period for filing any applications, which relates to recovery of money within such period the same can be condoned only either Under Section 14 or 18 of the Limitation Act, as we have already held that even if we shall exclude the period spent in the litigations before the Hon'ble Delhi High Court, the present application is barred by limitations, therefore, we are unable to accept the contention of the applicant that the delay is liable to be condoned under Section 5 of the Limitation. There are no option but to reject the condonation application of the applicant to condoning the delay either under Section 5 of the Limitation under Section 14 of the Act, accordingly, we hereby reject the prayer of the applicant but condone the delay under Section 5 of the Limitation Act, and so far exclusion of the period spent during the proceedings before the Hon'ble Allahabad High Court is concerned, we have already held that even if we shall exclude that period, the present application is barred by limitation, accordingly, the application filed by the application under Section 9 of the Act, is not maintainable since it is barred by limitation, hence the same is hereby dismissed.

Summary

Issues:
Delay in filing petitions under Section 9, condonation of delay, limitation period, exclusion of time under Section 14 of the Limitation Act, application under Section 5 of the Limitation Act, accrual of right to apply, specific dates of filing petitions, exclusion of period spent in legal proceedings, condonation under Section 5 of the Limitation Act.

Analysis:
The judgment pertains to an application filed under Section 9 for condonation of a 400-day delay in filing petitions. The applicant sought to recover an outstanding amount along with interest. The respondent argued that the application was time-barred and relied on a Supreme Court decision. The Tribunal examined the application and related documents. The last invoice was dated July 3, 2012, with the last payment in the same month. A previous company petition was filed in 2015 but dismissed in 2018. The current application was filed in 2020. The right to apply accrued in July 2012, based on the last payment date. The applicant claimed exclusion of time under Section 14 of the Limitation Act and filed under Section 5 to condone the delay.

The Tribunal considered the dates of the previous company petition and the last payment. The applicant argued the petition was filed within three years of the right to apply accruing. However, the Tribunal found the current application was filed after the disposal of the previous petition, making it time-barred. The applicant's contention that the delay should be condoned due to the authorized signatory's health issues was also examined. The Tribunal referenced Section 5 of the Limitation Act, which allows for extension in certain cases. However, it held that in cases where a specific provision prescribes the filing period, condonation can only be under Section 14 or 18. Since the application was already time-barred, the Tribunal rejected the condonation request under Section 5.

In conclusion, the Tribunal dismissed the application under Section 9 as it was barred by limitation. Despite the applicant's arguments for condonation, the delay could not be justified under Section 5 of the Limitation Act. The judgment highlights the importance of adhering to limitation periods and specific provisions governing such applications.