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TMI Blog2023 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... refor, and as such, the order of National Company Law Tribunal (for short "NCLT") vacating the attachment order passed by adjudicating authority under the provisions of Prevention of Money Laundering Act, 2002 (PMLA), has now attained finality. 4. The learned Counsel for the Petitioner submits that even though there is available to Petitioner such statutory remedy of Appeal before National Company Law Appellate Tribunal (for short "NCLAT") and that the Petitioner did not avail of it within limitation, there is a justification for the Petitioner not taking recourse to the remedy of statutory appeal in the present case. He submits that Petitioner was not a party before the NCLT proceedings which resulted in approval of the resolution plan of the Corporate Debtor i.e. Respondent no. 1, while vacating in the process the order of attachment of the flats constructed by Respondent no. 1 in Royal- Raj Vilas Project, Shobhagpura Circle, Udaipur Rajasthan and that was the reason why the Petitioner had not learnt about the passing of the order, portion of which is causing prejudice to the Petitioner, and that is why he is before this court now. 5. The learned Counsel for the Petitioner furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor there must be a creation of security interest in favour of the creditor and in the present case, the security interest was created in favour of home buyers by virtue of the agreements/allotments made in their favour, and whereas no such agreement/allotment was there in favour of the Petitioner, with the result, the Petitioner continued to remain in the category of an unsecured creditor. He further submits that now the order of NCLT has attained finality, with the Petitioner, or any other interested party not having preferred any statutory appeal before NCLAT and therefore, this petition must not be entertained under the garb of alleged prejudice caused to the Petitioner by vacating of the attachment order passed by the adjudicating authority in terms of the provisions of PMLA Act. He thus, prays for summary dismissal of the Petition. 7. Upon considering all the rival submissions of the Petitioner, relevant provisions of law and conduct of the Petitioner, we are of the view that there is no merit in the Petition and it deserves to be summarily dismissed. The reasons for reaching such a conclusion are stated in the ensuing paragraphs. 8. There is no doubt about the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. In the case of National Spot Exchange Limited vs. Anil Kohli, Resolution Professional for Dunar Foods Limited (2022) 11 SCC 761, the Apex Court has held that considering the statutory provisions which provide that delay beyond 15 days in preferring an Appeal, is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution. This ruling of the Supreme Court was in the context of the statutory remedy of Appeal provided under section 61 of the IBC. 12. So, now there is no way that the NCLT order which has attained finality can be interfered with by this court. We must add here that what cannot be done directly by taking recourse to the statutory remedy of appeal cannot be permitted to be done indirectly. This is what the Petitioner is trying to do by filing this petition invoking extra-ordinary jurisdiction of this court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in favour of the Petitioner unlike the home buyers in whose favour there were agreements/allotments made for sale of flats in their favour creating in them a security interest as defined under Section 2(31) of the IBC. We may say it here that mere lending of money without there being any security created for repayment of loan, would not create any security interest as contemplated under section 2(31) of the IBC and therefore, a person like the Petitioner can only be treated as an unsecured creditor as defined under the IBC, and we do treat him to be so. This is, however, not so in case of home buyers in whose favour there have been issued allotment letters and/or agreements made, thereby creating security interest for sale of flats to them as per Section 2(31) of the IBC, putting them unmistakably in the category of secured creditors under Section 2(30) of the IBC. 15. At this stage, the learned counsel for the Petitioner raises a contention that the proceedings before NCLT were not maintainable as NCLT at Mumbai had no territorial jurisdiction over the subject matter considering the fact that all the properties of Respondent no. 1 Company were situated in Rajasthan. 16. We f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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