TMI Blog2022 (9) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to entertain the writ petition under Article 226 of the Constitution of India. That being the position, we are not inclined to entertain the writ petition. However, writ petitioners would be at liberty to work out their remedies in terms of IBC. Petition dismissed. - W.P.No.15090 OF 2020 - - - Dated:- 29-8-2022 - HON BLE THE CHIEF JUSTICE UJJAL BHUYAN AND HON BLE SRI JUSTICE C.V.BHASKAR REDDY Counsel for the Petitioners : Mr. P. Sriram, Advocate General for the State of Andhra Pradesh for Mr. B. Harinath Rao Counsel for respondent Nos.2 and 3 : Mr. S. Ravi, Senior Counsel ORDER: (Per the Hon ble the Chief Justice Ujjal Bhuyan) Heard Mr. P. Sriram, learned Advocate General for the State of Andhra Pradesh representing Mr. B. Harinath Rao, learned counsel for the petitioners, and Mr. S. Ravi, learned Senior Counsel appearing for respondent Nos.2 and 3. 2. This writ petition, under Article 226 of the Constitution of India, has been filed assailing the legality and validity of the order dated 27.11.2019 passed by the National Company Law Tribunal, Hyderabad Bench i.e., respondent No.1 (briefly, the Tribunal hereinafter) directing the petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conditions as set out in the original PPA and as per tariff determined by the Regulatory Commission during pendency of PPA before the Regulatory Commission. In terms of Clause 5.12 of the PPA, corporate debtor submitted monthly tariff bills and supplementary bills to the writ petitioners upon regular supply of electricity. Till May, 2019, writ petitioners were regular in making payments. From 04.07.2019, in terms of Bill No.231 dated 11.07.2019, an amount of Rs.23,91,37,582/- was outstanding against the supply of electricity. It is in the above backdrop that the Interlocutory Application came to be filed before the Tribunal. 5. Writ petitioners filed counter affidavit in the Interlocutory Application. After denying the contentions made by the Resolution Professional, writ petitioners stated that pending approval of PPA by the Regulatory Commission, there was an understanding between the parties that the price paid for the power supplied during the interim period would be trued-up based on the terms and conditions set out in the said PPA. It was further stated that payments made to respondent No.3 were being reconciled and after payments made till the month of June, 2019, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed during the CIRP period on the basis of actual supply of electricity to the DISCOMS/Respondents. The objective of the IB Code, 2016 is to provide a specific law relating to reorganization and Insolvency Resolution of Corporate Persons in a time bound manner for maximization of value of assets of such persons and to promote entrepreneurship, availability of credit and balancing the interest of all the stakeholders. Therefore, we hereby direct that payments as per the mutually agreed terms, pending approval of Hon'ble APERC, shall be made by the DISCOMS/Respondents in respect of Power Purchase Bills raised by the Corporate Debtor on actual user basis, so as not to adversely affected the Insolvency Resolution Process of the Corporate Debtor. 8. The contention of the Respondents placing reliance on the Judgment of Hon'ble Supreme Court in the case of Mobilox (supra) is entirely misplaced, as in the instant Application is not an application filed u/s.9 of the IBC, 2016 for triggering any Insolvency Resolution Process against the Respondents, but is an application filed u/s 60(5) of the IBC, 2016 for protecting and preserving the business of the Corporate Debtor undergoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 in support of his contention that in an appropriate case, the High Court may exercise its extraordinary jurisdiction under Article 226 of the Constitution of India notwithstanding availability of alternative remedy. Learned Advocate General has also relied upon a decision of the Supreme Court in Embassy Property Developments Private Limited vs. State of Karnataka 2020(13) SCC 308 to contend that the Tribunal under IBC would not have the jurisdiction when the disputes revolve around decisions of statutory or quasi judicial authorities, such as, the decision to be taken by the Regulatory Commission. 12. In the hearing, learned Advocate General for the State of Andhra Pradesh appearing for the petitioners has further placed reliance on a decision of the Supreme Court in State of Uttar Pradesh vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samithi (2008) 12 SCC 675 to contend that once a writ petition is admitted, it cannot be dismissed on the ground of alternative remedy. 13. On the other hand, Mr. S.Ravi, learned Senior Counsel appearing for respondent Nos.2 and 3, submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved over the years, Constitutional Courts have imposed upon themselves self-restraint in not exercising such jurisdiction barring in certain exceptional circumstances, such as, violation of principles of natural justice, when the vires of a Statute is challenged, etc. However, the same is not the position in the present case. The order impugned in the writ proceeding cannot be said to be within the four corners of the exceptions carved out by the Courts including in Whirlpool Corporation (2 supra). 16. In so far Embassy Property Developments Pvt. Ltd (3 supra) is concerned, the questions which arose for consideration before the Supreme Court were as follows:- i) Whether the High Court ought to interfere, under Article 226/227 of the Constitution, with an Order passed by the National Company Law Tribunal in a proceeding under the Insolvency and Bankruptcy Code, 2016, ignoring the availability of a statutory remedy of appeal to the National Company Law Appellate Tribunal? and if so, under what circumstances; and ii) Whether questions of fraud can be inquired into by the NCLT/NCLAT in the proceedings initiated under the Insolvency and Bankruptcy Code, 2016? 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the aforesaid decision Supreme Court held that the NCLT did not have the jurisdiction to entertain an application against the Government of Karnataka for a direction to execute supplemental lease deeds for extension of the mining lease because such a jurisdiction was not vested in the NCLT. In so far the second question is concerned, it was held that the NCLT has the jurisdiction to enquire into questions of fraud, but the NCLT would not have the jurisdiction to adjudicate disputes/decisions arising under specific statutes rendered by statutory or quasi judicial authority. 20. Regarding the decision in Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samithi (4 supra), it is true that when a writ petition is admitted by issuing rule nisi and is pending for a considerable period for adjudication, it would not be judicious to dismiss the writ petition on the ground of alternative remedy. But in the present case, as we have seen, the writ petition has not been admitted; only notice was issued that too on 20.11.2020 with interim stay. Therefore, the aforesaid decision is not applicable to the facts of the present case. 21. The fact that the writ petitioners did not file appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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