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TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 1173
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....ict. The petitioner was a successful bidder of the tender floated by the first respondent and has been entering into power supply agreement with the first respondent to supply power to the first respond ent for a tariff. Besides this, the petitioner has also been supplying power to its shareholders in consonance with the Electricity Act, 2003. (ii) The first respondent's obligation to pay the principal sum, along with interest on the late payments made by the first respondent, was pur suant to the clauses provided in various tenders, viz., Tender No. 14/2011, Tender No. 3/2012, Tender No. 5/2012, Tender No. 6/2014 and Tender No. 7/2015. The petitioner would raise bills for the electricity supplied on a monthly basis to the first respondent. The first respondent would certify these bills and process them for payment. (iii) From the very commencement of the contractual relationship between the petitioner and the first respondent, while the petitioner had been supplying electricity to the first respondent as per the contract, the first respondent was not making the payment on time. Each and every payment was delayed and would be paid even after several months. Further, despite....
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.... on July 5, 2017 however, did not send any reply to the demand notice. Thereafter, the petitioner proceeded to send a statutory notice under the Insolvency and Bankruptcy Code, 2016, demanding a sum of Rs. 251,29,31,781. However, the first respondent did not send any reply for this notice also. (vi) Thereafter, having complied with the necessary requirements under the Code, the petitioner approached the National Company Law Tribunal at Chennai for initiation of the corporate insolvency resolution process against the first respondent. Consequently, three petitions in C. P. No. 554/IB/2017 were filed by the petitioner praying for appointment of an interim insolvency professional and the moratorium period to be declared for the first respondent. The National Company Law Tribunal, Chennai, by order dated September 13, 2017 dismissed the application. Aggrieved over the same, the petitioner filed an appeal before the National Company Law Appellate Tribunal, Delhi to set aside the order of the National Company Law Tribunal dated September 13, 2017. During the pendency of the proceedings before the National Company Law Appellate Tribunal, the peti tioner and the first respondent en....
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....Bankruptcy Code, 2016, before the National Company Law Tribunal, Hyderabad Bench. Further, the petitioner has stated that if the amounts due to the Syndicate Bank are not paid on an urgent basis, in all possibilities, the petitioner would go into the corporate insolvency resolution process because of the attitude of the first respondent in not paying the admitted dues payable to them. (x) As per the order dated September 19, 2018 passed by this court in W. M. P. No. 27811 of 2018 in the present writ petition, the petitioner has withdrawn the writ petitions in W. P. No. 34238 of 2016 on December 20, 2018, W. P. (MD). No. 15248 of 2016 on December 19, 2018, Contempt Petition No. 808 of 2016 on December 20, 2018, W. P. (MD). No. 8765 of 2015 on January 9, 2019 and W. P. (MD). No. 13895 of 2015 on December 21, 2018. In these circumstances, the petitioner has filed the writ petition to issue writ of mandamus to direct the first respondent to pay the sum of Rs. 168,85,00,000 as per the order dated May 29, 2018 of the National Company Law Appellate Tribunal. 3. The brief case of the first respondent is as follows : (i) In the counter filed by the first respondent, it has been stated ....
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....rst respondent has stated that in the minutes of the meeting, it was agreed between the parties to calculate all the dues of the three group companies as one. Further, in the additional affidavit, the first respondent has stated that a total sum of Rs. 152.91 crores is due and payable by the Ind Barath Group Companies. 4. Heard Mr. P. Chidambaram, learned senior counsel appearing for Mr. Anirudh Krishnan, learned counsel appearing for the petitioner and Mr. Vijay Narayan, the learned Advocate General for Mr. N. Damodaran, the learned Standing Counsel appearing for the first respondent. 5. Mr. P. Chidambaram, learned senior counsel appearing for the petitioner submitted that as per clause 9 of the minutes of the meeting dated May 24, 2018 it was agreed upon between the first respondent and Ind Barath that in lieu of the payment, the release of which is subject to the orders of the hon'ble High Court of Madras and other courts, all the cases filed by the appellant-companies against TANGEDCO and pending before the hon'ble High Court of Madras, hon'ble National Company Law Appellate Tribunal, civil courts and any other forum, shall be withdrawn by them and therefore, lear....
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....jor portion of the income depends on the clearance of the payments from the first respondent. From the year 2016, the first respondent had stopped making payments to the petitioner, hence, the petitioner approached the National Company Law Tribunal to start corporate insolvency resolution process against the first respondent, however, the National Company Law Tribunal dismissed the petition. Aggrieved over the same, the petitioner filed an appeal before the National Company Law Appellate Tribunal, where a settlement was reached between the parties and a minutes of the meeting dated May 24, 2018 was also entered into and the same was recorded in the order of the National Company Law Appellate Tribunal dated May 29, 2018. The order passed by the National Company Law Appellate Tribunal dated May 29, 2018 is extracted below : "Order May 29, 2018 : Learned counsel for the appellant submits that the parties have settle the dispute. A copy of the minutes of the 6th meet ing held in PWD Conference Hall, Energy Department, Fort St. George, Chennai on May 24, 2018 has been produced which reads as follows : Minutes of the 6th meeting held in PWD Conference Hall, Energy Department, Fort ....
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....Barath Powergencom Ltd., until the issue is resolved by the hon'ble High Court, Madras. (4) In this regard TANGEDCO sought from Ind Barath all the prohibitory orders covered under various proceedings and pending before all the courts in India, wherever the same have been filed, so as to bring them on record in respect of the three appellants, viz., M/s. Arkay Energy (RMM) Ltd., M/s. Ind Barath Thermal Power Ltd., and M/s. Ind Barath Powergencom Ltd., by way of an affidavit as part of account statements. (5) M/s. Ind Barath, having concurred to calculate the dues for all its three appellant-companies, upon reconciliation, it was agreed by both parties that the pending bills towards power purchase (including compensation charges) in respect of the three companies in all works out about Rs. 124 crores. It was also pointed out by TANGEDCO that there are certain recoveries to be made, some of which are covered under the court cases, and include receivables by TANGEDCO on account of current consumption charges, as well as likely excess pay ments made to Ind Barath that have been pointed out by auditors, to the extent of about Rs. 101 crores. Pending reconciliation with the audit,....
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.... are prohibitory orders in suits filed by M/s. IL and FS, M/s. Adani, M/s. Sakthi Energy before the hon'ble High Court of Madras and suits filed in the City Civil Court, Hyderabad and Indore. It is also to be noted that the hon'ble High Court of Madras has ordered TANGEDCO to deposit a sum of Rs. 13 crores in an application filed under section 9 of the Arbitration Act by M/s. Karam Chand Thapar. All these orders need to be taken into account before making any releases to Ind Barath. (9) During the meeting it was agreed upon between TANGEDCO and Ind Barath that in lieu of the above payment, the release of which is subject to orders of the hon'ble High Court of Madras and other courts, all the cases filed by the appellate-companies against TANGEDCO and pending before the hon'ble High Court of Madras, hon'ble National Company Law Appellate Tribunal, civil courts and any other forum, shall be withdrawn by them. Without prejudice to the contentions of TANGEDCO, the final amount so arrived after reconciliation between the parties will not attract any interest, simple or compound, from the date of crystallization of the total amount payable by TANGEDCO to the appella....
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....nt, the release of which is subject to the orders of this court and other courts, all the cases filed by the appellant-companies against TANGEDCO-the first respondent and pending before this court, National Company Law Appellate Tribunal and other civil courts shall be withdrawn by them and without prejudice to the contentions of TANGEDCO, the final amount so arrived after conciliation between the parties will not attract any interest, simple or compound, from the date of crystallization of the total amount payable by TANGEDCO to the appellant-companies. 9. It is pertinent to note that on May 29, 2018 when the National Company Law Appellate Tribunal disposed of the appeals, learned senior counsel appearing on behalf of the first respondent-TANGEDCO submitted that in view of the terms and conditions of the agreement dated May 24, 2018 the appellants, viz., Arkay Energy (Rameswarm) Ltd., Ind Barath Thermal Power Ltd., and Ind Barath Powergencom Ltd., are required to withdraw the appeal and he also handed over an account payee cheque dated May 28, 2018 for Rs. 40,00,00,000 issued in the name of Arkay Energy (Rameswarm) Ltd. (the petitioner herein) drawn on State Bank of India, Commer....
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....(MD). No. 14423 of 2016 11-1-2019 2. W. P. No. 34238 of 2016 20-12-2018 3. W. P. No. 22364 of 2017 10-1-2019 4. W. P. No. 11228 of 2017 The petitioner has been arrayed as respondent in the said matter 5. W. P. No. 25357 of 2010 The petitioner has been arrayed as respondent in the said matter 6. W. P. No. 25245 of 2010 The petitioner has been arrayed as respondent in the said matter 7. W. P. No. 25248 of 2010 The petitioner has been arrayed as respondent in the said matter 8. W. P. No. 30037 of 2010 The petitioner has been arrayed as respondent in the said matter 9. W. P. No. 25247 of 2010 The petitioner has been arrayed as respondent in the said matter 10. W. P. No. 11194 of 2017 28-2-2019 11. W. P. (MD) No. 8765 of 2015 9-1-2019 12. W. P. (MD) No. 13895 of 2015 21-12-2018 13. W. P. No. 38082 of 2016 25-9-2019 14. W. P. No. 35548 of 2016 25-9-2019 15. W. P. No. 18675 of 2017 19-9-2019 16. W. P. No. 28289 of 2013 29-4-2019 17. W. P. No. 35547 of 2016 25-9-2019 18. W. P. No. 28291 of 2013 29-4-2019 19. W. P. No. 13723 of 2016 27-2-2019 20. W. P. No. 14426 of 2016 27-2-2019 21. W. P. No. 28290 of 2013 29-4-2019 22. W. P. (....