M/S Gail India Ltd vs Mr.Kuldip Kumar Bassi

IN THE MATTER OF: M/S GAIL (INDIA) LIMITED Through Mr. Rajendra Kumar Office At: 809, Sakar - II, Opp. Town Hall, ...Appellant Near Ellisbridge, Ahmedabad - 380006

Versus

1.MR. KULDIP KUMAR BASSI RESOLUTION PROFESSIONAL OF ASIAN COLOUR COATED ISPAT LTD. UNIT NO. 410, LEVEL 4, CENTRUM PLAZA, GOLF COURSE ROAD, SECTOR 53, GURGAON, HARYANA, 122 001

2. JSW STEEL COATED PRODUCTS LIMITED JSW Centre Bandra Kurla Complex, Bandra (East), Mumbai City - 400 051 ...Respondents

Present: For Appellant : Mr. Varun K. Chopra along with Mr. Mehul Sharma, Advocates. For Respondents : Ms. Pooja Mahajan & Mr. Savar Mahajan, for R-1. Mr. Bishwajit Dubey, Ms. Aishwary Gupta & Ms. Priyanshi Mittal, for R-2. Mr. Ankur Mittal, for CoC.

JUDGMENT

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 26.10.2020, passed by

the Adjudicating Authority (National Company Law Tribunal, Principal Bench,

New Delhi) by which an application bearing I.A. No. 1237 of 2019 filed by the

Appellant for verification and acceptance of the claim dated 20.12.2018 has

been dismissed save and except to the extent that has been admitted by the

RP.

Company Appeal (AT) (Insolvency) No. 1065 of 2020 2

2. In brief, an application under Section 7 of the Insolvency and

Bankruptcy Code, 2016 (in short 'Code') bearing CP No. (IB) 50 of 2018 was

admitted by the Adjudicating Authority vide its order dated 20.07.2018.

3. The RP made a public announcement inviting claims from the creditors

of the Corporate Debtor on 24.07.2018 in pursuance to which, the Appellant

submitted its proof of claim in Form B and under Regulation 7 of the

Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for

Corporate Persons) Regulations, 2016 (in short 'Regulations') for a total

liability of Rs. 4376.49 Crores alongwith applicable interest as on 20.12.2018

was set up.

4. The RP vide its letter dated 04.02.2019 rejected the claim of the

Appellant and admitted only the claim to the tune of Rs. 59.5 Crores.

Aggrieved against the order of rejection dated 04.02.2019, the Appellant filed

CA No. 1237 of 2019 under Section 60(5) of the Code for seeking directions to

the Respondent (RP) for verification and acceptance of claim dated 20.12.2018

which has been dismissed by the Adjudicating Authority.

5. The case set up by the Appellant is that the Corporate Debtor executed

two Gas Sale Agreements (GSA) on 18.09.2014 and 12.02.2016 respectively.

It is argued that as per Article 14.1 of the agreement, the Corporate Debtor

was liable to pay an amount towards 'take or pay obligation' which is 90% of

the existing annual contract quantity and since the period of agreement runs

from the date of agreement till the year 2038 and 2028, the claim of the

Appellant 'take or pay liability' against the Corporate Debtor is calculated from

due date till the end of the agreement i.e. 2038 and 2028 respectively and a

claim of Rs. 4,376.49 Crore is made out.

Company Appeal (AT) (Insolvency) No. 1065 of 2020 3

6. In response, the case set up by the Respondent before the Adjudicating

Authority is that the claim based on 'take or pay obligation up to 2038/2028'

is not properly read by the Appellant as has been mentioned in the agreement.

If article 14 is read carefully, it is an admitted fact that pay and take clause

is applicable only to the current calendar year but not to the entire period as

mentioned by the Appellant. The Adjudicating Authority has thus observed

that: -

"68. By reading the Article and making calculation of the calendar year days of the respective year until before commencement of CIRP, the payment left to be paid to GAIL has come to Rs. 59.49 Crore, therefore, the RP has admitted 59.49 Crore as its claim out of 4,376.49 Crore claimed by GAIL.

69. In the back drop of these facts, when pay and take liability mandate is applicable only to the current calendar year and the RP having calculated the calendar year days until before commencement of CIRP, we are of the view that the RP has rightly calculated. It is not the case of this applicant that the period for which calculation made is incorrect. And it is not the case of GAIL that during the said calendar year, GAIL has supplied gas more than the value that has been admitted by the RP. For the days passed during the calendar year being calculated and the claim being admitted, GAIL claiming Rs. 4,376.49 till the years 2038 and 2028 (for whole contract period) is preposterous, therefore, the same is hereby rejected save and except to the extent that has been admitted by the RP"

7. During the course of hearing, Counsel for the Appellant has argued that

though a sum of Rs. 103.5 Crore has been admitted as liability by the

Respondent but the RP has scaled it down to 59.49 Crores, therefore, his

Company Appeal (AT) (Insolvency) No. 1065 of 2020 4

whole focus has been shifted to the claim of Rs. 103.5 Crores which allegedly

become recoverable from the Respondent (Corporate Debtor).

8. We have given many opportunities to the Appellant to seek instructions

for the purpose of bringing on record the evidence to the effect as to how Rs.

103.5 Crores liability of the Respondent, is made out but no evidence has

been led despite taking various opportunities and at last the Appellant wanted

to prove the fact with the aid of some chart without disclosing the source of

preparing the same.

9. In such circumstances, we have no other alternative but to close this

case in the absence of any evidence even in respect of the amount of Rs. 103.5

Crore which has been asked for by the Appellant and uphold the order of the

Adjudicating Authority in which we have not found any error.

10. Thus, the appeal is found without any merit and the same is hereby

dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

New Delhi 28th March, 2023

Sheetal

Company Appeal (AT) (Insolvency) No. 1065 of 2020