TMI Blog2020 (3) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... of time line that statute prescribes. In any case, where the petitioner has not challenged the ultimate order dated 07-02-2020, merely on procedural aspect, the Court is not inclined to quash and set aside the order dated 05-02-2020. Petition dismissed. - R/SPECIAL CIVIL APPLICATION NO. 4783 of 2020 - - - Dated:- 2-3-2020 - HONOURABLE MR.JUSTICE A.Y. KOGJE ORDER 1. This petition is filed under Article-226 of the Constitution of India for quashing and setting aside the order dated 05-02-2020 passed in I.A. No.658 of 2019 in C.P. (I.B.) No.594/9/NCLT/AHM/2018. The challenge is on the basis of non-following of principles of natural justice and not affording an opportunity of hearing to the petitioner before passing the impugned order. The impugned order is for reserving the aforementioned proceedings for order. 2. It is the case of the petitioner that the Tribunal had reserved the order proceedings for order by the impugned order dated 05-02-2020 and immediately on 07-02-2020, the order was pronounced. The petition is filed, at that time, the petitioner was not having a copy of the order passed on 07-02-2020. Therefore, prayer is made that the Tribunal should co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(369)ELT3(S.C.) to contend that where the Tribunal is not situated within the State and is not like in the present case, where the Appellate Tribunal is in Delhi, then jurisdictional High Court under Article-226, can redressed the grievance. Reliance is placed upon the decisions of Embassy Property Developments Pvt. Ltd. v/s. State of Karnataka and ors. reported in 2019(17)SCALE37 to contend that despite the availability of statutory alternative remedy of Appeal to NCLT under Article-226 and 227 of the Constitution of India, writ can be issued by the High Court. 4. The petitioner also relied upon the decision of this Court in Special Civil Application No.10629 of 2019 in case of Dilip Sinh Madansinh Sisodiya V/s. Adjudicating Officer, where according to the petitioner, the right of the creditors is to be frustrated, in that case, an opportunity of hearing is necessary and such issues are required to be decided by the NCLT. 5. Having heard the submissions of the learned Advocate for the petitioner and having perused the documents on record, today, when the matter is argued, the learned Advocate for the petitioner has placed on record the decision taken by the NCLT in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor and therefore without perusal of the said Agreement it can not be made out as to whether the nature of the transaction falls within the ambit of subsection 8(f) of Section 5 of the IB Code 2016 and whether it can be regarded as financial transaction and whether the said Agreement can be regarded as financial. Contract. It is submitted that without perusal of the said Agreement it can not be ascertained that the amount paid by the Applicant was to be repayable alongwith interest over a period of time and whether the Applicant has disbursed the money against the consideration for the time value of money which is required to be satisfied in pursuance of the opening words of the definition clause sub-section (8) of Section 5 of the IB Code 2016. 9. It is stated in the Affidavit that considering the aforesaid facts, the Respondent has not considered the claim of the applicant as financial debt and advised the applicant to provide the substantial evidence in support of its claim to enable him to decide further and being aggrieved the Applicant has preferred to file the present application before this Hon ble Tribunal. However, in view of the foregoing submissions, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed, where from it can be deduce, that the amounts are paid against the agreement for the sale and purchase of land of Corporate Debtor. 12. Not only this, there is also shadow of doubt on Annexure-B i.e. letter dated 14.09.2018 of the applicant upon which total claim is based as the claimant failed to produce proof of dispatch, claiming that applicant has paid the amount against the land of the Corporate Debtor as earnest money, the claim cannot be accepted in absence of any acceptance from the side of Corporate Debtor, so as to term it as valid contract. It may be presumed to be a manufactured document as the applicant has failed to show his bonafide. Under such circumstances, his claim as other stake holders is / are also clouded and needs thorough verification by RP. 13. The Applicant in the application pleaded that the amount is paid as earnest money. Basically, earnest money serves two purposes: it remains as security or earnest for performance of the contract of sale but it becomes part of payment of the purchase money immediately on fulfillment of the contract, which is found absent in this case because of want of documents, such as, Contract Agreement for sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the NCLT for proceeded in due course and the order-sheet also reflects the proceedings and the reasoned orders passed by the NCLT from time to time. Judgment relied upon by the petitioner in judgment of the Bombay High Court in case of Kamal K. Singh (supra), the same have been started with the challenge to declare that Section-231 of IBC as unconstitutional, which was later on not pressed. Circumstances, which the Bombay High Court recorded in the facts of those cases, was that the Presiding Officer of the Tribunal had fixed the matter for pronouncement of order on the specific date, pending which the Presiding Officer was elevated to the Appellate Tribunal and the judgment in the proceedings were displayed without their being an actual pronouncement. It is in this glorying facts that High Court found procedural lapse and therefore, intervened. With regard to the reliance on judgment of Rojer Mathew (supra), clearly para-204, which list the non-exhaustive list of statutes under which the Tribunal have been constituted wherein ICB is at Sr. No.23, refers to the provision of Section-62 and Section-182 of IBC. Both these sections are providing for an appeal to Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
