AI Drafter 
TaxTMI 
TaxTMI 
2018 (4) TMI 1604
X X X X Extracts X X X X
X X X X Extracts X X X X
....s discerned from the pleadings of the parties , are as follows:- (a) Equipment Conductors & Cables Limited, (Operational Creditor) is a small scale industry unit, which is into manufacturing of ACSR, AA Conductors and AAA Conductors for overhead power transmission lines. (b) Transmission Corporation of Andhra Pradesh Limited (Corporate Debtor) is a Company incorporated under the Companies Act on 29.12.1998. order to Purchase (c) In pursuance CEP/EP3/A1/CEBT-1851/95/PM-8817 dated No. 31st October 1995 issued by the Corporate Debtor to the Operational Creditor for supply of conductor/ finished products, the Operational Creditor supplied goods in question. Aggrieved by non-payment of interest for delayed payments, M/S Equipment Conductor & Cables/ Supplier, the Operational Creditor, has filed claim against Transmission Corporation of AP/ Corporate Debtor, before Haryana Micro and Small Enterprises Facilitation Council(HMSEFC for short) claiming an amount of Rs. 1, upto 30.06.2011, which was subsequently revised to Rs. 5,58,64,041/- upto 31.01.2008 on account of interest for the delayed payrnent for the price of goods for items No 1 to 82. Accordingly, HMSEFC....
X X X X Extracts X X X X
X X X X Extracts X X X X
....105 of 2014 of P & H, and award dated 21.06.10 etc. before the Hon 'ble Chief Judge, City Civil Court. Hyderabad.However, it was dismissed by an order dated 17.8.16. Aggrieved by the order passed in EP dated 17.08.2016 made in EA No. 414 of 2016 in EP SR No. 10950, the Corporate Debtor has filed Civil Revision Petition bearing CRP NO. 5334 of 2016 before the Hon'ble High Court of judicature at Hyderabad. After hearing the case, the Hon'ble High court was pleased to allow it by an order dated 8th November, 2016 by setting aside the order of Chief Judge, CCC, Hyderabad dated 17.08.2016 in EA No. 414 of 2016 in numbering the EPSR No. 10950 of 2016 as EP No. 50 of 2016 and passing the pro-consequential pro-order in EA No. 414 Of 2016 was also set-aside holding the pro- order unsustainable and the very EP as not maintainable by dismissing the same for no enforceable award within the meaning of section 36 of the Arbitration Act to execute the same. And the Operational Creditor did not appeal against the said order before Higher Court and thus the orders passed on 08.11.2016 by Hon'ble High Court of Hyderabad has attained finality, and in turn the Award dated 21.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no jurisdiction to entertain this petition. Therefore on this ground alone, the present Company petition is liable to be dismissed by imposing exemplary costs on Operational Creditor. (2) The erstwhile Andhra Pradesh State Electricity Board which came into existence in 1959 was responsible for Generation, Transmission and Distribution of Electricity. Under Electricity Sector Reforms agenda, the then united Government of Andhra Pradesh promulgated Andhra Pradesh Electricity Reforms Act, 1998. The erstwhile APSEB was unbundled into one Generating Company (APGENCO), One Transmission Company (APTRANSCO) and Four Distribution Companies (APDISCOMs) as part of the reform process. API'RANSCO came into existence on 01-02-1999. From February, 1999 to June 2005 AP'PRANSCO remained as Single buyer in the state-Purchasing power from various Generators and selling it to DISCOMs in accordance with the terms and conditions of the individual PPAs, at Bulk Supply Tariff (BST rates. Subsequently in accordance with the Third Transfer Scheme notified by the united Government of Andhra Pradesh, AP Transco ceased to undertake power trading and has retained powers of controlling system op....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Creditor in respect of invoices Nos. 1 to 57 as hopelessly barred by the provisions of the Limitation Act 1963, and allowed the clairn Nos. 58 to 82, by Orders Dated: Dated : 21- 06-2010. (5) The Operational Creditor being aggrieved by the said Award Dated 21-06-2010 passed by the Council in respect of dismissal of claims/invoices mentioned at Serial Nos. 1 to 57 of the said Award has filed Arbitration Case No. 361 of 2010 before District Court at Chandigarh, for modifying the said Award and allow the original claims filed by it before the Arbitration Council. The said Hon'ble District Court at Chandigarh by Orders Dated: 28-08-2014 has remanded the said case back to the Arbitrator (Council) for fresh decision. Aggrieved by the said Order Dated: 28-08-2014, passed by the District Court at Chandigarh, the Corporate Debtor filed F.A.O No. 10507 of 2015 and other cases before the Hon'ble High Court of Punjab and Haryana, where in the said Hon'ble High Court passed order Dated: 29-01-2016 holding that order of the District Judge, Chandigarh in remanding back the matter to the Council is set aside. As such the order passed by Facilitation Council attained finality ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ef Judge CCC Hyderabad in E.A.No.414 of 2016 in E.P. Sr No. 10950 of 2016 ( which was later numbered as E.P. No. 50 of 2016 ) has filed CRP No. 5334 of 2016 before the Hon'ble High Court of Judicature for the State of Telangana and for the State of Andhra Pradesh and the Hon 'ble High Court at Hyderabad, by Orders Dated: 08-11-2016, has allowed the said CRP and held that "there is no enforceable award to execute under Section 36 of the Arbitration Act from the arbitration proceeding so far as the claim of items I to 57 is concerned for what arbitrator held the claims as barred by law and the objecting court- cum-arbitration court in A.C. No. 361 of 2010 even held not barred by law, did not determine, but for remanded to re-determine in this regard and same was even questioned in review the review petition was dismissed and other side when questioned what was held by the High Court is that remanded is not correct for lack of jurisdiction, thereby practically for re-determination and once it is not re-determined, there is no award and when there is no award, there is no question of execution and when there is no question of execution, there is no question of entertaining the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee under the above said C.E.P. No. 31 of 2017 is not executable. 8. The Operational Creditor has approached the Industrial Facilitation Council at Chandigarh for determination of the amounts in respect of the Invoices Nos. 1 to 57 and also for passing of orders for attaching the current accounts/cash credit accounts or any type of accounts of the C.D herein. The said Council has dismissed the application of the O.C. vide Memo No. TS/HMSEFC/Case No. 3/ 15652-A, Dated: 14-09-2017, holding that the "Council was of view that without determination of the interest amount (for which the Council is not competent as per Advocate General, Haryana), it is not feasible to secure the amount which has not been determined. Further the Arbitration and Conciliation (Amendment) Act, 2015 have prospective effect, not retrospective effect. Therefore, the prayer made by the Applicant for securing the determined amount in dispute in the Arbitration Award is not maintainable 9. The Operational Creditor not satisfying with the said orders/ Awards passed by various forums, has initiated the present proceedings by claiming falsely that Corporate Debtor was due to pay a sum of Rs. till 30-0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....10 passed by the Council. The Operational Creditor has approached this Hon'ble Tribunal with unclean hands by misrepresenting and suppressing the material facts. 13. The Corporate Debtor further submits that the Hon ble Supreme Court in Mobilox innovations Pvt Ltd Vs Kirusa Software Pvt Ltd vide its orders categorically held that where there is no admitted liability or when there is no orders by adjudicating authority, this Hon'ble Court has no jurisdiction to entertain this petition. Therefore on this ground alone, the present c.P(1.B) No.316/HDB/2017 to be dismissed by imposing exemplary costs on the Operational Creditor. They have also relied upon the Hon'ble Supreme Court of India order dated 15.12.2017 in the matter of Macquarie Bank Limited VsShilpi Cable Technologies Ltd in Civil Appeal No. 15135 of 2017. Therefore, it is urged the Tribunal to disrniss the instant Company petition with exemplary Costs. 4. The case was listed for admission on various dates viz., 19.12.2017, 10.01.2018, 12.12.2017, 06.12.2017, 17.01.2018, 21.03.2018, 05.03.2018 and reserved for orders on 06.03.2018. 5. Heard Ms. Asma Raja, Learned Counsel for the Pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mit the case and pass all consequential orders of moratorium etc 6. Shri Dammalapati Srinivas, the Learned Advocate General, has again reiterated various averments made in his counter as adverted supra and also filed written gist of his arguments, which are briefly stated supra. The Learned Senior Counsel, therefore,urged the Tribunal to dismiss the Company petition with costs as it is frivolous and abusing the process of law. 7. The Company petition is filed under the provisions of Section 9 of Insolvency and Bankruptcy Code, 2016. The parameters/ conditions required to be fulfilled for admission or otherwise are dealt with under Section 9 (5) (i) & (ii), which are extracted below: 9 (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application, under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if, - (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute....