Mr. Sumat Kumar Gupta R.P M/S ... vs Chairman And Managing Director Punjab ...

Sumat Kumar Gupta Resolution Professional M/S International Mega Food Park Ltd. ...Appellant

Versus

Chairman and Managing Director, Punjab State Power Corporation Ltd. & Ors. ...Respondents

Present: For Appellant: Dr. Rajansh Thukral and Mr. Sidharth Thukral, Advocates. For Respondents:

ORDER

06.12.2022: Heard learned counsel for the Appellant. This Appeal has

been filed against the order dated 18.10.2022 passed by the Adjudicating

Authority by which I.A. No. 413 of 2021 filed by the Appellant has been

rejected. In I.A. No. 413 of 2021 the Applicant/ Appellant has made following

prayers:

"(a) To declare Memo no. 1356/57IIPC-412 dated 28.05.2021 as premature and null & void and to set aside (Annexure A-7) thereby reviving PPA until such time the Resolution Applicant takes over the CD and thereafter Respondents may communicate with him with respect to PPA.

(b) To declare the order dated 05.05.2021 under section 20(2)(b) of IBC passed by the applicant

Cont'd.../ -2-

Resolution Professional regarding amendment of PPA (Annexure A-5) as valid and binding on the Respondents in the interest of CIRP.

(c) To issue directions to the respondents not to initiate any other action detrimental to the Corporate Debtor until the Resolution Applicant takes over the CD pursuant to the approval of the Resolution Plan already pending before this Hon'ble Bench in IA No. 616/2020."

2. The Appellant's case is that the PPA which was entered with the

Appellant and Punjab State Power Corporation Ltd. was cancelled on

28.05.2021 which ought not have been cancelled it having entered in

pursuance of permissions granted by the State of Punjab. He further submits

that under the Cure Notice issued on 20.05.2021, 60 days' time was allowed,

however, termination was done just after 8 days. He further submits that in

view of the order passed by the Punjab and Haryana High Court in CWP-PIL-

77-2021, Court on its own motion vs. Union of India and others, Direction (xi),

the PPA also could not have been terminated.

3. We have considered the submissions of learned counsel for the

Appellant and perused the record.

4. Under the Power Purchase Agreement (PPA), the Corporate Debtor had

to supply the Punjab State Power Corporation Ltd. the wind energy, which

even before initiation of CIRP was not being supplied. The Corporate Debtor

who was obliged to supply the energy to the Punjab State Power Corporation

Company Appeal (AT) (Insolvency) No. 1440 of 2022 -3-

Ltd. having failed to supply, after due notice issued by the Punjab State Power

Corporation Ltd. PPA was terminated. Insofar as the submission of learned

counsel for the Appellant that notice under Cure Clause was giving 60 days

and order was issued within 8 days, suffice it to say that it is not case of the

Appellant that within 60 days Cure Period Appellant was able to start the

supply of the wind energy to Punjab State Power Corporation Ltd. Hence, on

the said ground termination could not be faulted. Coming to the order of the

High Court of Punjab and Haryana, the direction issued under Para (xi) is as

follows:

"(xi) that if the Government of Punjab, Haryana, Union Territory, Chandigarh, and/or any of its Departments and/or functionaries, Central Government and/or its departments or functionaries or any Public Sector Undertakings or any Public or Private Companies or any Firm or any individual or person is/are, by the order of this Court or any Court subordinate to it or the Tribunal, required to do a particular thing or carry out certain direction in an particular manner, in a time frame, which is going to expire at any time from now up to 30th June, 2021, the time for compliance of such order shall stand extended up to 30th June, 2021, unless specifically directed otherwise by the Court concerned;"

5. The order of the High court as referred to refers to things which were to

be done under order of the Court or any Court subordinate to it or the

Tribunal, where it was required to do a particular thing or carry our certain

Company Appeal (AT) (Insolvency) No. 1440 of 2022 -4-

direction in an particular manner, in a time frame, which was extended up to

30th June, 2021. Present is not a case where any order of any High Court or

any subordinate Court or any Tribunal has ordered with regard to PPA. The

purpose of Clause (xi) of the order was entirely different and in no manner

help the Appellant in his submission.

6. Learned Adjudicating Authority has rightly refrained from adjudication

of the issue. We, thus, do not find any error in the order of the Adjiudicating

Authority rejecting the application of the Appellant. Appeal is dismissed.

7. We make it clear that rejection of the Application by the Adjudicating

Authority shall not preclude the Appellant from any such remedy/recourse

as permissible in law.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1440 of 2022