M/S WIZAMAN IMPEX PVT. LTD. versus KEDRION BIOPHARMA INC.

Citation: [2022] 2 S.C.R. 120 · Decided: 07-02-2022 · Supreme Court of India · Bench: DINESH MAHESHWARI · Disposal: Case Partly allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 2 S.C.R.
[2022] 2 S.C.R. 120
120
M/S WIZAMAN IMPEX PVT. LTD.
v.
KEDRION BIOPHARMA INC.
(Civil Appeal No. 466 of 2022)
FEBRUARY 7, 2022
[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
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 respondent-
applicant 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.
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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-C-
E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 466 of
2022.
From the Judgment and Order dated 15.12.2021 of the National
Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
(Insolvency) No.981 of 2020.
Jayant K. Mehta, Sr. Adv., A. T. Patra, Karan Khaitan, Aditya
Ghadge, Ms. Bina Gupta, Advs. for the Appellant.
Nakul Dewan, Sr. Adv., Ms. Suruchi Suri, Simran Jot Singh,
Chanchal Kumar Ganguli, Advs. for the Respondent.
M/S WIZAMAN IMPEX PVT. LTD. v.  KEDRION BIOPHARMA INC.
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SUPREME COURT REPORTS
[2022] 2 S.C.R.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
1. Having regard to the short point involved and the contesting
parties being represented, we have heard learned counsel for the parties
finally at this stage itself.
2. By way of this appeal, the appellant-company, said to be the
corporate debtor within the meaning of the Insolvency and Bankruptcy
C

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