TMI Blog2021 (7) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... performed under the I B Code and the Regulations. We accept the submission of the Learned ASG that the Liquidator was required to look into the Award of Adjudicator and look into the documents and come to the best estimate and give the benefit to the Appellant. The Liquidator is directed to take steps as mentioned in this judgment and process claim of the Appellant as other creditor and arrive at best estimate of the amount of claim made by the Appellant and give the necessary benefit to the Appellant - appeal disposed off. - Company Appeal (AT) (Insolvency) No. 309 of 2021 - - - Dated:- 19-7-2021 - [Justice A.I.S. Cheema] The Officiating Chairperson And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. Balbir Singh, Addl. Solicitor General of India, Mr. R. Sudhinder, Ms. Ekta Bhasin, Mr. Pierre Uppal, Advocates For the Respondents : Mohd. Azeem Khan for Liquidator JUDGMENT A.I.S. Cheema, J. 1. This Appeal has been filed by NTPC Limited against impugned order dated 2nd February, 2021 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata (Special Bench) in CA (IB)-1818/KB/2019 in C.P. (IB) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Adjudicator for the purpose of settlement of disputes. The said paragraphs read as under:- 6.1 Adjudicator 6.1.1. If any dispute of any kind whatsoever shall arise between the Employer and the Contractor in connection with or arising out of the Contract, including without prejudice to the generality of the foregoing, any question regarding its existence, validity of termination, or the execution of the Facilities- whether during the progress of the Facilities or after their completion and whether before or after the termination, abandonment or breach of the Contract- the parties shall seek to resolve any such dispute or difference by mutual consultation. If the parties fail to resolve such a dispute, then the dispute shall be referred in writing by either party to the Adjudicator, with a copy to the other party. 6.1.2. The Adjudicator shall give its decision in writing to both parties within twenty-eight (28) days of a dispute being referred to it if the Adjudicator has done so, and no notice of intention to commence arbitration has been given by either the Employer or the Contractor within fifty-six (56) days of such reference, the decision shall become final a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant calculated its claim, as under:- 3. Total amount of claim, including any interest as at liquidation commencement and details of nature of claim 1. The claim of NTPC Limited is the difference between the expenditure incurred/ to be incurred by NTPC Limited to complete the balance work of the Ash Handling Package Stage-I awarded to Corporate Debtor vide Contract No. CS-9558-162-2-FC-COA-4662 dated March 24, 2006 and Contract No. CS-9558-162-2-FC-COA-4663 dated March 24, 2006 (hereinafter referred to as the project ) and the expenditure NTPC Limited would have incurred had the Corporate Debtor completed the Project. 2. NTPC Limited has expended the following amount towards completion of the Project:- (a) ₹ 1,17,39,65,783.00/- towards additional contract for completion of the balance work of the Project awarded to Melco India Pvt. Ltd. Copies of Notification of Awards for supply and erection of Balance work of Ash Handling System Package for Barh Super thermal Power Project Stage- 1 (3X660 MW) along with summary of expenses incurred for completion of balance work are annexed herewith and colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appeal. In Para 3, the committee referred to the counter claim of ₹ 87.48 Cr. which Corporate Debtor made. In Para 4, it referred to the claim of the Appellant and then the recommendation of the Expert Committee (ESC) was recorded as under:- 5. Recommendation of ESC: The ESC held several rounds of discussions with the parties with a view to bridge the gap of divergence between the parties. Both the parties indicated that they were willing to review their respective claims, which considerably reduced the gap during the discussions. However, the gulf of divergence was so wide that it could not be totally bridged. Hence, ESC recommends closure of this case. The ESC takes this opportunity to thank Shri D Basu, MD, and Shri S K Kar ED of DCIPS and Shri J P Roy, AGM (Nodal Officer Barh) and Shri V D Verma, Manager of NTPC for their positive approach and cooperation extended during the ESC proceedings. 9. Thus, ESC also could not bridge the gap between the parties. Referring to this, the Liquidator sent an e-mail at Page 740 and observed that since the claim amount of Appellant has been subjected to dispute by the Corporate Debtor and the books of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was his duty to examine the claim as provided by Regulations and Regulation 25 to come at best estimate of the amount and give the benefit to the Appellant. 13. In para 13 of the impugned order, the Adjudicating Authority observed as under:- 13. As far as the classification of the claim under the category of Operational Creditor is concerned, I am of the opinion that the liquidator erred in not classifying the claim under the category of other creditors . This was not a case of Operational Debt within the meaning of Section 5(21) of the Code, since it did not arise out of supply of goods or services on the part of the Appellant. The supply of goods and services was on the part of the Corporate Debtor in favour of the Appellant, and not vice versa. Therefore, the Appellant could not have been classified as Operational Creditor within the meaning of Section 5(20) of the Code. The Liquidator ought to have classified the Appellant as Other Creditor in terms of Regulation 20 of the IBBI (Liquidation Process) Regulations, 2016. The Appeal is partly allowed to this extent. 14. It appears that the Adjudicating Authority missed the fact that the Appellant had filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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