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TMI Blog2019 (12) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... banked units. There is no provision or discussion regarding the normal units and the banked units in the entire solar power purchase agreement and addendums executed between the parties. Evidently, there has been an agreement of sale of electricity and purchase of electricity by and between the petitioner and the corporate debtor - there is a clear liability of payment of unpaid invoices in terms of the solar power purchase agreement and addendums between the parties, wherein the corporate debtor has agreed to buy the energies generated and supplied to the DISCOMs under the definitive arrangements and with the obligation to pay the said amounts within the stipulated agreed time. The liability of the corporate debtor cannot be absolved under the premise that they are liable to pay only at 3.70 per unit basing on the distinction drawn between the banked units and the other/normal units. This Adjudicating Authority, on perusal of the documents filed by the creditor, is of the view that the corporate debtor defaulted in paying the outstanding unpaid invoices raised by the petitioners in terms of the power purchase agreement and addendums thereto and also placed the name of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of interest at 24 per cent. per annum from the date of default in respective invoices. Thus, the amount of ₹ 5,67,70,860 is amount payable towards interest. 4. The petitioner issued demand notice dated May 8, 2018 to the corporate debtor. The notice was served on the corporate debtor on May 14, 2018. The corporate debtor replied to the demand notice on June 1, 2019 which is beyond a period of 10 days as envisaged under section 9(1) of the Code and merely stated that reconciliation of accounts has not been carried out and hence denied the outstanding dues. 5. The corporate debtor filed reply and denied the averments made by the petitioner. The corporate debtor confirmed that the tariff of payment agreed by the parties was at ₹ 5.30/kwh. And further an amendment to the agreement dated October 9, 2014 the tariff was revised to ₹ 5.10/kwh. An addendum was drawn by the parties on July 10, 2015 to extend the terms of agreement till June 30, 2015 and the tariff was amended and modified at ₹ 5.30/kwh for a period of November 1, 2014 to June 30, 2015 and at 5/kwh for a period of July 1, 2015 to December 31, 2015. The corporate debtor further stated that vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties. The corporate debtor further reiterated that for the transaction to culminate into sale and purchase of sale/community the title and ownership of good/ community has to be transferred by the buyer to the seller. In the present transaction there are no regulatory mechanism contemplated under the Electricity Act wherein trading can be undertaken in GSN. Therefore, even if corporate debtor wanted to, he could not undertake the activity of buying and selling of GSNs. The corporate debtor further disputed the liability of payment on the premises of banked and non-banked units and acknowledged that it is willing to pay, discharged its obligations of payment at ₹ 3.70 unit and further it is difficult to reconcile its accounts pretending to lots of transactions and hence amounts due and payable to the petitioner could not be crystallised and ascertained due to breakdown of software and loss of records. 9. The petitioner filed his rejoinder and averred that the corporate debtor never disputed the contents of the invoices, rates, provisions of the services, they just gave vague responses taking excuses of the software break- down, loss of records and data at its end and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties is whether there is any distinction drawn between other normal units and banked units under the power purchase agreement. The petitioner reiterated that the whole of outstanding invoices which are subject-matter of this petition pertain to the category of other units, i. e., units consumed by the end consumers of the corporate debtor and do not fall under the category of banked units as evidence by the energy settlement/report itself and therefore the reduced price of ₹ 3.70 per unit cannot be applied for such other units. The solar power purchase agreement executed between the parties expressly states that the petitioner agreed to sell the energy to the corporate debtor. At clause 4.2, the parties envisaged an energy accounting system wherein, it was agreed procedure that energy delivery measurement and accounting will be in accordance with the prevalent norms and procedure of RPC/ RLDC/SLDC/DISCOM, the energy supplied by the petitioner during the month will be based on the regional energy account/settlement procedure prescribed by the State Regulatory Authority/DISCOM provisions for settlement (credit note) issued by DISCOMs as the case may be and will form the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability of price for banked units at 3.70 per unit. 17. Further, upon perusal of the agreed terms of the power purchase agreement, it is clear that the electricity generated by the petitioner through its solar power plant could be injected into the electricity grid maintained by the DISCOM to be consumed by various consumers. Thereafter, the DISCOM acknowledges the receipt of particular of renewable energy and issues generation credit note (GCN). Then on the basis of energy settlement/report, the petitioner raises the invoice as per the units consumed by the end consumer. The corporate debtor is liable to pay these invoices raised by the petitioner whether they are banked units or other units as per to the agreed terms and conditions of the power purchase agreements and addendums executed between the parties. According to the petitioner the mechanism of the banked units is that the total electricity generated by the generator during a period is more than the electricity actually consumed by the end consumer, the excess electricity is called banked units, i. e., unconsumed electricity will go to the bank and are called banked units. He relied on the energy settlement/report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Therefore, neither an intervenor be impleaded as party nor can he be allowed to be heard in an application under section 9 of the IBC, 2016. The Legislature has envisaged the recourse of workmen/employees during the resolution process. 21. This Adjudicating Authority, on perusal of the documents filed by the creditor, is of the view that the corporate debtor defaulted in paying the outstanding unpaid invoices raised by the petitioners in terms of the power purchase agreement and addendums thereto and also placed the name of the insolvency resolution professional to act as interim resolution professional and there being no disciplinary proceedings pending against the proposed resolution professional, therefore the application under section 9 is taken as complete, accordingly this Bench hereby admits this petition prohibiting all of the following of item I, namely : (I) (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority ; (b) transferring, encumbering, alienating or disposing of by the corporate deb ..... 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