Mr. Alok Sharma vs M/S I P Construction Pvt. Ltd Through ...

Present: For Applicant/ : Mr Abhishek Anand and Mr. Karan Kohli, Advocate 1st Respondent For Resolution Professional.

For Respondent/: Ms. Varsha Banerjee, Advocate Appellant:

ORDER

(virtual mode) 18.08.2022:

Heard both sides.

The Applicant/1st Respondent (through Resolution Professional) has preferred an I.A. No. 2611 of 2022 in CA(AT)(Ins) No. 350 of 2020, under Rule 31 of NCLAT Rules, 2016, seeking issuance of appropriate clarifications for the directions issued in para 6(m) of the Judgment dated 17.06.2022 passed by this `Tribunal' in CA(AT)(Ins) No. 350 of 2020, in view of non- availability of `Occupancy Certificate' with the `Corporate Debtor' in respect of commercial space 'Caral Brio' situated at Plot No. 5, Sector-18, Vasundhara, Ghaziabad ("Project").

For fuller and better appreciation of the subject matter in issue, the pertinent observations made by this `Tribunal' at para 6(m) of the Judgment dated 17.06.2022 in CA(AT)(Ins) No. 350 of 2020, which is reproduced as under:

IA No.2611 of 2022 in Comp App (AT) (Ins) No.350 of 2020 Page 1 of 4 6(m). Hence, in view of the above observations, this `Appellate Tribunal' is not in a position to sustain the order of the `Adjudicating Authority' and accordingly, this `Tribunal' sets aside the impugned order dated 16.01.2020, dismissing CA No.2265/(PB)/2019 in CP(IB) 593 of 2018 and directs the `Resolution Professional' to execute the sale deed after collecting `Dues and Costs', if any, remaining unpaid, including the `Costs of Registration', `Penalty' and `other incidental Costs', till date, etc.

To be noted that, Rule 31 of the NCLAT Rules, 2016, under the caption `Interlocutory Applications', enjoins that ``Every Interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appealed against or extension of time prayed for in pending matters shall be in Form NCLAT-2 and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing a affidavit supporting the application.''

In this connection, it is not out of place, this `Tribunal' to significantly point out that Rule 11 of NCLAT Rules, 2016, under the subject `Inherent Powers', speaks as follows:

``Noting in these rules shall be deemed to limit or otherwise affect the inherent powers of the `Appellate Tribunal' to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal.''

Earlier, this Tribunal while passing the judgment dated 17.06.2022 in CA(AT)(Ins) No. 350 of 2020, inter alia had observed while setting aside the impugned order dated 16.01.2020 in CA No. 2265/(PB)/2019 in CP(IB) No. 593 of 2018 had directed the Resolution Professional to execute the sale deed after collecting Dues and Costs, if any, remaining unpaid, including the Costs of Registration, Penalty and other incidental Costs till date etc., and this `Tribunal' is of the considered view that the directions issued to the

IA No.2611 of 2022 in Comp App (AT) (Ins) No.350 of 2020 Page 2 of 4 'Resolution Professional' as mentioned supra are quite explicit, admits of no exception, besides the same being an unequivocal one.

As a matter of fact, those observations are unambiguous without any iota of doubt and in short, they do not require any clarification or elucidation or expatiation in the hands of this `Tribunal' in the instant IA No. 2611 of 2022, especially, when this `Appellate Tribunal' had become `Functus Officio', after passing of the Judgment in the main `Company Appeal'.

Under the garb of purported clarification, the Applicant/1st Respondent cannot embark upon an endeavor to reopen a concluded Judgment delivered between the `Parties', in the instant `Appeal', by filing the I.A. No. 2611 of 2022, before this `Tribunal', as opined by this `Tribunal'.

Although, the Learned Counsel for the Applicant/1st Respondent informs this `Tribunal' that the Applicant/1st Respondent is not aggrieved against the Judgment dated 17.06.2022 in CA (AT) (INS) No. 350 of 2020 and that the Applicant/1st Respondent requires a clarification to a limited extent in regard to the observations made in para 6 (m) of the Judgment in CA (AT) (INS) No. 350 of 2020 dated 17.06.2022, this `Tribunal' unhesitatingly holds that it had become `Functus Officio', after passing of the Judgment in the main `Company Appeal'.

Therefore, if the Applicant/1st Respondent has any simmering doubt upon the observations so made by this `Tribunal', at para 6 (m) of the Judgment in CA (AT) (INS) No. 350 of 2020 dated 17.06.2022, which requires any alleged clarification as he perceives Viz., the non-availability of `Occupancy Certificate' with the `Corporate Debtor', in respect of commercial space, `Caral Brio', situated at Plot No.5, Sector-18, Vasundhara, Ghaziabad (``Project''), it is just and appropriate for the Applicant/1st Respondent to explore the possibility/feasibility/viability of assailing or questioning that part of the observations so made by this `Tribunal', before the `Competent Higher Forum', ofcourse, in the manner known to `Law' and in accordance with `Law', if he so desires/advised.

IA No.2611 of 2022 in Comp App (AT) (Ins) No.350 of 2020 Page 3 of 4 With the aforesaid observations and directions, IA No. 2611 of 2022 in CA (AT) (INS) No. 350 of 2020 stands `disposed of'. No costs.

[Justice M.Venugopal] Member (Judicial)

[Dr. Ashok Kumar Mishra] Member (Technical)

Raushan/SR/gc

IA No.2611 of 2022 in Comp App (AT) (Ins) No.350 of 2020 Page 4 of 4