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2022 (4) TMI 432 - AT - Insolvency and BankruptcyEssential items during Moratorium period - Supply of water by KWIPL - water is required for enabling generation of electricity to be sold by KMPCL to generate revenue and make profits - essential goods and services or not - HELD THAT:- From the agreement it is clear that the KWIPL under took to supply water to KMPCL and the terms are governed in the Articles. Article 2 deal with Water Transportation and Article 5 deal with quantity of Water - the Water Transport Agreement (2014) was amended on 01.03.2015 (Amended Agreement) and as per the Amended Agreement the minimum and maximum quantity of Water to be transported was revised for the initial period of two years. Further, it is stated that the amendment agreement included a review process for considering prolonging of the amendments. The Amended Agreement was based upon certain developments taken place subsequent to 2014 Agreement and according to the parties the same have impacted the project’s its functioning which required the said amendments. The parties to the 2014 Agreement are the same to the Amendment Agreement. The sequence of events that led to file the application before the Adjudicating Authority is that the letter addressed by the Respondent No. 1 dated 31.03.2017 supra to the Appellant after taking over as IRP and invoice dated 17.05.2021 for the month of April, 2021 and the Appellant replied to the said letter on 25.05.2021 and also various correspondences took place between the Appellant and the first Respondent. The first Respondent vide letter dated 31.05.2021 intimated the Appellant that the water supply from KWIPL shall stand suspended from 01.06.2021 due to non-payment of invoice dated 17.05.2021 and absence of an O & M Contract. Reference to Section 62 of Indian Contract Act, 1872 - HELD THAT:- The requisites of a novation are a previous valid obligation, an agreement of all the parties to a new contract, the extinguishment of the old obligation, and the validity of the new one - It is not in dispute that the KMPCL is into CIRP vide order dated 03.10.2019 and the KWIPL is into CIRP, vide order dated 01.01.2021 and imposed moratorium in respect of both the Corporate Debtors. In respect of both KWIPL the first Respondent was appointed as RP vide order dated 08.04.2021. While so after taking over the affairs of the Corporate Debtor i.e. KWIPL the first Respondent vide letter dated 23.04.2021 addressed to the KMPCL requesting for payment of outstanding dues with reference to water transported to KMPCL and also made a note with regard to the water transport agreement and amended agreement. Applicability of Section 14(2A) of the I & B Code, 2016 - HELD THAT:- The Law is very clear on the aspect and cannot be interpreted to suit either to the Appellants or the Respondents. However, we are unable to accept the contentions of the Learned Counsel for the Appellants that “such supply” meaning thereby the quantity mentioned in the amended agreement dated 01.03.2015. As per the definition of Black’s Law Dictionary Sixth Addition, the word ‘such’ defined as “of that kind, having particular quality or character specified”. “Identical with, being the same as what has been mentioned”. Be that as it may, this Tribunal cannot interpret “such supply to actual supply” in view of clear and unambiguous provision as enshrined in Section 14 (2A) of I & B Code - Once the CoC has exercised its commercial wisdom it is neither open to the Appellant nor the Respondent no.1 to alter the terms contrary to such ratification under Section 28 (1) (f). In catena of decisions of the Hon’ble Supreme Court held that the commercial wisdom of CoC cannot be interfered with. Admittedly the parties have entered into a WTA dated 14.03.2014 and Amendment Agreement dated 01.03.2015 whereby certain amendments made to Articles by incorporating Article 5.1 a and Article 5.2 a to the original Agreement. However, there is a dispute with regard to substitution to the original agreement by way of amendment agreement and the amendment agreement only subsists - this Tribunal is not expected to function as original and Appellate Jurisdiction to decide and adjudicate upon the disputes pertaining to the contractual obligations. This Tribunal comes to an irresistible and inescapable conclusion that the view taken by the Adjudicating Authority with regard to passing of the order is free from any legal and factual error and therefore, does not warrant any interference - This Tribunal comes to a resultant conclusion that the Appellants have not made out any case to be interfered with accordingly both the Appeals stand dismissed.
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