Y. Ramesh vs MKS Constro Venture Pvt. Ltd.

The instant company appeal was preferred by the Appellant, agitating his grievances, as against the Order dated 10.01.2024, which was passed in CP. (IB) No. 214/9/HDB/2021. The consequential effect of the order, which is under challenge is that, the application filed under Section 9 of I & B Code, by M/s. MKS Constro Venture Private Limited (Operational Creditor) against M/s. Navayuga Infra Projects Private Limited (Corporate Debtor) alleging re-payment of the debt was admitted by the Ld. Adjudicating Authority, resulting in initiation of CIRP proceedings.

The appeal was preferred on 16.01.2024, and this Appellate Tribunal at the initial stage while considering the argument raised by the Ld. Counsel for the Appellant, had passed a stay order on 17.01.2024, to the effect that, the Tribunals order passed on 10.01.2024 shall be deferred to be implemented for four weeks, the same is operating till date.

Today the matter is listed on an Interlocutory Application being IA No. 301/2024, by virtue of which the appellant has sought, to seek permission of this Tribunal for placing certain additional documents on record as detailed in Para 1 of the application being IA No. 301/2024. In fact, the Ld. Counsel for the Appellant while pressing upon the aforesaid interlocutory application has submitted that, the documents which has been referred and were brought to the knowledge of the Appellant, had arisen from the communications made on 01.02.2024, 11.01.2024 and 01.03.2024 and thus by virtue of the aforesaid dates, the Ld. Counsel for the Appellant in fact intended to argue, that these documents since being subsequent to the passing of the Impugned Order deserve to be taken on record.

On the contrary, the Ld. Counsel for the Respondent, has vehemently opposed the application, for taking the additional documents on record on the ground that, in fact, it is nothing but a ploy, by the Appellant to delay the proceedings, that the so-called additional documents sought to be taken on record was always with him as he is the Director in both companies, Navayuga Engineering Company Limited and Navayuga Infra Projects Private Limited, that the former is the holding company of the latter, and both have the address, that is, Plot No. 379, Road No. 10, Jubilee Hills, Hyderabad, as can be seen from the documents and that these documents in fact were generated by the principal contractor, M/s. Navayuga Infra Projects Private Limited, intending to delay the proceedings by taking an advantage of the Interim Order already granted, though, as per the settled preposition of law, the documents, which has been sought to be taken on record are not at all relevant to be considered for the purposes of deciding the controversy arising from the admission of Section 9 proceedings by the Ld. Adjudicating Authority.

The Appellate Tribunal then called upon the Ld. Counsel for the Appellant to justify the prayer for taking the additional documents on record in the context of the provisions applicable in the field of taking additional documents on record. He could give only one reason, as contained in Para C, of the application, that these documents were earlier not available with the applicant as he is not the original intended recipient and that he received the said documents from the principal contractor at a later stage.

This will not constitute to be a justifiable reason to override the basic principles contemplated under Order XLI Rule 27 of C.P.C., prescribing the procedure for taking the additional documents on record. Apart from it, the paragraph, the reasons as adduced therein for taking the additional documents on record, are seen to be based upon the personal knowledge and on legal advice as stated in the rectification clause of the affidavit. We may not be required to venture into the aforesaid aspect, but if the documents, which has been appended thereto, which are subsequent to the Impugned Order contains the details of the other annexures which are sought to be placed on record as they find a reference in the communications made after passing of the Impugned Order.

We are of the view that, so far as the aspect pertaining to Section 9 of the I & B code is concerned, that is what limited purview to be argued in the context of the implications drawn from Section 9. The documents thus appended with IA No. 301/2024, to be read as additional documents for the purposes of the appeal are not sustainable and not relevant for the purposes of deciding the principle controversy.

Thus, the application IA No. 301/2024, would stand ‘rejected’. Let the company appeal itself be listed for hearing at the admission stage on 17.01.2025.

Till the next date of hearing, the earlier ‘Interim Order’ if any, granted by this ‘Tribunal’, shall ‘Continue’.