Deepak Vidyasagar Katiyar vs Nilesh Sharma & Anr

Deepak Vidyasagar Katiyar ...Appellant(s)

Versus

Nilesh Sharma & Anr. ...Respondent(s)

Present: For Appellant : Mr. Anurag Bhatt, Mr. Lokesh Pathak Mr. Bilal Ali, Mr. Ankur Gupta, Mr. Vaibhav Vijayvargiya, Advocates. For Respondents :

ORDER

(Hybrid Mode)

15.03.2024: I.A. No. 1563 of 2024. This is an application for condonation of delay of 106 days in re-filing the appeal. The Learned Counsel for the Appellant submits that the delay was attributed due to the medical reasons which is annexed in this I.A. Caused sufficient. Delay in re-filing of appeal is condoned.

2. Heard Learned Counsel for the Appellant. This appeal is filed against the order dated 14.09.2023 passed by Adjudicating Authority in IA No. 2952/2023. By which order, the said IA was dismissed which is as follows:

"IA-2952/2023:-

This application has been filed by the Applicant seeking the following prayers:

"Direct the Respondent No.2 (SRA) to provide unit to Applicant in parity with the whole class of allotees, in terms of order dated 27.05.2022 passed by this Hon'ble Tribunal in I.A 2407/2022 and Section 30(2)(b) of the Code, preferred by the Applicant."

Ld. Counsel appearing for the Applicant has submitted that in I.A 2407 /2022, he had made four prayers which are as follows:

-2- a) Allow the present Application;

b) Pass an Order Declaring the Resolution Plan of the Conso Consortium of Canary Greens Buyers Welfare Association, Callidora Flat Owners Welfare Association and Royal Elegancia Apartment Buyers Association, as approved by the members of the Committee of Creditors in the 12th Meeting of the Committee of Creditors dated 10.08.2021 9 in violation of the provisions of the Insolvency and Bankruptcy Code, 2016;

c) Pass an Order directing the Committee of Creditors to Reconsider the Resolution Plan of the Consortium of Canary Greens Buyers Welfare Association, Callidora Flat Owners Welfare Association and Royal Elegancia Apartment Buyers Association, approved by the members of the Committee of Creditors in the 12th Meeting of the Committee of Creditors dated 10.08.2021;

d) Pass an Order Declaring the Applicant as an Allotee in accordance with Section 5(8) (f) of the Insolvency and Bankruptcy Code, 2016 and shall be treated as an "Allottee";

Ld. Counsel appearing for the Applicant has submitted that this Tribunal has not considered the prayer No. (d) of IA-2407 /2022 while passing the order dated 27.05.2022 and has rejected the IA only on the ground that since Resolution Plan has been approved by the CoC in which the Authorized Representative of the class of Home Buyers is a member, the present application is not maintainable. Ld. Counsel has further submitted that issue with regard to the prayer (d) is open and needs to be adjudicated. Mr. Kanishk Khetan, Ld. Counsel for the RP has submitted that since the earlier application i.e. IA-2407 /2022 has already been dismissed wherein all the prayers have been considered by this Adjudicating Authority, the present application cannot be entertained, since it is hit by the principles of Res-judicata.

-3- We have heard the submissions of Ld. Counsel appearing for both the parties and perused the contents of the present application as well as IA2407 /2022 and order dated 27.05.2022. We are of the considered view that this Adjudicating Authority vide order dated 27.05.2022 in IA-2407 /2022 has considered all issued and dismissed the application on merits. The present application is misconceived and devoid of any merit cannot be entertained and which is accordingly dismissed.

IA dismissed.

3. The grievance of the Learned Counsel for the Appellant is that in the earlier order which was prayer D made by the Applicant was not considered by the Adjudicating Authority hence the Appellant has filed IA No. 2952 of 2023. The prayers made in the earlier application i.e. IA No. 2407 of 2022 has been quoted by the Adjudicating Authority in the Order as quoted above. Where prayer D as made in the application was rejected it would be deemed that all the prayers have been considered and rejected. The Applicant cannot be allowed to reiterate the issue once the prayer has been made and not favourable considered.

4. We do not find any error in the order of the Adjudicating Authority rejecting the IA No. 2952 of 2023. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

R.N./N.N.