M.R.A. Associates India Private ... vs Nextgen Procon Private Limited

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(INS) NO.267 OF 2021 In the matter of: MRA Associates India Pvt Ltd Appellant Vs Nextgen Procon Pvt Ltd Through Liqjuidator Mr. Rajesh Panayanhatta

For Appellant: Mr. Saurabh Kalia, Mr. Siddharth Tandon, Advocates. For Respondent: Mr. Apit Dwivedi, Advocate.

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 2

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 3

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. 4

"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"

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"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 5

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 6

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.

(Justice Rakesh Kumar) Member (Judicial)

(Dr. Ashok Kumar Mishra) Member (Technical) Bm/gc