9911796707
TMI Blog2023 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the project at Udaipur has been jeopardized, as order of attachment has been vacated and there is no protection granted to the Petitioner despite the fact that he stands in the same category as the home buyers who are recognized as unsecured creditors, under the Insolvency and Bankruptcy Code, 2016 (IBC), thereby pushing him to the bottom of the list of creditors of Respondent no. 1, as per water fall mechanism. He submits that the statutory remedy of appeal provided in Section 61 of IBC has, for these reasons, been rendered illusory for the Petitioner. The learned Counsel for the Petitioner submits that it is necessary that the Petitioner, standing at par with the other unsecured creditors including the home buyers, is duly protected and therefore, he prays for confirmation of the attachment order so that his interest under the PMLA as a victim would be protected. 6. According to the learned Counsel for the Respondent no. 1, all these submissions are misleading and do not hold any water. He submits that even though the Petitioner was not a party to the resolution proceedings before NCLT, Mumbai, the Petitioner did have the knowledge about passing of the NCLT order, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. This attempt made by one of the ex-directors of Respondent no. 1 cannot be said to be not within the knowledge of Petitioner. It was indeed within his knowledge, as it is impossible to digest a fact that one Director of a Company would not know what is done by the other Director, when it comes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 is of wide amplitude but it is certainly not wider than the power of the Supreme Court under Article 142 of the Constitution. Therefore, this court would not do anything here which cannot be done even by the Supreme Court under Article 142 of the Constitution. That means this petition must be dismissed. 13. We get support to our observations made as above from the case of Assistant Commissioner (CT) LTU, Kakinada and Others vs. Glaxo Smith Kline Consumer Health Care Limited (2020) 19 SCC 681. The Supreme Court, in this case, has held that High Court does not have any more power in exercise of its jurisdiction under Article 226 of the Constitution of India than that of the Supreme Court under Article 142. It is observed that under Article 142 plenary powers are bestowed on the Supreme but extraordinary power of the High Court under Article 226 of the Constitution of India, otherwise of wide amplitude, is not wider than the power of the Supreme Court in Article 142. If we consider the aforesaid observations of the Supreme Court made in these two cases of National Spot Exchange Limited (Supra) and Assistant Commissioner (CT) LTU, Kakinada and Others (Supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress 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. 17. At this stage, the learned counsel for Respondent no. 1 submits that now even the Appeal pending before the PMLA Appellate Authority questioning the order of attachment of properties of Respondent no. 1 has been rendered infructuous in view of the order passed by NCLT Mumbai which has attained finality. Although there is a truth in this submission, we are of the view that an order to this effect would have to be made by the said appellate authority, which we are sure, would be made by it. 18. Thus, we find that there is no merit in the petition and it deserves to be summarily dismissed. 19. The learned counsel for the Respondent no. 1 and also the learned counsel for the Respondent no. 2 both submit that this petition exemplifies the frivolity on the part of the Petitioner and therefore some exemplary costs are required to be imposed while ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
