Gujarat Urja Vikas Nigam Ltd vs Amit Gupta

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency)No. 1045 of 2019 IN THE MATTER OF: Gujarat Urja Vikas Nigam Ltd. .....Appellant Vs. Mr. Amit Gupta ......Respondent Present : For Appellant: Ms. Ranjitha Ramachandran, Advocate

For Respondents: Ms. Mahima Singh, Advocate for RP

Mr. Anurag, Advocate

15.10.2019 - 'Gujarat Urja Vikas Nigam Ltd.' is the only purchaser of

electricity generated by 'Astonfield Solar (Gujrat) Pvt. Ltd.' (Corporate Debtor).

During the 'Corporate Insolvency Resolution Process' against the

'Astonfield Solar (Gujrat) Pvt. Ltd.', the 'Resolution Professional' is supposed to

keep the 'Corporate Debtor' a going concern, therefore, if it generates electricity,

the electricity line have been given only to the 'Gujarat Urja Vikas Nigam Ltd.'

and in terms of an agreement, they are supposed to supply electricity to 'Gujarat

Urja Vikas Nigam Ltd.'

However, in view of the initiation of 'Corporate Insolvency Resolution

....contd.

2

Process', the 'Gujarat Urja Vikas Nigam Ltd.' (Appellant herein) intended to

terminate the 'Power Purchase Agreement', which will result into making

'Corporate Debtor' 'Astonfield Solar (Gujrat) Pvt. Ltd.' defunct which only

generates electricity and supplies only to 'Gujarat Urja Vikas Nigam Ltd.'

In view of this, 'Resolution Professional' moved before the Adjudicating

Authority '(National Company Law Tribunal'), New Delhi Bench, against the two

default Notices by which they intended to terminate the power purchase

agreement on 30th April, 2010. The Adjudicating Authority by impugned order

dated 29th August, 2019 prohibited the Appellant from terminating the 'Power

Purchase Agreement', with liberty to terminate, if the 'Corporate Debtor' goes

into liquidation and the present appeal has been preferred.

Taking into consideration the nature of the case, we are of the view that to

keep the 'Corporate Debtor' a going concern, which is generating electricity and

supplying only to 'Gujarat Urja Vikas Nigam Ltd.', the Adjudicating Authority

rightly asked 'Gujarat Urja Vikas Nigam Ltd.' not to terminate the 'Power

Purchase Agreement' dated 30th April, 2010.

We may make it clear that the 'Gujarat Urja Vikas Nigam Limited', being

purchaser of the electricity cannot terminate the 'Power Purchase Agreement'

solely on the ground that the 'Corporate Insolvency Resolution Process' has been

initiated against 'Astonfield Solar (Gujrat) Pvt. Ltd.' (Corporate Debtor) which is

generating electricity and supplying it and there is no default in supplying 3

electricity and during the 'Corporate Insolvency Resolution Process'. On the

other hand, 'Gujarat Urja Vikas Nigam Limited', is not paying the dues, as

alleged by Ms. Mahima Singh, learned counsel for the 'Resolution Professional'

(M/s Astonfield Solar (Gujrat) Pvt. Ltd.).

For the reason aforesaid, while we dismissed the appeal, 'Gujarat Urja

Vikas Nigam Limited' is liable to pay the dues of the 'Corporate Debtor' during

the 'Corporate Insolvency Resolution Process' for the electricity supplied from

'Solar Power Plant' of the 'Corporate debtor'.

In view of such aforesaid finding, we rather delete the observation of the

Adjudicating Authority at page-35 where it is observed that the Appellant may

terminate the 'Power Purchase Agreement', if the 'Corporate Debtor' goes into

liquidation, as during the liquidation process also, the liquidator is to ensure

that the 'Corporate Debtor' remains a going concern.

The appeal stands disposed of with the aforesaid modification in the

impugned order. No costs.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A. I. S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) ss/sk Company Appeal (AT) (Insolvency)No. 1045 of 2019