TaxTMI 
TaxTMI 
2020 (10) TMI 492
X X X X Extracts X X X X
X X X X Extracts X X X X
.... b. That by virtue of Bulk Power Transmission Agreement (BPTA) dated 24.02.2010, Long Term Transmission Access was granted to the Corporate Debtor under applicable provisions of Electricity Act, 2003 read with applicable Regulations as under: i. CERC (Sharing of Inter-State Transmission Charges and Losses) Regulations - 2010 (hereinafter referred to as "Sharing Regulations") ii. CERC (Grant of Connectivity Long Term Access and Medium Term Open Access in Inter-State related matters) Regulations - 2009 (hereinafter referred to as "Connectivity Regulations") iii. CERC (Open Access in Inter-State Transmission) Regulations - 2008 (hereinafter referred to as "Open Access Regulations"). c. That the Corporate Debtor has defaulted on a number of occasions with respect to the opening of the Letter of Credit as payment security mechanism and payment of Transmission Charges. Due to defaults of the Corporate Debtor, its Bank Guarantee was sought to be invoked by the Applicant. The Petition No. 127/MP/2016 was filed by the Corporate Debtor (Petitioner therein) against the Applicant (The Respondent therein), whereby order dated 26.04.2018 was passed by the Hon&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on. j. That since the Corporate Debtor was a party to the proceedings before the CERC as per Petition No. 92/MP/20l5 it was fully aware of liability which had accrued but was not yet determined pending disposal of the said petition. The Corporate Debtor was also aware of the notification dated 20.05.2019 issued subsequently on the website of the Applicant (as per the directions of the CERC in the above said petition) as it was affected by the same along with similarly placed other Generating Companies which were also notified in the same manner. k. That despite the specific knowledge of the Corporate Debtor having liability of Relinquishment Charges under the provisions of Electricity Act, 2003 the Resolution Professional in terms of List of Creditors as updated upto 26.09.2019 has not accounted for the said claims of the Applicant on account of Relinquishment Charges. l. That as per Item No. 42 of the said List of Creditors, the Resolution Professional has only taken into account the Transmission Charges of Rs. 20125.89 Lacs and has ignored the balance claim of Rs. 1928 Lacs which was notified to the Corporate Debtor vide aforesaid notification of 20.05.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he respondent No. 1 does not come in conflict with the IBC because the Resolution Plan clearly recognizes sub judice claims like that of respondent No. 1 and it indicates that where the dues against the corporate debtor are yet to be crystallized, the payment of such dues would be subject to result of such proceedings, like the suit filed by the respondent No. 1 in the present case and a corpus of Rs. 1200 Crore stands set apart under the resolution plan for satisfaction of such dues of operational creditors like respondent No. 1." V. Because the proposed Resolution Plan is in complete disregard to the ratio of the Judgment of Bombay High Court in Tata Steel BSL Ltd (as above) whereby the indicated claims against the Corporate Debtor, were not considered by the RP by giving effect to the consequences of the BPTA which was placed before the RP by the Appellant. VI. The Resolution Plan as proposed is violative of the ratio of the Hon'ble Supreme Court in the matter of Swiss Ribbons Pvt. Ltd. & Anr. Vs. Union of India & Ors. (2019) 4 SCC 17, VII. The RP has failed to take into account that while the Appellant had given the details of the LTA as per the F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the RP, by way of the present Application. The purported claim for Relinquishment Charges ought not to be considered by this Adjudicating Authority in absence of any claim filed with the RP in the manner prescribed under the provisions of the Code read with the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ("CIRP Regulations") within the specified time. f. As noted above, the purported claim of Rs. 192,80,00,000/-towards Relinquishment Charges made vide letter dated November 15, 2019 has been made for the first time only on November 15, 2019, i.e., after the IA 882 for approval the resolution plan was already reserved for orders by this Adjudicating Authority. g. There being no 'Claim Form' for the purported claim for the Relinquishment Charges, it is submitted that under the provisions of the Code and the CIRP Regulations, the RP does not have any power to accept any further claims subsequent to the approval of the Resolution Plan by the members of the COC. h. The said position has been made clear by the Mumbai Bench of the Honble Adjudicating Authority (i.e. the Hon'ble ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herein above, while the Applicant has complied with such provisions of the Code and the CIRP Regulations in respect of its initial Claim Amount, the Applicant has not complied with the same in respect of the claim for purported Relinquishment Charges. m. As such, the Applicant cannot make an argument that sufficient notice was given by the Applicant to the RP by uploading the Notice on the website of the Applicant with regard to its claim for relinquishment charges. It was only vide letter dated November 15, 2019 that the Applicant for the first time brought up his claim for the relinquishment charges. n. In any case, it is pertinent to mention that even in accordance with the CERC Order dated March 08, 2019, the obligation of the Corporate Debtor to pay the Relinquishment Charges to the Applicant would arise only after the Applicant has issued the bill on the Corporate Debtor. o. It is further submitted that in the resolution plan, the Resolution Applicant has made appropriate provisions for dealing with the claims of the 'operational creditors', including that of the Applicant which may arise on account of CERC Order and such others which may no....