Naresh Sundarlal Jain vs Udaipur Entertainment World Pvt.Ltd.
WP 11982 of 2023
Facts: Petition was filed before the Bombay High Court by the Petitioner against the order of NCLT Mumbai bench challenging the order of approval of Resolution Plan and vacating the order of attachment of flat of Respondent No.1.
Issue: Whether the petition can be allowed?
Arguments:
Petitioner:
1.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.
2.It was further submitted that interest of the Petitioner, who has invested huge money by lending it to Respondent no.1 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
Respondent:
1.Counsel for the Respondent no.1 has taken a strong objection to the maintainability of this petition on the ground that the statutory remedy of appeal available to a person like the Petitioner has not been availed of within the limitation period provided therefor, 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.
2.Counsel submitted that 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 evident from the copy of the order placed on record by the Petitioner himself.
3.It was further submitted that lending of money for the development of project is one thing and making of agreement / allotment in favour of the flat purchasers of the home buyers is another thing and it is this difference between these two categories of persons which would set apart a person like the Petitioner from that of the home buyers who, in law could be treated as secured creditors in terms of section 3(30) of the IBC.
Decision: Hon’ble High Court dismissed the petition
Rationale:
1.Hon’ble HC noted that 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.
2.It further held that court, in the name of invocation of extraordinary jurisdiction under Article 226 of the Constitution, cannot permit a party to achieve something by indirect way which he cannot secure through direct means.
Order Copy:
