Insolvency and Bankruptcy Code, 2016 – s.9 – Corporate Insolvency Resolution – Respondent filed s.9 application against appellant-corporate debtor – National Company Law Tribunal (‘NCLT’) considered the documents referred by the respondent in support of its contention that there had been acknowledgment of debt and thereby the period of limitation would shift from the date of acknowledgement – However, NCLT rejected the s.9 application by noting that, viewed from any angle, the application filed by the respondent was beyond the limitation period of three years – In appeal before National Company Law Appellate Tribunal (‘NCLAT’), respondent sought permission to produce exchanges of e-mails with respect to the propositions for settlement of dues – The said documents were not on record before the NCLT – Appellate Tribunal granted permission to respondent to place such additional documents on record – All suggestions, admissions and offers evidenced by said e-mails were taken by NCLAT as acknowledgement by the corporate debtor within time and therefore, the order of the NCLT rejecting s.9 application was set aside – Held: The impugned order of NCLAT allowing the appeal and even admitting the s.9 application cannot be sustained on a short point that the said additional documents were taken on record only while finally deciding the appeal and without adequate opportunity of response to the corporate debtor – However, at the same time, due consideration of the said documents also appears requisite and the documents i.e., the said e-mails, cannot be removed out of consideration only because they were not on record before NCLT – NCLT directed to re-consider the s.9 application filed by respondentapplicant while taking into consideration the additional documents taken on the record and at the same time, while extending adequate opportunity of hearing to the corporate debtor. Partly allowing the appeal, the Court
HELD: 1. The impugned order allowing the appeal and even admitting the application under Section 9 of the Insolvency and Bankruptcy Code, 2016 cannot be sustained on a short point that the said additional documents were taken on record only while finally deciding the appeal and without adequate opportunity of response to the corporate debtor. However, at the same time, due consideration of the said documents also appears requisite and the documents i.e., the said e-mails, cannot be removed out of consideration only because they were not on record before NCLT. [Para 7][124-B-C]
2. The appropriate course in this matter would be to set aside the impugned order passed by NCLAT to the extent it has allowed the application under Section 9 of the Code filed by the applicant-respondent but while retaining the other part of the impugned order taking the documents filed on record. After taking the said documents on record, for the appropriate process of adjudication in the matter, it is also considered just and proper that the order dated 06.10.2020 passed by NCLT be also set aside and the NCLT be directed to re-consider the application under Section 9 of the Code as filed by the applicant-respondent while taking into consideration the additional documents now taken on record and at the same time, while extending an adequate opportunity of hearing to the corporate debtor. [Para 8][124-CE]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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