9911796707
TMI Blog2025 (3) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... red while passing the order dated 02.05.2023 particularly qua the MOU dated 15.11.2018 entered amongst the Applicant, CD and the proprietorship firm of director of CD. All these facts have been considered already by the Tribunal in the order dated 17.08.2023 and the application was not even pursued by the Appellant because he was not present at the time of hearing.
Conclusion - i) The transaction involving Aryan Spaces was preferential under Section 49 of the Code, subject to further investigation by the Resolution Professional. ii) The limitation period for filing an appeal upheld, dismissing the Appellant's appeal on grounds of delay.
Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Aryan Spaces, is the owner of land admeasuring 24,300 sq. ft. situated at village Savorali, Taluka, Talasari, District Thane bearing Bhumapan Kramank/Gat Kramank 112 Upvibhag 7/1B. It is alleged that the Appellant and the CD entered into a memorandum of understanding dated 14.08.2018 as per which the Appellant agreed to transfer right, title and interest in the said plot to the CD for a total sale consideration of Rs. 2,25,00,000/-. It is further alleged that a sum of Rs. 1,20,00,000/- was paid by the CD to the Appellant between 07.08.2018 and 17.09.2018 through various transactions. Thereafter, second memorandum of understanding dated 15.11.2018 was entered into as per which the CD was a confirming party and M/s Ornate Developers, a proprietorship firm, through its proprietor Mr. Vijay Machinder was substituted as the purchaser for the sale of the said plot but the second MOU was cancelled on 14.08.2018. It is further alleged that a sum of Rs. 35,00,000/- was paid to the Appellant before executing the said second MOU. It is also alleged that in clause 3 of the second MOU, it was recorded that litigation of the said property has been fully settled and the balance amount towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterests of the company or its creditors. In such case, Aryan Spaces shall be liable to contribute a sum of Rs. 1,20,00,000/- to the Corporate Debtor or the Corporate Debtor shall be entitled to set-off this amount from the amount of its proprietor's admitted claim." 7. It is alleged by the Appellant that in the order dated 02.05.2023 the Tribunal has wrongly recorded that no reply was filed by the Appellant, therefore, the Appellant filed an application bearing I.A No. 2679 of 2023 for modification of the order dated 02.05.2023, however, the application bearing I.A No. 2679 of 2023 was disposed of on 17.08.2023. 8. It is alleged by the Appellant that he had challenged both the orders dated 02.05.2023 and 17.08.2023 by way of one appeal on 15.09.2023 but the appeal against the order dated 02.05.2023 was beyond the period of limitation, therefore, the application for condonation of delay was filed. The Appellant filed the additional appeal on 27.09.2023 which was numbered as CA (AT) (Ins) No. 1429 of 2023 pertaining to the challenge to the first order dated 02.05.2023 and the appeal filed on 15.09.2023 was confined to the order dated 17.08.2023 and was given number as CA (AT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Lifespaces Pvt. Ltd. as well as the Judgment of the Hon'ble Supreme Court in 2012 6 SCC 782, DSR Steel Pvt. Ltd. Vs. State of Rajasthan & Ors. 5. Learned Counsel for the Respondent refuting the submissions of the Appellant submits that the limitation for filing the Appeal against the Order dated 2nd May, 2023 shall commence from 2nd May, 2023. Learned Counsel for the Appellant was present on 2nd May, 2023 when the matter was heard and the limitation for filing the Appeal shall not be suspended till 17th August, 2023 when subsequent application is decided. He further submits that there is no question of merger of the order dated 2nd May, 2023 in subsequent order dated 17th August, 2023. 6. We have considered the submissions of Learned Counsel for the parties and have perused the record. 7. The parties are not in dispute that on 2nd May, 2023, I.A. filed by the RP being I.A. No. 1927 of 2021 was decided and Respondent No. 6 the present Appellant was present in the hearing and court passed the order after hearing learned counsel for the Appellant. Limitation for filing the Appeal against the Order dated 2nd May, 2023 shall commence from the date of passing of the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Appeal which came for consideration before the Tribunal was considered against the subsequent order dated 12th May, 2023. Observations were made by the Court were in reference to that context. Present Appeal is not against the subsequent order i.e. 17th August, 2023 rather the present Appeal is against the earlier order dated 02nd May, 2023. Hence the Judgment of this Tribunal in Ashok Tiwari does not render any help to the Appellant. 11. Learned Counsel for the Appellant has relied on another judgment of Hon'ble Supreme Court in the matter of DSR Steel Pvt. Ltd. as noted above, paragraph 25 of the Judgment which is to be following effect: "25. Different situations may arise in relation to review petitions filed before a Court or Tribunal. 25.1 One of the situations could be where the review application is allowed, the decree or order passed by the Court or Tribunal is vacated and the appeal/proceedings in which the same is made are re- heard and a fresh decree or order passed in the same. It is manifest that in such a situation the subsequent decree alone is appealable not because it is an order in review but because it is a decree that is passed in a proceeding aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order requesting the review can be taken for the purpose of limitation. Learned Counsel for the Appellant has relied on paragraph 25.2 and submits that present is a case covered by Paragraph 25.2. Paragraph 25.2 is a case where review petition allowed and decree order reversed or modified. Present is not a case where there was any modification of the Order dated 2nd May, 2023 more so present is not a case of review because the Tribunal does not have jurisdiction to review its Judgment, as noted above in the clarification order issued on 17th August, 2023, we thus are of the view that this Appeal having been filed beyond 15 days after expiry of the limitation and our jurisdiction to condone only 15 days hence the Delay Condonation Application is dismissed. Consequently, the Memo of Appeal is rejected." 10. The appeal filed by the Appellant against the order dated 08.12.2023 was dismissed on 04.12.2024. The order dated 04.12.2024 passed by the Hon'ble Supreme Court is also reproduced as under:- 1. Heard learned senior counsel appearing for the appellant. 2. We concur with the view taken by the National Company Law Appellate Tribunal (NCLAT) that the appeal against order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon'ble Supreme Court in the case of Raja Mechanical Co. (P) Vs. CCE, (2012) 12 SCC 613 in which it has been held that "In view of the plethora of decisions of this Court, wherein this Court has categorically observed that if for any reason an appeal is dismissed on the ground of limitation and not on merits, that order would not merge with the orders passed by the first appellate authority". 13. He has also relied upon a decision of the Hon'ble Supreme Court in the case of Chandi Prasad & Ors. Vs. Jagdish Prasad & Ors., (2004) 8 SCC 724 to contend that when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply. 14. He has further argued that if no merger applies then the order dated 02.05.2023 is capable of being rectified/ reviewed/recalled and in this regard, he has relied upon a decision of the Hon'ble Supreme Court in the case of Kunhayammed Vs. State of Kerala, (2000) 6 SCC 359 and for the purpose of recall, relied upon a decision of this Court in the case of Union Bank of India Vs. Dinkar T. Venkatasubramanian & Ors., 2023 SCC Online NCLAT 283 and quoted para 21 in which it has been held that the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case are not in dispute about filing of the application by Respondent bearing I.A No. 1927 of 2021, filing of the reply by the Appellant/Respondent to the Application and that the application bearing I.A No. 1927 of 2021 was allowed partly by the Tribunal while discussing the case of the Appellant in para 13 of the said order. There is also no dispute about the fact that the Appellant filed an application for recall of the order dated 02.05.2023 which was disposed of by the order dated 17.08.2023 and that the Appellant filed two separate appeals i.e. CA (AT) (Ins) No. 1429 of 2023 against the order dated 02.05.2023 which was dismissed by this Court on 08.12.2023 though on the issue of limitation and the said order has been confirmed by the Hon'ble Supreme Court when the Civil Appeal No. 1526 of 2024 filed by the Appellant was dismissed on 04.12.2024. 18. The grievance of the Appellant has been looked into by the Tribunal about the wrong recording of the fact that no reply has been filed by the Appellant and in this regard the Tribunal has categorically recorded in its order that the non-filing of the reply was in respect of Respondent No. 1 to 5 which was inadvertently record ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
