TaxTMI 
TaxTMI 
2019 (8) TMI 784
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....: a. Direct ONGC to supply/continue to supply natural gas to the Corporate Debtor in terms of the Gas Supply Agreement dated 19.04.2017 executed between ONGC and the Corporate Debtor, till completion of CIRP; b. Pass an ex-parte ad interim order directing ONGC to restore supply of natural gas to the Corporate Debtor with immediate effect; c. Direct ONGC to withdraw its letters/emails dated 23.03.2019, 29.03.2019 and 09.04.2019 or alternatively stay the operation of ONGC's letters/email dated 23.03.2019, 29.03.2019 and 09.04.2019 issued under Article 24.01 of the GSA; d. Direct ONGC to withdraw its emails dated 01.05.2019, 02.05.2019, 06.05.2019, 08.05.2019 and 10.05.2019 or alternatively stay the operation of ONGC's e-mails dated 01.05.2019. 02.05.2019, 06.05.2019, 08.05.2019 and 10.05.2019; e. Direct ONGC to file relevant claim, if any, relating to period prior to insolvency commencement date i.e. 27.03.2019; f. Pass any such order or direction that this Hon'ble Tribunal may deem fit in light of the facts and circumstances of the case. 2. The grievance set out in the Application is that the Corporate debtor on 19....
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....ral gas to the Corporate Debtor till completion of CIRP 4. Over which, Rl (ONGC) Counsel placed legal proposition stating that supply of Natural Gas by Rl will not fall within the ambit of essential supplies as contemplated u/s Section 14 of IBC r/w Regulation 32 of CIRP, thereby this application is liable to be dismissed in limine. 5. On hearing the submissions of either side, it is evident that to file an application u/s 60 (5) of the Code before Adjudicating Authority or under any provision of law before any court of law, the person filing Application shall be aggrieved. For a person to be aggrieved, aggrieved party can be any person whose financial, personal, or property rights or interests are adversely affected by an act of another or an order, judgment or statute. An aggrieved party is entitled to challenge the adverse decisions. Therefore an aggrieved person alone is entitled to file application u/s 60(5) of IBC. 6. Now it is to be seen that what interest of the corporate debtor is affected by R1. Since cause of action being the action to file an application, this applicant is bound to show that disconnection of supply of Gas by Rl is in violation of provision of l....
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....gulation 32 of CIRP Regulations, it is clear that supply of electricity, water, telecommunication services and information technology services will amount to essential supplies only when such supply is not used as direct input to the output produced or supplied by the Corporate Debtor. Here it is not the case of the debtor that Gas Supply by R1 falls within the definition of essential supply as defined under Regulation 32 of CIRP Regulations. 12. When it has been put to the counsel arguing on behalf of the Applicant as to how supply of Gas to the Corporate Debtor by R1 amounts to essential supply, the counsel, namely Shri. Vinod Kumar is fair and candid enough to say that the supply of gas by Rl to the Corporate Debtor will not fall within the ambit of Regulation 32 because it is a fact that supply of gas is requisite input to get an output to be produced by the Corporate Debtor, therefore Regulation 32 is of no help to the Applicant herein. It is appreciating that the Corporate Debtor counsel has candidly accepted the legal proposition reflected in Section 14 (2) of the Code r/w Regulation 32 of CIRP Regulations. 13. May be, it is true that if at all gas supply is stopped by....
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..... When I have dictated this order, the counsel appearing on behalf of the Applicant has made another plea stating that this Bench may record that it is open to ONGC to consider the request of the Corporate Debtor after the CoC meeting which is scheduled to be held on 16.05.2019. 19. As to this aspect, with all humility I state that when this Authority has no subject matter jurisdiction to exercise over the issue impugned, how this Bench could pass an order directing R1 to consider the request of the Corporate Debtor. I am of the considered view that this Authority has no discretion to direct Rl to consider the request of the CoC because this Authority is devoid of subject matter jurisdiction to pass orders on the reliefs sought by the Applicant. 20. Though it is not a point that will have bearing on the issue decided above, it is supplemental to say what would be the effect in case an order is passed against Rl (ONGC). As to passing an order transgressing the jurisdictional boundaries looking at the moorings, such as the concept of going concern or maximisation of value of the asset of the Corporate debtor, it is not only doing violence to the legitimate rights of others, who....
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....ion of law always prevail over summation given in the preamble. Therefore maximisation of value of assets does not mean it is a free ride given to RP or for that matter to CoC to militate against the interest and rights of others. Harmonisation of laws is hallmark of jurisprudence but not militancy against each other. So far I have not come across any judgement by Honourable Supreme Court holding that a mandate is given to this Authority to direct against the parties to compromise on its rights and interest so as to benefit the corporate debtor especially when such party is not obligated under this Code. Therefore, the concept of maximisation of value, I believe, is related to the time lines given in the Code, to achieve the same, calm period i.e., Moratorium is carved out in Section 14 of the Code. Speed is the essence of this Code. 25. As to the concept of going concern, though nothing has been said about it in the Preamble, RP and CoC are shouldered with responsibility to keep a going concern as going concern. It is by taking up the responsibility of management upon themselves and raising interim finance to keep it as going concern. There also feasibility is left to RP and Co....