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TMI Blog2020 (9) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... objectives of the Code i.e., maximisation of value of the assets of the Corporate Debtor and running the Corporate Debtor as a going concern - This Adjudicating Authority is of the view that the facts and circumstances of the instant case will squarely fall within the category of unforeseen circumstances which have adversely impacted the CIRP process. Thus, the period during which the supply of gas remain suspended/disrupted i.e., from 04.07.2019 to 04.10.2019 should be excluded from the CIRP period and therefore the exclusion of a period of 92 days from computation of 270 days is allowed with immediate effect for completion of the CIRP process. Application disposed off. - IA No. 71/2020 in CP (IB) No. 678/7/HDB/2018 - - - Dated:- 21-1-2020 - K. Anantha Padmanabha Swamy, Member (J) and Binod Kumar Sinha, Member (T) ORDER 1. The present Application bearing IA No. 71/2020 is filed by RP of the Corporate Debtor seeking following prayers:- a. Declared and direct that the period of four days when the copy of admission order was not available and the Resolution Professional could not take control of the Corporate Debtor, shall be excluded for the purposes of calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to INR 23.91 crore, only a partial payment has been made and an amount of ₹ 16.46 crores has not been made by the DISCOMS and on account of such non-payment, the Corporate Debtor was unable to make payments to the GAIL. On account of which, gas supply was suspended and the operations of phase-I of the plant of the Corporate debtor was stopped and on 05.10.2019 the operations were resumed. e. An Application bearing IA No. 757/2019 was filed by RP seeking to challenge the Application bearing IA No. 16/2019 ( withdrawal petition ) filed by the DISCOMS before the Hon'ble Andhra Pradesh Electricity Regulatory Commission, Hyderabad ( APERC ) for withdrawal of the Application for approval of the PPA. This application was taken up for the first time on 09.09.2019 and disposed of on 27.11.2019 thereby allowing this application in favour of the Corporate Debtor and further holding that the DISCOMS shall not pursue the Withdrawal Petition until the moratorium is subsisting i.e., up to the date of completion of the CIRP of the Corporate Debtor. f. The order for CIRP was passed on 23.04.2019. However, the order was made available on 26.04.2019 and the RP took control over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods consumed in litigation which warrant exclusion are specified herein below: i. Period from 25 July 2019 (when notice was issued in IA No. 637 of 2019 as mentioned above) to 27 November 2019 (when final order passed by this Hon'ble Tribunal disposing off the litigation regarding payments by DISCOMS and termination of the Power Purchase Agreement); ii. Period of four days when the copy of admission order was not available and the Resolution Professional could not take control of the Corporate Debtor. m. That there would have been effective utilisation of only 141 days out of 270 days of CIRP till 18 January 2020 and consequently the remaining period of 129 days ought to be granted to COC and the Resolution Professional to complete the CIRP and attempt to resolve the financial distress of the Corporate Debtor which is admittedly a viable concern worthy of resolution. n. Applicant has placed reliance on the decision of the Hon'ble National Company Law Appellate Tribunal ( NCLAT ) in Quinn Logistics India Pvt. Ltd. v. Mack Soft Tech Pvt. Ltd Ors. (Company Appeal (AT) (Insolvency) No. 185 of 2018) wherein the Hon'ble NCLAT has held that although the CIR proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MS, the Corporate Debtor failed to pay the dues to GAIL in respect of supply of gas and consequently, GAIL stopped supply of gas on account of non-payment of their dues on 04.07.2019. Since, the power plant of the Corporate Debtor is a gas based power plant and the supply of gas was disrupted due to non-payment of the dues, the operations of the Corporate Debtor came to standstill for a period from 04.07.2019 to 04.10.2019. 5. It is a matter of record that the RP has filed an application bearing IA No. 637/2019 seeking payment of dues from DISCOMS for their invoices dated 11.07.2019 and the IA was disposed of by this Adjudicating Authority on 05.09.2019. 6. Again, another Application bearing IA No. 740/2019 was filed by the RP against the DISCOMS seeking payment of dues for supply of power before this Adjudicating Authority and the same was disposed of on 27.11.2019. 7. It is the contention of the RP that due to this litigation with the DISCOMS for payment of dues in respect of power which led to non-payment by the Corporate debtor to GAIL for supply of gas on time resulted in multiple disadvantages to the Corporate Debtor and had an adverse impact on the CIRP process. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OMS as well as withdrawal of approval of the Power Purchase Agreement from Hon'ble APERC and also had to struggle to run the Corporate Debtor as a going concern in view of suspension of supply of gas by GAIL due to non-payment of their dues. 15. It also appears that while the RP was struggling with these issues, Form-G was published on 06.07.2019 and 9 EoIs were received from the prospective Resolution Applicants. However, only one Resolution Plan was received in view of the litigation with DISCOMS, withdrawal of Power Purchase Agreement and disruption of supply of gas and the operations remaining standstill. 16. Thus, the circumstances prevailing during the period had adversely impacted the CIRP process in achieving the objectives of the Code i.e., maximisation of value of the assets of the Corporate Debtor and running the Corporate Debtor as a going concern. 17. This Adjudicating Authority is of the view that the above facts and circumstances of the instant case will squarely fall within the category of unforeseen circumstances which have adversely impacted the CIRP process. 18. Taking into consideration all the facts obtaining in the case, we are of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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