TMI Blog2021 (1) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 itself would establish that they treated the petitioner-company as a separate entity and not along with the other two companies. The first respondent having partly complied with the memorandum of settlement dated May 24, 2018 now they cannot take a different stand and contend that since the other two companies are liable to pay the amounts to the first respondent, the petitioner-company is not entitled to claim the amount as per the memorandum of settlement dated May 24, 2018. After deducting the sum of ₹ 135,00,00,000 paid by the first respondent to the petitioner from the total sum of ₹ 208,85,00,000 the balance payable by the first respondent is ₹ 73,85,00,000. Therefore, the first respondent is liable to pay the balance sum of ₹ 73,85,00,000 to the petitioner - the first respondent is directed to pay the balance sum of ₹ 73,85,00,000 to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. The writ petition is partly allowed. - W. P. No. 23856 of 2018 and W. M. P. No. 27811 of 2018. - - - Dated:- 5-1-2021 - M. DURAISWAMY J. P. Chidambaram , Senior Counsel, for Anirudh Krishnan for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) According to the petitioner, the first respondent made frivolous deductions citing frivolous reasons in a desperate attempt to stall and not pay the legitimate amounts to the petitioner. Since there was unilateral and frivolous deductions by the first respondent, the petitioner filed a writ petition in W. P. No. 34238 of 2016 to issue a writ of certiorarified mandamus to call for the records pertaining to the letter dated February 13, 2015 and the consequential letter dated May 24, 2015 and consequently to direct the first respondent from deducting any amount from the duly certified purchase bills submitted by the petitioner. In the miscellaneous petitions in W. M. P. Nos. 29558 to 29560 of 2016 filed in the said writ petition, by the order dated June 29, 2016 this court directed the respondent not to deny the payment of ₹ 48,00,00,000 to the petitioner. In spite of the said order, the first respondent did not release the said amount. Consequently, con tempt petitions in Contempt Petition Nos. 808 and 809 of 2016 were filed by the petitioner and by order dated April 26, 2017 statutory notices were issued to the officials of the first respondent. Pursuant to the same, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal sum of ₹ 208,85,00,000 to the petitioner. In the said total sum, on May 29, 2018 the first respondent released a sum of ₹ 40,00,00,000 to the petitioner and the same was also recorded in the compromise order. After deducting this ₹ 40,00,00,000 from the total sum of ₹ 208,85,00,000 the balance payable by the first respondent is ₹ 168,85,00,000. (viii) Further, the petitioner has stated that a total of 17 suits were filed against the petitioner's group companies-Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd., in which one of the trade creditor filed an application to injunct the first respondent from paying any of the group companies of Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd. In the said applications, this court, by the order dated June 8, 2018 observed that permission of the court has to be sought only with respect to the defendant or anybody acting on behalf of the defend ant. According to the petitioner, the defendant in the suits are Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd. Further, the peti tioner has specifically stated that they were not a defendant in any of the suits, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. That apart, they have also stated that a sum of ₹ 25,00,00,000 was paid on February 11, 2019 and another sum of ₹ 25,00,00,000 was paid on November 11, 2019 to the petitioner. The first respondent has also stated that various proceedings pending as against M/s. Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd., where dues are recoverable by TANGEDCO, necessary notices have been issued to them in that regard and without a complete reconciliation of accounts and consequential crystallization of a definite amount, the dues payable by all the three group companies should be calculated. In such circumstances, the petitioner is not entitled to maintain the writ petition seeking for payment of ₹ 168,85,00,000. (ii) The first respondent has also stated that as per the minutes of the meeting dated May 24, 2018 the petitioner should withdraw all the pend ing proceedings before different courts prior to the payment of ₹ 208,85,00,000. Further, the first respondent has stated that the petitioner has not withdrawn the pending proceedings so far. It has been fur ther stated that the petitioner's two group companies M/s. Ind Barath Thermal Power L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior counsel further submitted that the first respondent having made payments of ₹ 40,00,00,000 on May 29, 2018, ₹ 45,00,00,000 on September 26, 2018, ₹ 25,00,00,000 on February 11, 2019 and another sum of ₹ 25,00,00,000 on November 11, 2019 to the petitioner pursuant to the minutes of the meeting dated May 24, 2018 and the order passed by the National Company Law Appellate Tribunal dated May 29, 2018 they cannot now take a stand that Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd., and the petitioner-company should be treated as one and in view of the payments to be recovered from the other two group companies, the first respondent is not liable to make the payments to the petitioner. Learned senior counsel submitted that after deducting the payments made by the first respondent, they are liable to pay the balance amount of ₹ 73,85,00,000 to the petitioner. 6. Mr. Vijay Narayan, learned Advocate General appearing for the first respondent submitted that the petitioner-company is part of Ind Barath Group Companies and they should be treated as one entity. The learned Advocate General further submitted that the first respondent is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance/TG 3. Thiru. K. Sundaravadhanam, CFC/General 4. Thiru. Narayanan, CE/PPP 5. Thiru. S. Thirunavukkarasu, SE/Power Purchase 6. Tmy. S. Savitha, FC/General 7. Thiru. S. Doraisamy, SE/OA and CO Company representatives 1. Mr. Raghu, Chairman 2. Mr. Bharath, Vice-Chairman 3. Mr. M. N. V. Sudhakar, President (Adm. Com) 4. Mr. T. S. Das, Vice-President 5. Mr. M. Kamaraj, Vice-President With reference to the hon'ble National Company Law Appellate Tribunal's order dated May 10, 2018 which was posted on its website on May 14, 2018 and in continuation of the previous meetings held on April 13, 2018, April 30, 2018, May 7, 2018 and May 15, 2018 TANGEDCO and appellant-companies had discussions on the vari ous issues under dispute, particularly the statement of accounts and the accounting of energy as per the PPA, during the period from May 18, 2018 to May 23, 2018. Based on this, a reconciliation meeting was called on May 24, 2018. (2) TANGEDCO read out the details of the claims and admissions for the period from October, 2015 to May, 2016 in respect of all the three appellant-companies of the Ind Barath group. The amounts covered under vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpound interest' to 'simple interest'. Ind Barath, however, did not concur to a 50 per cent. waiver of interest, as requested by TANGEDCO. Thus, the total interest payable as per TANGEDCO's workings in respect of the three appellant-companies provisionally works out to about ₹ 281 crores (₹ 235.78 crores + ₹ 45.61* crores), however, according to the appellant-companies, the total sum is working out to ₹ 312.25 crores approximately (₹ 266.64 crores + ₹ 45.61 crores) as per the agreed methodology of interest calculation and the same has to be reconciled at the earliest. (7) TANGEDCO has already deposited in the hon'ble High Court of Madras an amount of ₹ 75 crores in various civil suits involving the above two companies, namely, M/s. Ind Barath Thermal Power Ltd., and M/s. Ind Barath Powergencom Ltd., in favour of the Registrar General, the hon'ble High Court of Madras. Considering this, the overall balance amount payable by TANGEDCO provisionally works out to about ₹ 229 crores (23 + 281-75) as detailed below : Sl. No. Description Ind Barath Group Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed upon between TANGEDCO and Ind Barath that in lieu of the above payment, the release of which is subject to orders of the hon'ble High Court of Madras and other courts, all the cases filed by the appellate-companies against TANGEDCO and pending before the hon'ble High Court of Madras, hon'ble National Company Law Appellate Tribunal, civil courts and any other forum, shall be withdrawn by them. Without prejudice to the contentions of TANGEDCO, the final amount so arrived after reconciliation between the parties will not attract any interest, simple or compound, from the date of crystallization of the total amount payable by TANGEDCO to the appellant-companies. The amount so crystallized may be paid by TANGEDCO in instalments at mutually agreed terms at the earliest. (10) Both TANGEDCO and Ind Barath reiterated that all efforts will be made to settle other outstanding issues, such as excess payment of power purchase bills pointed out by audit and in case the same are not resolved amicably, to approach the appropriate authority for dispute resolution, viz., the hon'ble TNERC. It was also agreed that both parties will be open to discussing all issues in good fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable by TANGEDCO to the appellant-companies. 9. It is pertinent to note that on May 29, 2018 when the National Company Law Appellate Tribunal disposed of the appeals, learned senior counsel appearing on behalf of the first respondent-TANGEDCO submitted that in view of the terms and conditions of the agreement dated May 24, 2018 the appellants, viz., Arkay Energy (Rameswarm) Ltd., Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd., are required to withdraw the appeal and he also handed over an account payee cheque dated May 28, 2018 for ₹ 40,00,00,000 issued in the name of Arkay Energy (Rameswarm) Ltd. (the petitioner herein) drawn on State Bank of India, Commercial Branch, Chennai, to learned counsel for the appellant for onward transmission to the appellant. 10. Therefore, subsequent to this payment, this court in W. M. P. No. 27811 of 2018 in the present writ petition, by the order dated May 19, 2018 directed the first respondent to release a sum of ₹ 45,00,00,000 to the petitioner. Pursuant to the said order, the first respondent paid the said amount on September 26, 2018 to the petitioner and complied with the orders of this court. Thereafter, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter 5. W. P. No. 25357 of 2010 The petitioner has been arrayed as respondent in the said matter 6. W. P. No. 25245 of 2010 The petitioner has been arrayed as respondent in the said matter 7. W. P. No. 25248 of 2010 The petitioner has been arrayed as respondent in the said matter 8. W. P. No. 30037 of 2010 The petitioner has been arrayed as respondent in the said matter 9. W. P. No. 25247 of 2010 The petitioner has been arrayed as respondent in the said matter 10. W. P. No. 11194 of 2017 28-2-2019 11. W. P. (MD) No. 8765 of 2015 9-1-2019 12. W. P. (MD) No. 13895 of 2015 21-12-2018 13. W. P. No. 38082 of 2016 25-9-2019 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above were made only after May 24, 2018 (i. e.) the date on which the memorandum of settlement was entered into between the petitioner and the first respondent. The very conduct of the first respondent in partly complying with the terms of the settlement dated May 24, 2018 itself would establish that the first respondent had treated the petitioner as a separate entity and did not treat the petitioner-company along with the other two group companies. In these circumstances, the contentions of the first respondent are liable to be rejected. Accordingly, the same are rejected. 12. After deducting the sum of ₹ 135,00,00,000 paid by the first respondent to the petitioner from the total sum of ₹ 208,85,00,000 the balance payable by the first respondent is ₹ 73,85,00,000. Therefore, the first respondent is liable to pay the balance sum of ₹ 73,85,00,000 to the petitioner. 13. For the reasons stated above, the first respondent is directed to pay the balance sum of ₹ 73,85,00,000 to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. 14. With these observations, the writ petition is partly allowed. No costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
