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TMI Blog2023 (11) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... HUSHAN , J. This Appeal has been filed against the order dated 24.01.2023 passed by the National Company Law Tribunal, Ahmedabad Division Bench, Court-1, by which order IA No.525 of 2022 filed by the Appellant was rejected. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) The Appellant entered into an Agreement with Wind world India Limited (Earlier known as Enercon (India) Limited) for supply of material. The Agreement between the parties were for supply of Wind Turbine Generators ("WTG"). In pursuance of the Agreement, Wind Turbine Generators were supplied by the Corporate Debtor for which payments were made by the Appellant. (ii) On Section 7 Application of the Insolvency and Bankruptcy Code, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the Respondent to adhere to the terms of Agreement dated 03.03.2010 and supply immediately the 26 WTGs lying with the Corporate Debtor against the advance payment already made by the Applicant; c. Pass any other order/ directions as this Hon'ble Tribunal may deem fit in the interest of justice in the facts and circumstances of the instant case." The RP filed affidavit in reply to the IA, refuting the claim of the Appellant. (vi) The Adjudicating Authority after hearing the parties, by the impugned order, rejected the IA No.525 of 2022. Aggrieved by which order, this Appeal has been filed. 3. We have heard Shri Abhijeet Sinha, learned Counsel appearing for the Appellant and shri Sumant Batra, learned Counsel appearing for RP. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant submits that the Appellant is a 'related party' to the Corporate Debtor and the entire claim submitted by the Appellant in the CIRP of the Corporate Debtor has been admitted and the Appellant is entitled to receive his dues in the CIRP as per provisions of the Code. The 26 WTGs, which are lying at Yermala are not the WTGs, which were in pursuance of the contract between the parties. It is submitted that Agreement between the parties dated 03.03.2010 was to supply WTGs upto financial year 2014-15, that Agreement cannot be enforced by the Appellant by means of IA, filed in the CIRP. It is submitted that the Appellant had earlier filed an Application for set off its admitted operational claim, which Application has now been rejected. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tential income for operation and maintenance (O&M) of the said turbines from Vish Wind, while denying this in toto, I state that the current outstanding dues payable by Vish Wind towards outstanding dues under the currently subsisting agreements are to the tune of Rs.74,94,60,745 (even without considering the interest applicable @ 18% p.a.) for which WWIL has also initiated arbitration proceedings against VishWind. Thus, the proposition of supplying the said WTGs to VishWind and gaining any revenue from VishWind is denied and cannot be perceived as an action that can probably maximise the value of the assets of WWIL at all. Admittedly WWIL is managed as a Company Appeal (AT) (Insolvency) No.241 of 2023 7 going concern during the CIRP, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about Rs.75 crores, which the Appellant has not paid to the Corporate Debtor, which was due for the services rendered by the Corporate Debtor during the CIRP period towards operation and maintenance of existing WTGs. The Corporate Debtor has to initiate arbitration proceedings for realization of the aforesaid dues. On one hand, the Appellant is not paying the dues and on the other, the Appellant is claiming to supply WTGs, which are lying with the Corporate Debtor. The learned Counsel for the RP has further contended that in the Application, which was filed by the Appellant, it is not even pleaded that 26 WTGs, which are lying at Yermala in Maharashtra, are the Generators, which are in compliance of the Contract between the parties. In par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after seven years from the said period, the Appellant cannot pray for specific performance of Contract in the CIRP. 11. From the facts brought on record, it is clear that the RP is claiming payment of dues of about Rs.75 crores from the Appellant, for which arbitration proceedings have been initiated. When the Corporate Debtor has not received the dues from the Appellant for which proceedings are pending, the decision taken by the RP, not to handover the 26 WTGs is as per the wisdom of RP, who is to run the Corporate Debtor as a going concern. The Operational Creditor having filed the claim, which has been already admitted for an amount of Rs.132 crores and odd, the same has to be dealt with as per the CIRP and the Appellant has no right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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