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TMI Blog2019 (12) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 14 invoices wherein the outstanding amounts remained unpaid is enclosed along with the petition. The supply of power commenced in the year 2016 and it was agreed as per the terms of the agreement that the petitioner will raise the invoice on the corporate debtor after adjustments of units and the consumers (end customers), electricity bill of Discom facilitator (grid) and only to the extent of units adjusted in the consumer bills. Accordingly, the corporate debtor would make payments to the petitioner within 10 days from the receipt of the invoice. 3. The petitioner has generated and supplied power to end customer through the grid settlement report. The said reports are generated by the grid are available, duly signed of by the purchaser (end customer), seller (petitioner) and AP Transco/TS Transco Grid. The settlement reports are annexed to the petition and constitute adequate proof of supply of power under the contract. However, despite supply of power duly supported by signed settlement reports, the corporate debtor has defaulted in making payment of outstanding dues under the invoices amounting to Rs. 3,92,29,844 the power purchase agreement also envisages levy of interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l affidavit and categorically stated that the entire mechanism of renewable energy is undertaken on the principals of banking of energy prevailing in the state, where the solar power generated gets injected in the grid of Discom, they spontaneously utilise the injected units for its own consumer base. There is a definitive arrangement of transfer of power by generators to Discoms and end consumer and payment of the monies for consumed energy through grid settlement report generated and GSN issued. 8. The corporate debtor further averred that the contractual arrangements between the parties did not allowed transfer of title of the GSNs in favour of corporate debtor. During the entire cycle of events culminating in to the end consumers for the units injected into the grid by the generator, there was no role of corporate debtor in the capacity of the trader. Since adjustment and creditors and issuance of GSN was happening inter se between three parties, i. e., generator, the relevant distributor licensee and the end consumer. The corporate debtor was nowhere party to the same nor was a privy to the unit's adjustments happening amongst the parties. The corporate debtor further rei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which means that for the electricity supplied before the said date, the revised rates will have no relevance. In view of that Invoice Nos. 10027, 10028, 10029 and 10043, dated January 7, 2016, January 7, 2016, January 7, 2016 and January 18, 2017 respectively which is prior to February 13, 2016 and therefore the revised price of Rs. 3.70 per unit cannot be applied to these invoices as such an amount of Rs. 1,08,77,104 is outstanding. These amounts exceeding Rs. 1 lakh payable by the petitioner to the corporate debtor, the petition filed by the petitioner under section 9 of the IBC, 2016 merits admission. 11. The energy settlement statement issued by the transmission corporation of Andhra Pradesh Ltd., makes a very clear distinction between the banked units and the other normal units. The petitioner reiterated that the out- standing invoices which are subject-matter of the petition pertains to the category of other units and do not fall under the category of banked units. Therefore, the reduced price of Rs. 3.70 per unit cannot be applied for such other units. 12. Heard the arguments, the issue between the parties is whether there is any distinction drawn between other normal uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows : Schedule-A Sl. No. Period Rs. KWH 1. November 1, 2014 to June 30, 2015 5.30 2. July 1, 2015 to December 31, 2016 5 16. All the above agreements and addendums do not talk about two different units of rates/tariffs as agreed between the parties. The petitioner for the first time vide its e-mail on December 13, 2016 confirmed the price for banked energy as follow : "From : Naveen (mail to : [email protected]) Sent : Tuesday, December 13, 2016 6:25 p.m. To : Siva Ram Kumar Cc : Benarjee tsp Subject : Re : Confirmation for Banked energy price Ok Sir, Thanks Naveen. M On Tue, Dec 13, 2016 at 6:21 p.m., Siva Ram Kumar ‹ [email protected]\›wrote : Hello Naveen, As discussed, for banked units price at 3.70 per unit. With Regards, Siva Ram Kumar." In view of the above mail, it can be said that there was an agreement regarding applicability of price for banked units at 3.70 per unit. 17. Further, upon perusal of the agreed terms of the power purchase agreement, it is clear that the electricity generated by the petitioner through its solar power plant could be injected into the electricity grid maintained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the definitive arrangements and with the obligation to pay the said amounts within the stipulated agreed time. The liability of the corporate debtor cannot be absolved under the premise that they are liable to pay only at 3.70 per unit basing on the distinction drawn between the banked units and the other/normal units. 20. M. A. No. 3120 of 2019 in C. P. No. 2520 of 2019 was filed by the manager administration of the corporate debtor seeking to intervene and implead as a party in the above matter cannot be entertained and is thus, dismissed on the ground that this is an application filed by the petitioner in the capacity of operational creditor under section 9 of the IBC, 2016 as he has not received the payment of the outstanding dues under unpaid invoices raised by the operational creditor under the terms and conditions of the solar power purchase agreement and addendums thereto. Therefore, neither an intervenor be impleaded as party nor can he be allowed to be heard in an application under section 9 of the IBC, 2016. The Legislature has envisaged the recourse of workmen/employees during the resolution process. 21. This Adjudicating Authority, on perusal of the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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