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Judgment
ORDER
The instant Company Appeal puts a challenge to the Impugned Order dated 26.10.2022, by virtue of which the Company Petition in CP(IB) No.7/7/AMR/2022 seeking initiation of the CIRP Proceedings, stood dismissed by NCLT, Amaravati. During the pendency of the Company Appeal, the Appellant has filed IA No.2/2023, praying for the placing of certain documents namely: -
email communication
Letter dated 27.04.2020
Copy of terms of Settlement dated 31.11.2020
Copy of Cancellation of Terms of Settlement dated 05.10.2021 on record for the purpose of consideration by the Tribunal when the Appeal is heard on merits. Production of Additional documents in Appeal will attract the principles of Order 41 Rule 27 of the CPC, as per NCLAT Rules 73(1). Order 41 Rule 27 is extracted hereunder: -
“Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce the 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
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b)the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2)Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission”.
The Appellant’s Counsel pleads that the existence of these documents were not may be taken on record for the purpose for being considered that at the stage when known to him during the proceedings, before NCLT Amaravati, and hence he could not present them before NCLT, but that, these documents will have a vital bearing on the adjudication of the appeal itself on merits.
The Application is vehemently opposed by the Respondent. We are of the view that the documents which are sought to be placed on record such as Terms of the Settlement dated 30.11.2020 and the cancellation of the Terms of the Settlement dated 15.10.2021 etc., are the documents whose the merits will have to be scrutinized by virtue of leading the evidence by the parties, who were before the NCLT.
Therefore, it would be apt that though this Appellate Tribunal could have considered this Application at the stage of the final hearing of this Company Appeal, it is better that it is better done at the level of NCLT because it entails appreciation of evidence for determining the authenticity of the documents to be taken on record.
Accordingly, we remit the matter back to the Learned NCLT, by invoking the provisions contained under Order 41 of Rule 28 of CPC with a request limited to the extent of, to recording its findings pertaining to the propriety of the said documents after appreciation of evidence and returning the findings so made on the documents to this Tribunal, within the period of one month from the date of receipt of the Certified Copy of this order.
It’s only upon the finding being recorded by the NCLT, the parties would be open to be addressed upon the propriety of the Application under Order 41 Rule 27 of the CPC, as to how it will have bearing on the principal adjudication of the issue as against the Impugned Order of 26.10.2022. The Registry is directed that the copy of this order be placed before the NCLT, Amaravati Bench at Mangalagiri, with a request for recording and returning its findings under Order 41 Rule 28 of CPC.