2023 (10) TMI 11 - HC - Insolvency and Bankruptcy

Maintainability of petition - availability of statutory remedy of appeal - Petitioner has not been availed of within the limitation period provided therefor - seeking vacation of attachment order - HELD THAT - There is no doubt about the fact that the Petitioner was not a party to the resolution proceedings pending before the NCLT, Mumbai but we find that Petitioner was not a person who could have said to have remained in the dark all throughout about passing of the order by the NCLT. This is evident from the fact that one of the ex-directors of Respondent no. 1 had belatedly filed an appeal under section 61 of the IBC before NCLAT along with application for condonation of delay and the application for condonation of delay was dismissed by NCLAT by a speaking order passed on 14th July 2023. This order states that power vested with the Appellate Tribunal to condone the delay is only of 15 days as provided under proviso to section 61(2) of the IBC and beyond this period, no delay could be condoned by NCLAT. The NCLAT also noted the fact that delay occurred in filing of the Appeal filed by other ex-director of Respondent no. 1 was of 423 and 164 days which was beyond the power of condonation of delay vested in the appellate tribunal. In the present case, the order passed by NCLT, and in particular, the portion by which order of attachment of flats passed by PMLA authority has been vacated, has attained finality, as rightly submitted by the learned counsel for the Respondent no. 1. This is for the reason that no appeal has been preferred against it before NCLAT within the stipulated period of time or within the extended period of time as provided under section 61 of the IBC by anybody including the Petitioners. There are no merit in the submission as it is an admitted fact that the registered address of Respondent no. 1 company is of Mumbai and therefore, NCLT Mumbai would have had the jurisdiction in the matter. Even otherwise, if any such contention was to be made, it could have been made by the Petitioner by availing of statutory remedy of appeal, which remedy now has been forfeited by him on account of his own lethargy. There is no merit in the petition and it deserves to be summarily dismissed - Petition dismissed.

Summary

Issues Involved:
1. Maintainability of the petition.
2. Justification for not availing the statutory remedy of appeal.
3. Status of the Petitioner as an unsecured creditor.
4. Jurisdiction of NCLT Mumbai.
5. Impact of NCLT order on PMLA Appellate Authority proceedings.
6. Imposition of exemplary costs.

Summary:

1. Maintainability of the Petition:
The Respondent no. 1 objected to the petition's maintainability, arguing that the Petitioner did not avail the statutory remedy of appeal within the limitation period, making the NCLT order final. The court found this objection valid, as the Petitioner failed to file an appeal within the stipulated time.

2. Justification for not Availing the Statutory Remedy of Appeal:
The Petitioner claimed ignorance of the NCLT order due to not being a party in the proceedings. However, the court noted that the Petitioner had knowledge of the order, as evidenced by an ex-director's appeal attempt, and thus, the excuse for not appealing was without merit.

3. Status of the Petitioner as an Unsecured Creditor:
The Petitioner argued for protection as an unsecured creditor under the IBC. The court dismissed this, stating that the Petitioner, unlike home buyers who had agreements creating security interests, remained an unsecured creditor due to the lack of any such agreement.

4. Jurisdiction of NCLT Mumbai:
The Petitioner challenged the jurisdiction of NCLT Mumbai, citing that the properties were in Rajasthan. The court rejected this, affirming NCLT Mumbai's jurisdiction based on the registered address of Respondent no. 1 in Mumbai.

5. Impact of NCLT Order on PMLA Appellate Authority Proceedings:
The court acknowledged that the NCLT order, having attained finality, rendered the pending PMLA appeal infructuous, a determination to be formally made by the PMLA Appellate Authority.

6. Imposition of Exemplary Costs:
Respondents requested exemplary costs for the frivolous nature of the petition. The court, however, declined to impose any costs, considering the totality of circumstances.

Conclusion:
The petition was summarily dismissed, with the court discharging the rule and imposing no costs.