TMI Blog2022 (3) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... documents i.e., the said e-mails, cannot be removed out of consideration only because they were not on record before NCLT. 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. In any case, in the present matter, the impugned order was passed on 15.12.2021 and admittedly, no other steps had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal or the NCLAT .) has set aside the order dated 06.10.2020, as passed by the National Company Law Tribunal, New Delhi Bench- V (Hereinafter also referred to as the Adjudicating Authority or the NCLT .) in CP(IB) 841(ND) of 2020 and has also allowed the application moved by the applicant (respondent herein) under Section 9 of the Code. The said application under Section 9 of the Code was filed by the applicant-respondent on 30.06.2020, in its capacity as an operational creditor of the corporate debtor while claiming, inter alia , that there had been a distribution agreement whereby, the corporate debtor was to sell the pharmaceutical products of the applicant company only until its subsidiary by the name Kedrion India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany and addressed to the Bank regarding payment of pending invoices, the NCLT observed that even if the said letter was treated as an acknowledgment of debt, the limitation would run from its date, i.e., 07.07.2016. The NCLT further considered another letter dated 02.02.2017 and observed that even if the said document was taken as an acknowledgement of debt, the limitation would run from 02.02.2017. Hence, the NCLT came to the conclusion that, viewed from any angle, the application filed on 30.06.2020 was beyond the period of three years in terms of Article 137 of the Limitation Act, 1963. Thus, the NCLT proceeded to reject the application so made by the respondent. It appears from the perusal of the record that the applicant-responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. For what has been discussed and observed hereinabove, in our view, the appropriate course in this matter would be to set aside the impugned order dated 15.12.2021 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the respondent. Accordingly, this appeal is allowed to the extent and in the manner indicated hereinabove. The application under Section 9 of the Code in CP(IB) 841(ND) of 2020 stands restored for reconsideration by the Adjudicating Authority keeping in view the observations and requirements foregoing. It goes without saying that we have not pronounced on the merits of the case either way and not even on the evidentiary value and effect of the documents in question. All the aspects are left open for examination by the Adjudicating Authority in accordance with law. Having regard to the circumstances of the case and the fact that the application under Section 9 of the Code was filed way back on 30.06.2020, we would expect t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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