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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 ..... [ 2021 (3) TMI 1183 - SUPREME COURT] that an application filed under Section 5 of the Act is maintainable. 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 be dismissed, although limitation has not been set up as a defence. - Since, there is no dispute that the period of limitation shall be three years from the date when the right to file accrues i.e. date when the default occurs, the Adjudicating Authority shall be well within its right not to entertain the application filed under Section 7 or 9 of the Code as the case may be but the delay, if any, can be condoned in terms of the Section 5 of the Act. Since Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 28.03.2014 of payment of the total sum of Rs. 36,13,744/- alongwith interest @ 18 % per annum and as a result thereof, the OC had to file an application under Section 9 of the Code, which was listed before the Adjudicating Authority bearing CP (IB) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy 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 the Memo of Appeal is accordingly amended in order to allow the Appellant to challenge the order dated 04.12.2020. 5. Counsel for the Appellant has vehemently argued that the impugned order dated 25.09.2020 is patently illegal and deser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, 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 be dismissed, although limitation has not been set up as a defence. 11. The limitation to file the suits, appeals and applications is provided in the schedule appended to the Act which has three divisions. 1st division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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. 13. Since Section 5 is an enabling provision for the purpose of extending the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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