B.K. Educational Services Private Limited vs Parag Gupta and Associates - Supreme Court

 B.K. Educational Services Private Limited vs Parag Gupta and Associates - Supreme Court Important Judgment 2018 - 


On 11th October, 2018, in the case of B.K. Educational Services Private Limited v. Parag Gupta and Associates [Civil Appeal No.23988 of 2017], Section 238A of the Insolvency and Bankruptcy Code, 2016, which was inserted by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 with effect from 06.06.2018, came up for examination. Section 238A provides that “the provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be.”


The question for consideration was whether the Limitation Act, 1963 will apply to applications that are made under Section 7 and/or Section 9 of the Code on and from its commencement on 01.12.2016 till 06.06.2018. The Supreme Court held that the Limitation Act, 1963 “is applicable to applications filed under Sections 7 and 9” of the Insolvency and Bankruptcy Code, 2016 “from the inception of the Code” that is from 01.12.2016. It was held that “Article 137 of the Limitation Act gets attracted” and “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 Limitation Act may be applied to condone the delay in filing such application.” 

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