794

Hon’ble High Court held that:

(i) 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 to taking steps for protection of the interest of the Company. In the case of Ghanashyam Mishra (2021) ibclaw.in 54 SC, the Supreme Court has observed that when one of the wings of the State Government approaches NCLAT, it is difficult to believe that other organ of the State was not aware about the said proceedings.
(ii) Delay beyond 15 days in preferring an Appeal u/s 61 of IBC is uncondonable and the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.
(iii) 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 226 of the Constitution, which is not permissible.
(iv) High court would not do anything under Article 226 of the Constitution which cannot be done even by the Supreme Court under Article 142 of the Constitution.
(v) Mere lending of money without there being any security created for repayment of loan, would not create any security interest as contemplated under section 3(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.
(vi) This is 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.