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2022 (7) TMI 355 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCHValidity and admission of claim - seeking admission of claim which was rejected by the Resolution Professional stating that the said quantum of claim relates to future liabilities under GSA which is not duly performed and as such not being covered under the definition of “claim” - Section 3 (6) of IBC - HELD THAT:- Article 2.4 of the GSAs states that the gas sold by the Applicant to the Corporate Debtor shall be tendered to the Corporate Debtor at delivery point, i.e., pipeline connecting the gas transporter’s facilities to the Corporate Debtor’s plant (hereinafter referred to as “Delivery Point”). Further, the Article states that the Applicant shall be responsible for the title to and risk of such loss of gas up to the Delivery Point, and delivery of gas under the GSA will be deemed completed at the Delivery Point and the title and risk of loss of such gas shall pass from the Applicant to the Corporate Debtor at Delivery Point. Therefore, the title of the gas supplied gets transferred to the Corporate Debtor only when the gas reaches the Delivery Point thereby constituting a ‘triggering event’ for accrual of right to payment. The triggering event for accrual of right to payment is bolstered by the construction of other terms of the GSAs. Under Article 3.1 of the GSAs it is obligatory for the Corporate Debtor to purchase, receive and take the gas at the Delivery Point, and pay for gas at prices determined in accordance with the GSA or pay amounts in respect of TOP Liability in the event the Corporate Debtor fails to receive and take such gas that is supplied in accordance with the Annual Contracted Quantity (ACQ) decided between the Applicant and the Corporate Debtor in terms of Article 6.1 of the GSAs. It cannot be, that the Applicant has generated Annual Statement and claim letter towards the amounts arising till the end of the entire tenure of the GSAs (i.e., 2028 and 2037). In absence of such Annual Statements, the Applicant has itself stated in the computation table annexed as Annexure F to the Application that the claim letter date mentioned in the table is simply a “tentative date of issuing claim letter”. At the threshold, the amount does not qualify as a claim as there is no basis for claiming such hypothetical amounts which may or may not be payable at a future date by the Corporate Debtor - Notably, the triggering event for accrual of right to payment in respect of TOP Liability it yet to happen at a later point in time, when the gas will be supplied to the Corporate Debtor in the future, i.e., after commencement of CIRP. Therefore, the amount claimed in respect of TOP Liability does not qualify as a ‘claim’ in terms of the definition of ‘claim’ under the Code. The conclusion can be drawn from the submissions and the agreement that the TOP liability is calculated annually, the Obligation for TOP liability arises when Annual Contract Quantity is not lifted. The cause of action or triggering point for TOP liability is at the end of every Contract Year during which breach of contract occurred. A suit can be filed wherein TOP liability is required to be ascertained because the said liability cannot be allowed arbitrarily, as TOP liability is calculated annually upon non-lifting of the Annual Contract Quantity. Hence, the TOP liability claimed in the present case is for whole tenure of the contract for which obligation has not arose as the same is not accrued at this point of time. In the present matter, claims made as TOP liability are not accrued yet. Therefore, TOP obligation for entire contract tenure for 3 GSAs total amounting to Rs. 9942,40,44,928/- Crores cannot be admitted. Application allowed in part.
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