9911796707
TMI Blog2021 (9) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. It is averred that the Applicant herein is the Resolution Professional of M/s. Raigarh Champa Rail Infrastructure Private Limited (RCRIPL). On 01.01.2021, this Adjudicating Authority admitted the Company Petition and initiated CIRP against RCRIPL. RCRIPL is engaged in the business of constructing and providing rail infrastructure for transportation of coal and other commodities through Indian Railways. 2. It is averred that RCRIPL was set up in the year 2009 with KSK Mahanadi Power Company Limited (KMPCL) as 49% shareholder and balance 51% being held by KSK Energy Company Private Limited. On March 20, 2014, both the parties entered into an Agreement for Infrastructure Utilisation for Transportation of Coal, which was subsequently amended on 31.03.2014 ("Transportation Agreement"). The Transportation Agreement is valid for a period of 14 years from 2014 unless extended by mutual agreement by both the parties. In terms of the Transportation Agreement, KMPCL is obligated to pay for the services provided by RCRIPL on or before the due date i.e. within 10 days from the Bill Date. As per Clause 6.2 of the Agreement, KMPCL is obligated to pay to RCRIPL charges (on a monthly basis) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid invoices are shown as Annexure-E of the application. 8. It is averred that Respondent No. 1 addressed an email dated 29.07.2021 to the Applicant inter alia objecting to the Invoices raised by the Applicant and proposing to convene a meeting between the Applicant and the Respondent No. 1 to discuss and renegotiate the terms of the commercial arrangement between RCRIPL and KMPCL. The Applicant communicated that only upon the payment of the invoices, the Applicant and the Respondent 1 can have a meeting to discuss and renegotiate the commercial terms between RCRIPL and KMPCL. In response to that KMPCL stated that it is not in a position to pay the aforesaid invoices and that the Applicant should reconsider his decision to have a meeting with KMPCL in order to resolve the matter. 9. It is averred that as no payments were made by the Respondent No. 1, the COC in its 9th meeting held on August 7, 2021 directed the Applicant to approach this Adjudicating Authority seeking payment of the invoices by KMPCL. Accordingly, the applicant had filed Miscellaneous Application No. 425 of 2021. 10. It is averred that KMPCL has been generating power on the basis of the coal that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RCRIPL as prescribed in Schedule-I of the 2014 Agreement, being subject to the actual amount of coal transported to the plant site of KMPCL. This was subject to minimum guarantee amount that KMPCL was required to pay to RCRIPL. As per this Agreement, the last invoice was raised in September, 2016. Pursuant to an arrangement between the parties since October, 2016, KMPCL was entitled to use the infrastructure of RCRIPL and as a consideration it was bound to bear the O&M charges for maintaining RCRIPL's infrastructure. ii. It is averred that since the earlier agreement between KMPCL and O&M Contractor of the Infrastructure of RCRIPL expired on 31.05.2021, a fresh Letter of Intent was issued by the Applicant in July, 2021 to the O&M Contractor of RCRIPL. It is also averred that KMPCL has made payments to the O&M contractor directly for the months of April and May, 2021, which amounts to Rs. 2,95,80,175/-. iii. It is averred that the present application is not maintainable due to concealment of material facts and false statements. In fact the averment that the commercial understanding between KMPCL & RCRIPL in the 2014 agreement has neither been amended nor modified is false in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority in IA 270 of 2021 in CP 492/7/HBD held that in order for the Corporate Debtor to avail the essential services, then the Resolution Professional must pay for the expenses or services to keep the Corporate Debtor as a going concern, which was presently before the Hon'ble NCLAT. x. The Respondent No. 1 also averred that by way of Section 25(1) read with Section 23(2) of the Code, the Respondent No. 1 is also required to maintain KMPCL as a going concern and that KMPCL cannot be made to bear expenses beyond the purview of the 2016 Arrangement. xi. The Respondent No. 1 further submits that it was the applicant, pursuant to the expiry of the contract between KMPCL and the contractor, who has approached the O&M Contractor for entering into the Letter of Intent (LOI) so as to make RCRIPL liable for O&M expenses. The Respondent No. 1 has ensured payments to the O&M contractor, until the expiry of the said contract in May, 2021 and is also still willing to reimburse RCRIPL for the O&M expenses incurred by RCRIPL for transportation of coal to KMPCL. Therefore, the Applicant cannot state that RCRIPL will be pushed into liquidation solely due to non-payment of invo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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