(Dhananjaya Y. Chandrachud, C.J. and Pamidighantam Sri Narasimha and J.B. Pardiwala, JJ.)
A.K.C. Infrastructure Pvt. Ltd. Through Director __________ Appellant;
v.
Amrit Cement Limited Through Director _______________ Respondent.
Civil Appeal No. 912 of 2023, decided on March 3, 2023
The Order of the court was delivered by
Order
1. The appeal arises from a judgment dated 25 November 2022 of the National Company Law Appellate Tribunal1.
2. The appellant is an operational creditor. The appellant instituted a petition against the respondent under Section 9 of the Insolvency and Bankruptcy Code 2016.
3. The petition was dismissed on 19 January 2021 by the National Company Law Tribunal2 on the ground that the claim was barred by limitation since the default had occurred over three years prior to the filing of the petition under Section 9.
4. On 25 October 2019, the following interim order was passed by the NCLT during the pendency of the proceedings:
“9. Considering the facts of the case we are of the view that the ends of natural justice would be met if all the facts that could have a bearing on the issues before us, must be brought (sic) on record. For this purpose, and in exercise of the statutory powers conferred on the Adjudicating Authority under Rule 43 of the NCLT Rules 2016 and also under Section 424 of Companies Act 2013, for requiring the discovery and production of documents, it is deemed necessary to call for necessary documents from the CD, such as the Trial balance, Leger Accounts, other financial statements, and Balance Sheets for the period 2011-12 till 2017-18 for perusal of this Authority and getting a total picture. This is however, for the limited purpose of this IA, and no view is given on the main petition as contained in the CP (IB)/26/GB/2019.
10. In this scenario, the relief sought by the applicant in the present application is granted only to the above extent, and the CD is directed to produce for perusal of this Authority its Trial Balance, Ledger Accounts, other financial statements, and the Balance Sheet for the period 2011-12 till 2017-18, within three weeks from the date of this order.”
5. The order of the NCLT dated 25 October 2019 was upheld by the NCLAT on 25 November 2019.
6. According to the appellant, the order of the NCLT had not been complied with by the respondent. On the other hand, the respondent has submitted that, as a matter of fact, the order was complied with, an e-filing receipt was issued and the appellant had even sought inspection of the documents which were filed.
7. The appellant had filed two interlocutory applications before the NCLT, namely, IA No 11 of 2020 for production of documents and IA No 12 of 2020 for contempt of the orders of the adjudicating authority. According to the appellant, the IAs were taken up on 9 December 2020 and orders were reserved thereon.
8. The grievance of the appellant is that no order was passed by the newly constituted Bench on the IAs and the Company Petition was dismissed on the ground of delay without furnishing an adequate opportunity of hearing to the appellant.
9. It emerges from the record that while the adjudicating authority dismissed the company petition on the ground of limitation, the appellate authority has affirmed the judgment of the adjudicating authority primarily on the ground that there was a pre-existing dispute and on limitation.
10. From the narration of the facts which have been set out above, it appears to this Court that the appellant has a serious grievance on whether the order of the adjudicating authority for the production of documents was complied with. Production of documents was sought to establish that there was an acknowledgment of debt.
11. The impugned order of the NCLAT has not entered any finding of fact on whether there was compliance of the order for production of documents. Though it was urged by the respondent that the order for production of documents had been complied with, we do not find any expression or opinion on finding by the NCLAT on this aspect of the matter.
12. Consequently and without this Court expressing any opinion on the rival contentions on merits, we are of the considered view that it would be appropriate to set aside the impugned order dated 25 November 2022 of the NCLAT in Company Appeal (AT) (Insolvency) No 246 of 2021 and to restore the appeal for disposal afresh.
13. We clarify that all the rights and contentions of the parties are kept open for adjudication of the appeal on remand.
14. The appeal is accordingly disposed of.
15. Pending applications, if any, stand disposed of.
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1 “NCLAT”
2 “NCLT”
