TMI Blog2021 (9) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... ment without interruption to keep both the Respondent as well as the Applicant as going concerns. It is also made clear that this Adjudicating Authority is not dwelling into the dispute regarding alleged exorbitant pricing as the same is arising out of the Agreement entered into between both the parties prior to CIRP. Application disposed off. - Miscellaneous Application No. 425 of 2021 in Company Petition No. 187/7/HDB/2020 - - - Dated:- 24-9-2021 - M.B. Gosavi, Member (J) and Dr. Binod Kumar Sinha, Member (T) For Appellant: Y. Suryanarayana, Advocate For Respondents: Allwin Godwin and Krishna C.V. Grandhi, Advocates ORDER 1. The instant Application is filed by the Applicant herein under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 seeking the following reliefs: i. Direct the Respondent No. 1 to pay the Invoices dated July 24, 2021 alongwith the contractual rate of interest till realization; and ii. Direct the Respondent No. 1 to ensure that the invoices which will be raised by the Applicant on behalf of RCRIPL for the services provided by RCRIPL to KMPCL are paid in full and in priority; 2. The averments made in the Application filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld on 27.05.2021 with 78.59% of voting share, passed the following resolution was passed: RESOLVED THAT, pursuant to the provisions of Section 28 of the Insolvency Bankruptcy Code, 2016 and rules and regulations framed thereunder, consent of the members of the Committee of Creditors be and is hereby provided to the Resolution Professional to raise monthly invoices effective April, 2021 for providing transport infrastructure of the Corporate Debtor to KSK Mahanadi Power Company Limited, related party as per the commercials agreed in terms of the contract entered into between both the aforesaid parties in the year 2014 . In view of the above, from April, 2021 onwards RCRJPL is providing services to KMPCL under the Transportation Agreement, with the understanding that the same was to be invoiced by RCRIPL to KMPCL. 7. It is averred that the Applicant has raised the following invoices upon KMPCL for the services provided by RCRIPL under the Transportation Agreement, which were served on the Respondent No. 1 vide e-mail dated 24.07.2021 stating that the following invoices have been raised as per the contractual terms and the same are to be cleared within 10 days from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p to provide service but the RP has to pay the expenses to procure such supply or services to keep the Corporate Debtor as a going concern. We do not wish to add anything more than what has been stated under the Law . 13. It is averred that the various Orders passed by this Adjudicating Authority and the Hon'ble National Company Law Appellate Tribunal that as per Section 14(2A) payment must be made to the person for the critical services which are being provided. RCRIPL is also undergoing CIRP. The non-payment of dues by KMPCL is resulting in value erosion and zero revenue generation for RCRIPL. If the present circumstances are permitted to continue and RCRIPL is to transport coal for KMPCL against no consideration, RCRIPL shall be pushed into Liquidation. 14. It is averred that if there is any further delay in receiving payments from KMPCL, the interest of the stakeholders of RCRIPL will be prejudiced and irreparable harm will be caused to all stakeholders if the going concern status of RCRIPL is interfered with. 3. The averments made in the Reply filed by the Respondent No. 1 are as follows: i. It is averred that in the Agreement dated 31.03.2014 whereby KMPCL wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for the same in the invoices. The detailed statement is shown below: The amount billed for by RCRIPL as per minimum take or pay is nearly 3 times the actual quantity of coal supplied to KMPCL. KMPCL being a company which is already undergoing CRIP cannot be forced to make such exorbitant payments which KMPCL is not bound to pay for. Moreover, the question of applicability of the 2014 Agreement does not have any bearing on KMPCL since KMPCL has been releasing O M payments as per the 2016 arrangement until the Applicant has been appointed as the Resolution Professional of RCRIPL. vii. The invoices raised by RCRIPL are beyond the scope of the 2016 Arrangement between the parties and RCRIPL has not raised any invoices under 2014 Agreement until 24.07.2021. viii. It is averred that even KMPCL is undergoing CIRP and any payments to be made by KMPCL cannot be fixed at exorbitant amounts solely to benefit RCRIPL for revenue generation purposes. It is undisputed that KMPCL is to make payments for availing any essential services as per Section 14(2A) of the Code and the mandate of 28(1)(f) will also have to be followed by the respondent No. 1 in order to release any payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amounts of invoices dated 24.07.2021. It is not in dispute that the Applicant herein has been providing rail transport services to the Respondent Company to keep the Respondent Company as a going concern. We heard Learned Counsel for the Applicant/RP and Learned Counsel for the Respondents at length. 6. Section 14 (2A) of Insolvency Bankruptcy Code, 2016 states that - Where the Interim Resolution Professional or Resolution Professional, as the case may he, considers the supply of goods or services critical to protect and preserve the value of the Corporate Debtor and manage the operations of such Corporate Debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such Corporate Debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified . 7. So, the Law is very clear that the supplier of goods or provider of service of the Corporate Debtor cannot stop such supply or stop to provide services, provided the RP has to make the payment of expenses for such procurement of services or supply of goods to keep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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