Encote Energy (India) Pvt. Ltd vs V. Venkatachalam

Encote Energy (India) Pvt. Ltd. .... Appellant

Vs

V. Venkatachalam .... Respondent

Present: For Appellant: Mr. Anshul Rawat, Mr. Tushar Bakshi and Mr. R. Soundara Rajan, Advocates. For Respondent: Mr. Ashish Joshi, Advocate for Resolution Professional.

ORDER

13.11.2019 The Appellant - Encotec Energy (India) Pvt. Ltd. filed a

claim as 'Operational Creditor' before the 'Resolution Professional' on the

ground that it has not been paid for the period July & August, 2017 and

some amount relating to previous Contract, for the services rendered by it to

Sai Wardha Power Generation Ltd. ('Corporate Debtor'). The 'Resolution

Professional' rejected the claim, against which the Appellant preferred

application under Section 60(5) of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as the 'I&B Code'), which stands disposed of by

the impugned order dated 27th September, 2019 passed by the Adjudicating

Authority (National Company Law Tribunal) Hyderabad Bench, Hyderabad.

The claim of the Appellant was not accepted by the 'Resolution Professional'

and the same was affirmed by the Adjudicating Authority for the reasons

mentioned at paragraph 12, as quoted below: -

Company Appeal (AT) (Insolvency) No. 1226 of 2019 Page 1 of 3

"12. The contention of Applicant that it rendered services to the corporate debtor for July as well as August, 2017. The undisputed fact that Corporate Debtor paid the amount for the service up to June, 2017. Main contention of Applicant that it rendered services for July & August 2017. On the other hand the case of the RP that no amount due by the Corporate Debtor to Applicant. Ledger account of Applicant maintained by Corporate Debtor is filed. It shows no amount is due to the applicant. The Counsel for RP raised an important ground that an amount of Rs.10,93,99,500/- was given to set off which was payable by Applicant to KSK Energies Ventures Limited from the amount payable to Applicant by Corporate Debtor. This shows huge amount was treated as set off by Applicant which was payable by Applicant by KSK Energies limited from out of the receivables."

2. Mr. Ashish Joshi, the Learned Counsel appears on behalf of

'Resolution Professional' and oppose the prayer for the same ground.

However, we are not expressing any opinion at this stage for the reasons

mentioned below.

3. It is brought to our notice that 'Resolution Plan' submitted by a

Consortium of Siri City Pvt. Ltd. and KCR Enterprise LLP, 'Resolution

Applicant' has been approved by the 'Committee of Creditors' with 75.91%

voting shares. The 'Resolution Plan' was placed before the Adjudicating

Authority under Section 13 and the Adjudicating Authority has approved the

same. Therefore, it is not possible for this Appellate Tribunal to decide the

Company Appeal (AT) (Insolvency) No. 1226 of 2019 Page 2 of 3 claim on the basis of the disputed question of fact, which can only be decided

by a Court of competent jurisdiction.

4. For the reason aforesaid, we allow the Appellant to make a claim before

the 'Successful Resolution Applicant' or to avail the remedy of 'Suit' in terms

of sub-section (6) of Section 60 of the I&B Code, if prayer is not allowed.

5. It will be open for the 'Successful Resolution Applicant' to settle the

matter with the Appellant uninfluenced by the Adjudicating Authority or this

Appellate Tribunal. Accordingly, the Appeal stands disposed of.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Venugopal M.] Member (Judicial)

Ash/SK

Company Appeal (AT) (Insolvency) No. 1226 of 2019 Page 3 of 3