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2020 (10) TMI 539 - Tri - Insolvency and BankruptcyTermination of Power Purchase Agreement - restraint on respondent No. 1 from taking any steps pursuant to thereto or in consequence thereof and for continuance of PPA - HELD THAT - he Adjudicating Authority is empowered to decide the priorities as well as question of law and facts in matters concerning insolvency resolution as well as liquidation. The Corporate Debtor is undergoing liquidation. GUVNL has issued Termination Notice dated 30.08.2019 when Corporate Debtor is under liquidation. The termination is being questioned when Corporate Debtor is under liquidation. The right of financial creditor is recognized under Article 12.9 of PPA. The applicant being a secured creditor is questioning the termination notice. Therefore, the applicant can maintain the present application before the Adjudicating Authority under section 60(5)(c) of I B Code. Jurisdiction of Tribunal to entertain this dispute - whether the applicant has to approach Gujarat Electricity Regulatory Commission by filing application under section 79 of the Electricity Act, but not before this Tribunal? - HELD THAT - Now the company is under liquidation. When CERC has categorically stated in para 10 of the order that when moratorium under section 14 of the IBC was pending no proceeding lies before CERC. Relying on the decision of the CERC since the Corporate Debtor is under liquidation and by virtue of Article 12.9 of the PPA, the applicant has to approach the Adjudicating Authority under section 60(5)(c) of the I B Code and not before CERC to decide the dispute. It is true the asset without producing power and supply of power will not meet the object of the Code, viz. maximisation of value of the asset. Termination is not on the ground that power plant is unable to supply power. It is purely on the ground that the Corporate Debtor has gone into liquidation. Therefore, when the unit of the Corporate Debtor is sold as an ongoing concern and then only the object of the Code can be achieved. The Adjudicating Authority has to see the object of the Code, which is maximisation of value of the asset. The financial creditor, who is having security interest be allowed to continue with the secured asset till it is disposed of. Therefore, termination notice dated 30.08.2019 is liable to be set aside to enable the Financial Creditor to dispose of the secured asset as an ongoing concern. The Hon'ble NCLAT further held in the appeal that even during the liquidation PPA cannot be terminated. Termination notice set aside - application allowed.
Issues Involved:
1. Jurisdiction of NCLT to entertain the application. 2. Validity of the termination notice issued by the respondent. 3. Rights of the secured creditor under the Power Purchase Agreement (PPA) and the Insolvency and Bankruptcy Code (IBC). 4. Applicability of Article 12.9 of the PPA in the context of liquidation. 5. Maximization of asset value under the IBC. Detailed Analysis: 1. Jurisdiction of NCLT to entertain the application: The respondent contended that the Gujarat Electricity Regulatory Commission (GERC) is the appropriate forum to adjudicate the dispute under Clauses 6.6 and 10.4 of the PPA. However, the applicant argued that the NCLT has jurisdiction under section 60(5)(c) of the IBC to decide any question of law or facts arising out of or in relation to the insolvency resolution or liquidation proceedings. The Tribunal concluded that it has jurisdiction to entertain the application as the termination of the PPA is directly related to the liquidation process of the corporate debtor. 2. Validity of the termination notice issued by the respondent: The respondent issued a termination notice dated 30.08.2019 under Article 9.3.1(a) of the PPA, citing the initiation of liquidation proceedings as an event of default. The applicant argued that the termination was arbitrary and illegal, as the secured asset is a viable power-generating asset and the termination would impede the secured creditors' rights under section 52(1)(b) of the IBC. The Tribunal found that the termination notice was issued solely on the ground of liquidation, which is not a valid reason to terminate the PPA under the IBC framework. 3. Rights of the secured creditor under the PPA and the IBC: The applicant, being a secured creditor, claimed that it has security over the entirety of the Bhadrada Project, including the cash flow under the PPA. The Tribunal recognized the applicant's right to proceed with the secured asset as an ongoing concern by virtue of section 52 of the IBC. The Tribunal also noted that the applicant has the locus standi to challenge the termination notice as it directly affects the realization of the secured asset. 4. Applicability of Article 12.9 of the PPA in the context of liquidation: Article 12.9 of the PPA allows the financing parties to cause the power producer to assign the interests, rights, and obligations under the PPA to a third party in the event of default. The Tribunal held that Article 9.2.1(e) of the PPA, which provides for termination in case of liquidation, is subject to Article 12.9. Therefore, the applicant can take shelter under Article 12.9, which recognizes the rights of the financing creditors even in the event of liquidation. 5. Maximization of asset value under the IBC: The Tribunal emphasized that the objective of the IBC is to maximize the value of the assets. Termination of the PPA would hinder the maximization of the asset's value, as the power plant's value lies in its ability to generate and supply power. The Tribunal concluded that the termination notice would impede the realization of the secured asset's maximum value and set aside the termination notice to allow the secured creditor to dispose of the asset as an ongoing concern. Conclusion: The Tribunal set aside the termination notice dated 30.08.2019 issued by the respondent under Article 9.3.1(a) of the PPA. The Tribunal directed the respondent not to proceed against the applicant in pursuance of the termination notice pending the disposal of the secured asset by the applicant. The application was accordingly allowed, ensuring the maximization of the asset's value and protecting the rights of the secured creditor under the IBC.
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