TMI Blog2022 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... on, showering upon Jurisdiction to an Appellate Authority to decide any question / issue concerned the Corporate Debtor. The Resolution Plan was approved by the Adjudicating Authority (National Company Law Tribunal, Division Bench II, Chennai) on 01.02.2022. Taking note of the fact that the Respondent / Resolution Professional before the Adjudicating Authority (National Company Law Tribunal, Division Bench II, Chennai) had taken a stand that Rs.75.63 Crore is receivable and that the Applicant / Appellant ought to be directed to pay the said sum immediately and in the teeth of the stand taken by the Respondent / Resolution Professional that the Appellant / Applicant claim of ownership is subject to the Full Payment of the entire consideration for the Project and owing to the non-payment of the contractual sum, one WEC was not handed over to the Appellant / Applicant and in the event of payment of Full Dues, the 1 WEC will be handed over to the Appellant, the present Relief prayed for by the Appellant/ Applicant, seeking direction to the Respondent / Resolution Professional to deliver one 1500 KW WEC in working condition etc., resting on the ground, that it belongs to it, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eging that the transactions in question were preferential as also undervalued and fraudulent. In our view, in the scheme of the Code, the parameters and the requisite enquiries as also the consequences in relation to these aspects are different and such difference is explicit in the related provisions. As noticed, the question of intent is not involved in Section 43 and by virtue of legal fiction, upon existence of the given ingredients, a transaction is deemed to be of giving preference at a relevant time. However, whether a transaction is undervalued requires a different enquiry as per Sections 45 and 46 of the Code and significantly, such application can also be made by the creditor under Section 47 of the Code. The consequences of under valuation are contained in Sections 48 and 49. Per Section 49, if the undervalued transaction is referable to sub-section (2) of Section 45, the Adjudicating Authority may look at the intent to examine if such undervaluation was to defraud the creditors. On the other hand, the provisions of Section 66 related to fraudulent trading and wrongful trading entail the liabilities on the persons responsible therefor. We are not elaborating on all these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned it is seen that the said Application has been filed by the Applicant viz. Wind Construction Limited to direct the Respondent to deliver one 1500KW WEC in working condition along with charging certificate issued by CEIG and commissioning certificate issued by TANGEDCO, to the Applicant for which the entire consideration has been paid by the Applicant in the matter of Regen Powertech Private Limited. At present, as already stated the Resolution Plan in respect of the Corporate Debtor has already been approved by this Tribunal vide its order dated 01.02.2022 and the new management is required to take control of the Corporate Debtor. Thus, the Applicant has not made a case of fraud or dishonest intention on the part of the Respondents except making sweeping allegations and hence Section 66 of IBC, 2016 cannot be invoked under such circumstances and dismissed the Application , without costs. Appellant s contentions: 3. Challenging the Validity Propriety and Legality of the Impugned Order dated 01.07.2022 in IA/1147/IB/2020 in IBA/1099/2019, the Appellant / Applicant has focused the instant Comp. App. No.361/2022 by submitting that a Contract dated 24.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Counter filed by the Respondent in IA/1147/IB/2020 in IBA/1099/2019, the Respondent had stated that due to non-payment of Rs.4.81 Crore, 1 of WEC was not handed over to the Appellant . 10. The other contention advanced on behalf of the Appellant is that the Adjudicating Authority (National Company Law Tribunal, Division Bench II, Chennai) had failed to take into consideration an important fact that the Respondent is bound by the Terms of Agreement , entered into by the Corporate Debtor with the Appellant . 11. The Learned Counsel for the Appellant proceeds to point out that as per Terms of Agreement Rs.200 Crore to be paid through Letter of Credit . However, the payment at the request of the Corporate Debtor had opened a Letter of Credit for Rs.267,68,91,817/- and that an excess sum was repaid by the Corporate Debtor , i.e., Rs.70,82,13,052/-. Besides this, the Letter of Credit was opened for further sum of Rs.71,297,645/-. 12. The fervent Plea made on behalf of the Appellant is that he had made payment of Rs.267,68,91,817/-, through Letter of Credit . As per the Terms of Contract , it is bound to open Letter of Credit , onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he RP ceases to be one after an order under Section 31 is passed. The RP does not have any connection whatsoever with the new Management which takes over the erstwhile Corporate Debtor, after the approval of the Resolution Plan. Any other interpretation could lead to a situation where an RP could be a Former RP for years together without any definite end date. Under Section 23, the CIRP period is a specific period and cannot be read as a perpetual period or an indefinite period. The wording of the proviso in fact makes it further clear that the CIRP process in fact comes to an end immediately upon the RP submitting the Plan itself. 78. The IBC was meant to cure the fallacies and shortcomings in the previous legislations wherein winding-up of companies consumed years together leading to erosion of their assets and businesses. The wording of Section 23 clearly lays down the mandate for the RP. The same cannot be extended beyond the contemplation in the statute. After the Resolution Plan is approved and the new management takes over, the manner in which the affairs of the company are to be run is the sole prerogative of the new management. In the statutory scheme, the RP cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant has filed an IA/1147/IB/2020 in IBA/1099/2019, on the file of the Adjudicating Authority (National Company Law Tribunal, Division Bench II, Chennai), praying for issuance of a Direction to the Respondent to deliver one 1500 KW WEC, in working condition, along with Charging Certificate issued by the CEIG and Commissioning Certificate issued by the TANGEDCO. 21. Before the Adjudicating Authority , (National Company Law Tribunal, Division Bench II, Chennai), the Respondent / Resolution Professional had filed the Reply , to IA/1147/IB/2020 in IBA/1099/2019, stating that the RPPL had entered Supply Contract , for supply of 49.5 MW comprising 33 Wind Mills on 24.01.2018, which is a Turnkey Agreement for supply , erection and commissioning of 49.5 MW with a capacity of 1.5 MW at Onamakulam Village, Tirunelveli. In Terms of the Payment , if there is any delay in payment, the Corporate Debtor is entitled to levy 18% interest per annum, on the sum payable. 22. From the Reply projected by the Respondent / Resolution Professional to IA/1147/IB/2020 in IBA/1099/2019, it is patently evident that the Corporate Debtor had raised Invoices to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.63 Crore is receivable and that the Applicant / Appellant ought to be directed to pay the said sum immediately and in the teeth of the stand taken by the Respondent / Resolution Professional that the Appellant / Applicant claim of ownership is subject to the Full Payment of the entire consideration for the Project and owing to the non-payment of the contractual sum , one WEC was not handed over to the Appellant / Applicant and in the event of payment of Full Dues , the 1 WEC will be handed over to the Appellant, the present Relief prayed for by the Appellant / Applicant , seeking direction to the Respondent / Resolution Professional to deliver one 1500 KW WEC in working condition etc., resting on the ground, that it belongs to it, is as Ex Facie , is not maintainable in the eye of Law , as opined by this Tribunal . Conclusion : Viewed in the aforesaid perspective and in the light of foregoing, IA/1147/IB/2020 in IBA/1099/2019 filed by the Appellant / Applicant is devoid of merits. Resultantly, the instant Comp. App. No.361/2022 preferred by the Appellant / Applicant is Dismissed . No Costs. The connected IA/827/2022 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
