Vettathu Nadu Rehabilitation Centre ... vs Dr. Hyderali Kalliyath

2. C.M. Mohammed, Door No. IX / 81, Chundanveettil House, Vettom P.O., Tirur, Malappuram, Kerala - 676102 .... Appellants

V

1. Dr. Hyderali Kalliyath, S/o. Khalid Haji, Aged 60 years, Kalliyathu House, Niramaruthur P.O. Tirur, Malappuram, Kerala - 676 109

2. Dr. Mini Hyderali, D/o. Abdurahman, Aged 57 years, Padiyath House, Bunaya, Niramaruthur P.O., Tirur, Malappuram, Kerala - 676109

3. Mohammed Shafi Aged 64 years, S/o. Bappu Haji, Kappattakath Thekkumpurath, Tirur, Malappuram, Kerala - 676109

Comp. App (AT) (CH) No. 33 / 2025 Page 1 of 6 4. Shamsudheen, S/o. Moideen, Aged 52 years, Perumalparambil, Kodakkad, Vettom, Tirur, Malappuram, Kerala - 676102

5. K.O. Hyderali, S/o. Saidalikutty, Aged 50 years, Kappattakkathu Ottayil House, Vakkad P.O., Tirur, Malappuram, Kerala - 676502

6. K.T.O. Abdulla, S/o. Kammu, Aged 75 years, KTOS, Kanur, Vakkad P.O., Tirur, Malappuram, Kerala - 676502

7. P.M. Mohammed Iqbal, S/o. Muhammed, Aged 65 years, Palakkavalapil Matappalliyil House, Vettom P.O., Tirur, Malappuram, Kerala - 676102

8. K.T.O. Muhammed Kutty, S/o. Kammu, Aged 65 years, Kalathil House, Vettom P.O., Tirur, Malappuram, Kerala - 676102 .... Respondents

Present: For Appellants : Mr. Sukumar Nainan Oommen, Senior Advocate Ms. Sneha Mariya James, Advocate For Respondents : Ms. C.S. Sreepriya Kalarikkal, Advocate for R1 & R2 Mr. Akhil Suresh, Advocate for R3 to R8

Comp. App (AT) (CH) No. 33 / 2025 Page 2 of 6 ORDER

(Hybrid Mode) 28.03.2025:

Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):

1. A proceedings by way of a Company Petition, being CP (C / ACT) / 28 / KOB / 2023 stood instituted before the Learned NCLT, Kochi Bench.

2. The proceedings of the aforesaid Company Petition has reached to a very advance stage after the exchange of pleadings, which stood completed as back as on 17.04.2024.

3. Ultimately, when the matter was directed to be heard on merits, it is at that belated stage, that an IA (C/ACT) / 175 / KOB / 2024, was preferred by the Appellant praying for taking certain additional documents on record for the purposes of being considered for deciding the Company Petition on its merits.

4. Its these documents, which had been taken on record by passing a cryptic and a non-reasoned order observing thereof only that, the parties are directed to produce all the documents as sought for and filed a compliance memo to that effect within two weeks from today.

5. The Judicial propriety demands that, in a proceedings, which has reached to a final stage which decides vital rights of the parties, even though there is no absolute procedural bar that a new document cannot be introduced to the proceedings, introduction of a new document has to be done subject to certain restrictions and compliance of the procedural provisions for taking documents on record and particularly when the same is objected to by the opposite party. In the instant case, when the Application i.e. IA (C/ACT) / 175 / KOB / 2024, was preferred, the same was specifically objected by the Respondent / Appellant herein, raising a written objection, contending that as to whether these documents

Comp. App (AT) (CH) No. 33 / 2025 Page 3 of 6 were at all necessary for the purposes of deciding the controversy, to be taken on record at an advanced stage of the proceedings of the Company Petition, to be considered for deciding the Company Petition itself, on merits.

6. The Appellant has come up with a case that, apart from the fact that, he has filed an objection at the stage when the IA (C/ACT) / 175 / KOB / 2024, was being considered, he was even denied of the opportunity to be heard, on his objection while the Application preferred by the Respondent, praying for taking the documents on record was being considered. The following grounds have been pleaded by the Appellant, while challenging the Impugned Order:

``It passed orders on IA/135/KOB/2024 and IA/175/KOB/2024 without considering the replies of the Appellants to these IAs and furthermore, without affording the Appellants with an opportunity to be heard. The Order purported to have been passed on 10.01.2025 was uploaded by the Registry only on 31.01.2025. The Order is tainted with arbitrariness and bias.''

7. Even otherwise also, if the documents were at all required to be taken on record and if at all, they were necessary to be considered for adjudication of a lis on merits, particularly at a matured stage of the proceedings when it is being objected by the opposite party to the proceedings, it would have been proper for the Tribunal to deal with the objection first and then to record its reasoning of the necessity of the documents to be brought on record, failing which, the Order being passed will amount to Audi Altarem Partem:-

``2. In this case, parties are directed to produce all the documents as sought for and file a compliance memo to that effect within two weeks.

3. With the above directions, this application is allowed and disposed of.''

8. In the absence of there being any reasoning assigned in the order, passing of an Order, for taking the documents on record in this manner is, in itself,

Comp. App (AT) (CH) No. 33 / 2025 Page 4 of 6 de hors the Judicial propriety. More particularly, what is more agonising is, that when the Appellant has come up with a case that on the date when the Application was being considered, his counsel who was appearing before the Ld. Tribunal too, was even declined to be heard. This process of not to hear the counsel, being unknown to law, is deprecated by this Appellate Tribunal. The least the Ld. Tribunal could have done is to give an opportunity of hearing to the Appellant, while considering the Application and the Order should not have been passed in an arbitrary manner, by denying the opposite side of the right of being heard, who has already opposed the Application by filing an objection.

9. There are other factors pertaining to the Judicial propriety and the procedure adopted by the Tribunal in the instant case, which has been brought to the notice of this Appellate Tribunal. But, for the time being we are overlooking those aspects to record any findings as such would be casting an aspersion on the Judicial system itself. Exclusively, because of the fact that, the Appellant was deprived of his right to be heard on the objection preferred by him as against the Interlocutory Application and that such objection has not been considered nor any reason has been assigned in the Impugned Order for taking the documents on record, we quash the Order for taking the documents on record, we quash the Order dated 10.01.2025 and remit the matter back to the Learned NCLT, Kochi Bench, with a request to reconsider the Application i.e. IA (C/ACT) / 175 / KOB / 2024 as preferred in CP (C / ACT) / 28 / KOB / 2023, and to pass orders only after providing an effective hearing to the counsel for the parties and after considering the objection raised by the Appellant herein as against the Application preferred by the Respondent for taking the additional documents on record.

10. Subject to the above, the Company Appeal (AT) (CH) No. 33 / 2025, would stand allowed and the Impugned Order would stand quashed.

Comp. App (AT) (CH) No. 33 / 2025 Page 5 of 6 11. All pending Interlocutory Applications, if any, will stand closed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical) SR/MS

Comp. App (AT) (CH) No. 33 / 2025 Page 6 of 6