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Judgment
ORDER
18.11.2022: Heard Mr. Saurabh Kalia, learned counsel for the appellant and Mr. Arpit Dwivedi, learned counsel, who has appeared on behalf of the Respondent No.1/Liquidator. The present appeal under Section 61 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as IBC) has been preferred against an order dated 03.02.2021 passed by the National Company Law Tribunal, (hereinafter referred to as ‘NCLT) Court III in CA No.672/2019 in Company Petition No.IB-1345(ND)/2019. By the said order the Learned NCLT has dismissed the intervention petition filed by the appellant.
The short fact of the case is that the company namely M/s Nextgen Procon Private Ltd, Respondent herein, in view of provisions contained in Section 59 of the IBC preferred for voluntarily liquidation. Thereafter in liquidation proceedings, the Liquidator, following due process of law, made publications in newspapers inviting claims from the claimants or creditors of the company in question. The last date of submitting claims was fixed as 07.03.2018. Despite due publication the liquidator did not receive any claim from the appellant herein. However, once the Liquidator filed its final proposal before the NCLT on 27.05.2019 immediately thereafter i.e. on 28.05.2019 the appellant herein approached the liquidator by email raising his claim to the tune of Rs.49 lakhs and odd. However, the liquidator did not entertain the claim due to the reasons that he had already filed the liquidation proceedings before the NCLT and the matter was sub-judice before NCLT for passing order of the dissolution of the company under Section 59(7) of the IBC after filing of the liquidation proceedings.
On 28th August, 2019, the present appellant filed an intervention petition before the NCLT raising his claim. After filing of the intervention petition, reply was also filed by the Liquidator on 31.10.2019. A plea was taken that since the Intervenor itself failed to submit the claim within the specified period, the present application with regard to claims of the Intervenor cannot be considered as the same was barred by limitation. After filing of reply, Learned NCLT granted time to the Intervenor appellant herein to file rejoinder. Despite several indulgences no rejoinder was filed within time. Thereafter by order dated 02.03.2020 the Ld. NCLT enlarged the time for two days for filing rejoinder with indication that if it is not filed within two days, the right to file rejoinder will stand forfeited. Despite such stringent order the appellant slumbered over his right and after lapse of several months on 23.12.2020 filed rejoinder. Alongwith the rejoinder the appellant herein brought on record an email dated 18.07.2016 which was sent on behalf of the company in question to the appellant admitting the claim. It has been argued that the Learned NCLT finally by order dated 03.02.2021, which is impugned herein, has rejected the intervention petition. It was argued that it is true that the rejoinder was not filed within time but in any event the relevant document i.e. email dated 18.07.2016 was on record. However, the learned NCLT has not taken note of such document.
Mr. Saurabh Kalia, learned counsel for the appellant by way of referring to Page 90 of the Memo of Appeal has drawn our attention to copy of email dated 18.07.2016. He submits that as per the said email which was sent from the company in question, the appellant was given to understand that the bill for an amount of Rs.49.3 lakhs was under process and would be released. According to him since it was admission by the company itself, it was necessary for Adjudicating Authority to take into account the said document. He further submits that even at Appellate Stage this Tribunal can taken note of such document. He submits that normally it is true that at the Appellate Stage no document is required to be entertained but there are certain exceptional circumstances where even the Appellate Court can entertain such document. In support of his submission he placed reliance on a judgement of the Hon’ble Supreme Court in the case of Basayya I Mathad Vs Rudrayya S Mathad and Others (2008) 3 Supreme Court Cases 120. He referred to para 11(iv). He has also referred to the judgement of Hon’ble Supreme Court in the case of Union of India Vs Ibrahim Uddin and Anr, (2012) 8 Supreme Court Cases 148. He has referred to para 47. It is apt to reproduce para 11(iv) and para 47 of Hon’ble Supreme Court (supra) judgement respectively as follows:
“11(iv) The third infirmity is that though the parties to the proceeding can produce a document as additional evidence even in appellate court, undoubtedly, they have to adhere and satisfy the mandates provided under Order 41 Rule 27. For clarity, we hereby reproduce the same.
“27.Production of additional evidence in appellate court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, But if-
(a)The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or” xxxx
“47.Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.”
According to the learned counsel for the appellant once the document i.e. mail dated 18.07.2016 was placed before the NCLT, the Learned NCLT was required to examine the same. He submits that since the rejoinder was not entertained by the Learned NCLT, this Appellate Tribunal may take notice of the said document and pass appropriate order.
Mr. Arpit Dwivedi, learned counsel for the sole Respondent/Liquidator opposed the prayer. He submits that the Learned NCLT has committed no error in rejecting the intervention application. He submits that after initiation of liquidation proceedings under Section 59 of IBC Liquidator published notice inviting claim, however, no claim was received from the appellant herein. In absence of any claim from the appellant herein, the Liquidator proceeded with the liquidation proceeding and after settling all the claims of the company proceeded for dissolution of the company before the NCLT under Section 59(7) of the IBC. According to the learned counsel for the Respondent even if the email dated 18.7.2016 is taken note of the claim of the appellant was required to be rejected since it was beyond three years and barred by limitation. He has also argued that of course the Liquidator had published notice for raising claim but no claim was raised by the appellant before the liquidator. Mr Dwivedi submits that though a legal notice dated 11.2.2016 was served to the company for a claim of Rs.49,32,917/- it was later on withdrawn vide letter dated 16.2.2016. He further submits that a notice dated 23.2.2016 under Section 434 of the Companies Act, 1956 was issued which was replied on 16th March, 2016 and thereafter demand notice under Section 8 of the IBC was issued but the appellant never filed petition under Section 9 of the IBC. In sum and substance it was argued that the appellant was not entitled to get his claim settled and also the appellant is not entitled to claim any amount after expiry of three years. He may not be allowed to exercise his right which has already came to an end by virtue of the claim being barred by limitation.
Besides hearing learned counsel for the parties, we have minutely perused the materials available on record. After going through the same it is evident that the appellant proceeded completely in a casual manner and as such in normal course he may not get any favour. However, it is evident that a document, i.e. email dated 18.07.2016 was filed alongwith belated filed rejoinder, which document we have also perused. We are of the opinion that in exceptional circumstances we can take notice of such document for proper adjudication of the matter. It is evident that the proposal of dissolution of the company was submitted by the liquidator before the NCLT and before NCLT this document i.e. email dated 18.07.2016 was purported to be brought on record belatedly. It is observed that the Learned NCLT may take notice of this document and pass appropriate order in accordance with law. On the limited question of examining the document i.e. email dated 18.07.2016, the order impugned can be interfered with. Accordingly, we set aside the impugned order and remit back the matter to NCLT to take note of the said document and pass appropriate order in accordance with law. It is made clear that we have taken note of only document i.e. email dated 18.7.2016 and on examination of said document whatever decision the NCLT intends to take may take and pass appropriate order as per law. It goes without saying that neither we have recorded our opinion on merit of the case nor we have condoned the limitation period.
With the above observation the appeal is disposed and the matter is remitted back to the NCLT to decide the same in accordance with law.