9911796707
TMI Blog2023 (11) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to claim that 26 WTGs lying in the inventory of the Corporate Debtor should be handed over to the Appellant. The decision of the RP refusing to handover 26 WTGs lying with the Corporate Debtor, is a decision which RP is entitled to take as per the scheme of the Code, which decision cannot be said to be contrary to any provisions of the Code or in breach of any right of the Appellant. The Adjudicating Authority has not committed any error in rejecting the IA filed by the Appellant. There are no error in the order of the Adjudicating Authority, rejecting the IA filed by the Appellant - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Abhijeet Sinha, Ms. Varsha Banerjee, Ms. Mahima Ahuja, Advocates For the Respondent : Mr. Sumant Batra, Ms. Ruchi Goyal, Ms. Diya Dutta, Advocates for RP JUDGMENT ASHOK BHUSHAN , 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice 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. The learned Counsel for the Appellant challenging the order of the Adjudicating Authority submits that there was already a contract with the Corporate Debtor under which the Corporate Debtor was to supply the WTGs, for which an advance payment of Rs.132 crores were paid by the Appellant, which is lying with the Corporate Debtor. It is submitted that 26 WTGs were lying with the Corporate Debtor, which could have been supplied against the advance payment made by the Appellant and the amount could have been adjusted from the claimed amount admitted in the CIRP of the Corporate Debtor. It is submitted that the RP is under obligation to run the Corporate Debtor as a going concern and business of the Corporate Debtor cannot be stopp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons were communicated by the RP for not acceding the request of the Appellant. Paragraph 3 of the letter dated 17.06.2022 is as follows: 3. With reference to paragraph 7, 8 and 9 I state that the 26 wind turbine generators (WTGs) lying in the Yermala site cannot be arbitrarily appropriated to Vish Wind as requested. In view of the facts stated in paragraph 2 above, there is no question of WWIL fulfilling obligation under the Agreement, especially in the manner proposed in the letter. Further, with reference to your statement that by supplying the said WTGs to VishWind, WWIL would benefit from the potential 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 probab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Contract between the parties. In paragraph 13 of the Application, the Appellant has made the following pleadings: 13. It is submitted that the Corporate Debtor has available in its inventory 26 wind turbine generators lying at Yermala in Maharashtra in semi erected conditions. These wind turbine generators can be supplied to the Applicant in terms of the agreement wherein the advance payment has already been made to the Applicant. It is noteworthy that in case if these wind turbines generators are not supplied to the Applicant, it will further erode the asset value of the WTGs. However, in case the same are supplied to the Applicant, the Respondent will not be in contravention of the terms of the agreement and the obligations arising from the same will be fulfilled. It is noteworthy that the agreement is still subsisting and neither frustrated nor effected by force majeure or any other legal impediment, preventing the due performance of the said Agreement dated 03.03.2010. 10. The case of the Appellant is that there are 26 WTGs in the inventory of the Corporate Debtor, which are lying at Yermala and the same can be supplied to the Appellant or else it will further erod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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