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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 ..... LD THAT:- 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 [ 2018 (10) TMI 777 - SUPREME COURT ] held that the right to sue, therefore, accrues when a default occurs and that if the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where in the facts of the case Section 5 of the Act may be applied to condone the delay in filing such an application . The Tribunal has also held that the Appellant can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 of date of default i.e. 30.06.2014 is as under:- 1. Account type Term Loan I 2. Account no. 06187021000050 3. Amount of disbursement Rs. 20 Cr. 4. Date of Default 30.06.2014 5. Rae of Interest 14.75% p.a. 6. Total outstanding as on 31.12.2018 including interest, expenses and subjudice LCs Rs. 25,14,76,258.00 1. Account type Term Loan II 2. Account no. 06187021000067 3. Amount of disbursement Rs. 5 Cr. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 condonation of delay was filed before this Hon'ble Tribunal as at the time of filing the present company petition, an application u/s 19 Recovery of Debts and Bankruptcy Act, 1993 bearing OA No. 227.. of 2016 was pending before the Hon'ble Debt Recovery Tribunal-II, Chandigarh and the applicant had a bonafide belief that the pendency of the Original Application against the corporate debtor amounts to the continuous cause of action and as such the applicant can fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where in the facts of the case Section 5 of the Act may be applied to condone the delay in filing such an application" 13. It was also held that the plea of the Appellant after the decision of the Supreme Court in the case of B.K Educational (Supra) which was pronounced on 11.10.2018, pendency of OA under SARF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 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. 01.12.2016 and not from the date when the account of the CD was declared as NPA, in the application itself, the Appellant has mentioned that it has been held by the Hon'ble Supreme Court and by this Court in various judgments that the period of limitation would start from the date of NPA in the case of FC which in this case would start from 30.09.2014 and the application having been filed on 04.02.2019 is delayed of 493 days. 17. As a matter of fact, the Appellant has n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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