w w w . L a w y e r S e r v i c e s . i n



In the Matter of: M/s. Asian Wind Energy Private Limited v/s M/s. Santha Spinning Mills Private Limited


Company & Directors' Information:- H-ENERGY PRIVATE LIMITED [Active] CIN = U40300MH2007PTC175626

Company & Directors' Information:- R. S. INDIA WIND ENERGY PRIVATE LIMITED [Active] CIN = U40101HR2006PTC049781

Company & Directors' Information:- K. P. WIND PRIVATE LIMITED [Active] CIN = U29299MH1998PTC116275

Company & Directors' Information:- K K P SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1993PTC004731

Company & Directors' Information:- A A ENERGY LIMITED [Active] CIN = U40100MH2005PLC157604

Company & Directors' Information:- N R U SPINNING MILLS LIMITED [Active] CIN = U17111TZ1994PLC005591

Company & Directors' Information:- K M ENERGY PRIVATE LIMITED [Active] CIN = U40300UP2014PTC067293

Company & Directors' Information:- R G SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2004PTC011274

Company & Directors' Information:- J P P MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2003PTC010491

Company & Directors' Information:- R. R. ENERGY LIMITED [Active] CIN = U40109CT2004PLC016580

Company & Directors' Information:- ASIAN MILLS PRIVATE LIMITED [Active] CIN = U27100GJ1993PTC019124

Company & Directors' Information:- P K P N SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1981PTC001034

Company & Directors' Information:- ENERGY INDIA CORPORATION LIMITED [Strike Off] CIN = U40101MH2008PLC181157

Company & Directors' Information:- B & S ENERGY PRIVATE LIMITED [Active] CIN = U40108KA2008PTC048416

Company & Directors' Information:- K R V SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1990PTC002716

Company & Directors' Information:- V R SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1979PTC000836

Company & Directors' Information:- K A S SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1990PTC002955

Company & Directors' Information:- V M D MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC004822

Company & Directors' Information:- P S G SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC005234

Company & Directors' Information:- A R C MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC004845

Company & Directors' Information:- C P SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC005257

Company & Directors' Information:- S AND Y MILLS LIMITED [Not available for efiling] CIN = U17111TZ1994PLC005460

Company & Directors' Information:- D C MILLS PRIVATE LIMITED [Active] CIN = U25199KL1996PTC009988

Company & Directors' Information:- N S C SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2004PTC011093

Company & Directors' Information:- R A MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2006PTC013248

Company & Directors' Information:- K T SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1990PTC002678

Company & Directors' Information:- J G SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1991PTC011033

Company & Directors' Information:- M. E ENERGY PRIVATE LIMITED [Active] CIN = U51503PN1998PTC114226

Company & Directors' Information:- S P SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1979PTC000862

Company & Directors' Information:- K ENERGY COMPANY LIMITED [Active] CIN = U40100CT2007PLC020433

Company & Directors' Information:- SANTHA SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2001PTC009709

Company & Directors' Information:- J G SPINNING MILLS PRIVATE LIMITED [Not available for efiling] CIN = U18101WB1991PTC050845

Company & Directors' Information:- M B S SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1994PTC005005

Company & Directors' Information:- R D SPINNING MILLS LIMITED [Active] CIN = U17115PB1989PLC009763

Company & Directors' Information:- U R ENERGY (INDIA) PRIVATE LIMITED [Active] CIN = U40108GJ2011PTC067834

Company & Directors' Information:- J M MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2006PTC013113

Company & Directors' Information:- T K S SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1988PTC002117

Company & Directors' Information:- B & G ENERGY PRIVATE LIMITED [Active] CIN = U40107TN2006PTC061362

Company & Directors' Information:- K P M SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1995PTC006011

Company & Directors' Information:- S P S WIND ENERGY PRIVATE LIMITED [Active] CIN = U40108TZ2004PTC011430

Company & Directors' Information:- M T A MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1989PTC003048

Company & Directors' Information:- J C I ENERGY PRIVATE LIMITED [Converted to LLP] CIN = U40102KA2011PTC058550

Company & Directors' Information:- ENERGY INDIA LIMITED [Strike Off] CIN = U74899DL1998PLC096211

Company & Directors' Information:- J. C. SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17121TG2011PTC073799

Company & Directors' Information:- P A MILLS INDIA LTD. [Not available for efiling] CIN = U17111TN1990PLC019762

Company & Directors' Information:- R R R SPINNING MILLS INDIA PRIVATE LIMITED [Active] CIN = U17111TZ1990PTC002745

Company & Directors' Information:- K N M MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1990PTC002702

Company & Directors' Information:- G P M SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17110PB2005PTC028070

Company & Directors' Information:- R R SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1980PTC000984

Company & Directors' Information:- B B S M SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1990PTC002914

Company & Directors' Information:- P A SPINNING MILLS PVT. LTD. [Not available for efiling] CIN = U17111TN1989PTC018288

Company & Directors' Information:- V M MILLS PRIVATE LIMITED [Active] CIN = U17111TZ2005PTC011763

Company & Directors' Information:- M K G SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17115TZ1990PTC002952

Company & Directors' Information:- INDIA ENERGY PRIVATE LIMITED. [Strike Off] CIN = U74899DL2000PTC103993

Company & Directors' Information:- M S SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17219PB1995PTC017064

Company & Directors' Information:- V ENERGY PRIVATE LIMITED [Active] CIN = U40102TG2011PTC073693

Company & Directors' Information:- N G SPINNING MILLS PVT LTD [Active] CIN = U21010GJ1981PTC004505

Company & Directors' Information:- A A K. SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1995PTC005766

Company & Directors' Information:- S. S. MILLS PRIVATE LIMITED [Active] CIN = U24231GJ1988PTC010885

Company & Directors' Information:- G M MILLS PRIVATE LIMITED [Active] CIN = U51900MH1999PTC122189

Company & Directors' Information:- S M M ENERGY PRIVATE LIMITED [Active] CIN = U40109TG2014PTC092679

Company & Directors' Information:- G P G SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TN1987PTC014844

Company & Directors' Information:- E A P SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ2005PTC011782

Company & Directors' Information:- C & C ENERGY PRIVATE LIMITED [Active] CIN = U29299DL2010PTC204724

Company & Directors' Information:- U S G ENERGY PRIVATE LIMITED [Active] CIN = U29307TZ2005PTC012414

Company & Directors' Information:- N S K SPINNING MILLS PRIVATE LIMITED [Under Process of Striking Off] CIN = U17111TZ1994PTC004816

Company & Directors' Information:- A B T ENERGY PRIVATE LIMITED [Active] CIN = U40108KA1983PTC005321

Company & Directors' Information:- R B MILLS PVT LTD [Active] CIN = U15141AS1949PTC001939

Company & Directors' Information:- A & T ENERGY PRIVATE LIMITED [Strike Off] CIN = U40106GJ2012PTC070207

Company & Directors' Information:- R N WIND ENERGY PRIVATE LIMITED [Active] CIN = U70102HR2007PTC036689

Company & Directors' Information:- R. A. SPINNING MILLS PVT LTD [Strike Off] CIN = U17115PB1988PTC008852

Company & Directors' Information:- K P K SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1961PTC000431

Company & Directors' Information:- ASIAN WIND ENERGY PRIVATE LIMITED [Active] CIN = U40104TN2012PTC087084

Company & Directors' Information:- M. S. WIND MILLS PRIVATE LIMITED [Active] CIN = U40108TZ2013PTC019243

Company & Directors' Information:- K E ENERGY PRIVATE LIMITED [Strike Off] CIN = U40300TN2011PTC080288

Company & Directors' Information:- H K SPINNING MILLS PVT LTD [Active] CIN = U17111PB1986PTC006672

Company & Directors' Information:- A V S SPINNING MILLS INDIA PRIVATE LIMITED [Strike Off] CIN = U17111TZ2004PTC011275

Company & Directors' Information:- V A R ENERGY INDIA PRIVATE LIMITED [Strike Off] CIN = U40300TG2014PTC095926

Company & Directors' Information:- C & N ENERGY PRIVATE LIMITED [Strike Off] CIN = U40100KL2011PTC028837

Company & Directors' Information:- K S SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17299HR2021PTC092277

Company & Directors' Information:- O P K SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17120DL1988PTC032165

Company & Directors' Information:- P N M SPINNING MILLS PVT LTD [Strike Off] CIN = U17111TN1981PTC008870

Company & Directors' Information:- J K K SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1981PTC001085

Company & Directors' Information:- R K SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17100KA1995PTC018864

Company & Directors' Information:- M K D ENERGY PRIVATE LIMITED [Active] CIN = U31908UP2015PTC070501

Company & Directors' Information:- B T MILLS PRIVATE LIMITED [Active] CIN = U18101MH1997PTC109479

Company & Directors' Information:- C I T L ENERGY PRIVATE LIMITED [Strike Off] CIN = U40108TG2010PTC066844

Company & Directors' Information:- C R B ENERGY PRIVATE LIMITED [Active] CIN = U40108TG2010PTC066845

Company & Directors' Information:- T R MILLS PRIVATE LIMITED [Active] CIN = U17111KA1954PTC000799

Company & Directors' Information:- MATTER ENERGY PRIVATE LIMITED [Active] CIN = U31905GJ2020PTC118233

Company & Directors' Information:- J S ENERGY PRIVATE LIMITED [Active] CIN = U45202HP2006PTC030006

Company & Directors' Information:- T V G ENERGY PRIVATE LIMITED [Strike Off] CIN = U52100UP2014PTC066243

Company & Directors' Information:- J K MILLS LTD [Strike Off] CIN = U17200WB1946PLC013603

Company & Directors' Information:- G G ENERGY PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC058590

Company & Directors' Information:- G M MILLS PRIVATE LIMITED [Amalgamated] CIN = U18101MH2003PTC138487

Company & Directors' Information:- V G ENERGY PRIVATE LIMITED [Strike Off] CIN = U40100MH2005PTC156544

Company & Directors' Information:- D R R ENERGY PRIVATE LIMITED [Active] CIN = U40102TN2009PTC073741

Company & Directors' Information:- Q - ENERGY PRIVATE LIMITED [Strike Off] CIN = U74920WB2012FTC182047

Company & Directors' Information:- J K R SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1995PTC006781

Company & Directors' Information:- H R ENERGY PRIVATE LIMITED [Strike Off] CIN = U40101RJ2003PTC018712

Company & Directors' Information:- J R J R ENERGY PRIVATE LIMITED [Strike Off] CIN = U40100MH2005PTC153641

Company & Directors' Information:- R M ENERGY PRIVATE LIMITED [Strike Off] CIN = U40108MH2003PTC142881

Company & Directors' Information:- S V E ENERGY PRIVATE LIMITED [Active] CIN = U40100TN2009PTC073738

Company & Directors' Information:- L V S ENERGY PRIVATE LIMITED [Under Process of Striking Off] CIN = U40101TG2010PTC068290

Company & Directors' Information:- A. S. R. ENERGY PRIVATE LIMITED [Strike Off] CIN = U40105TG2008PTC056907

Company & Directors' Information:- S S E ENERGY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U40108TG2014PTC093709

Company & Directors' Information:- K & H ENERGY PRIVATE LIMITED [Strike Off] CIN = U40109AP2012PTC079162

Company & Directors' Information:- P & S ENERGY PRIVATE LIMITED [Strike Off] CIN = U40109TG2011PTC072632

Company & Directors' Information:- P A ENERGY PRIVATE LIMITED [Strike Off] CIN = U40100HP2006PTC030328

Company & Directors' Information:- S & G ENERGY PRIVATE LIMITED [Strike Off] CIN = U31101CH2010PTC032133

Company & Directors' Information:- P M S ENERGY INDIA PRIVATE LIMITED [Active] CIN = U74999DL2012PTC236645

Company & Directors' Information:- D M ENERGY PRIVATE LIMITED [Strike Off] CIN = U40107DL2010PTC199110

Company & Directors' Information:- S K S ENERGY PRIVATE LIMITED [Strike Off] CIN = U40108DL2003PTC119741

Company & Directors' Information:- C P ENERGY PRIVATE LIMITED [Strike Off] CIN = U40109DL2010PTC204395

Company & Directors' Information:- 3 A S ENERGY PRIVATE LIMITED [Strike Off] CIN = U40300DL2013PTC250263

Company & Directors' Information:- I S R ENERGY PRIVATE LIMITED [Under Process of Striking off] CIN = U40103AP2012PTC084585

Company & Directors' Information:- T AND F ENERGY PRIVATE LIMITED [Active] CIN = U40100MP2011PTC026065

Company & Directors' Information:- V V ENERGY PRIVATE LIMITED [Active] CIN = U40101KA2008PTC046429

Company & Directors' Information:- E P C ENERGY PRIVATE LIMITED [Strike Off] CIN = U40107KA2010PTC053645

Company & Directors' Information:- R J ENERGY PRIVATE LIMITED [Active] CIN = U40100GJ2009PTC056990

Company & Directors' Information:- I ENERGY PRIVATE LIMITED [Active] CIN = U40100GJ2009PTC058473

Company & Directors' Information:- P. D. R. SPINNING MILLS PRIVATE LIMITED [Strike Off] CIN = U17112AP2006PTC052124

    CP. No. 1397/IB of 2018

    Decided On, 14 March 2019

    At, National Company Law Tribunal Chennai

    By, THE HONOURABLE MR. B.S.V. PRAKASH KUMAR
    By, JUDICIAL MEMBER & THE HONOURABLE MR. S. VIJAYARAGHAVAN
    By, TECHNICAL MEMBER

    For the Operational Creditor: Shobhana Krishnan, Advocate. For the Corporate Debtor: T.K. Bhaskar, Adithya Reddy, Advocates.



Judgment Text

B.S.V. Prakash Kumar, Judicial Member.

1. It is a Company Petition filed u/s 9 of the Insolvency & Bankruptcy, 2016 (“the Code”), the story line in this case is the Petitioner has come before this Bench stating that since the Corporate Debtor (the debtor) has not utilized the power as stated in the letter dated 23.02.2015, the Corporate Insolvency Resolution Process shall be initiated against the debtor.

2. In the backdrop of the facts available on record, it is evident that this Petitioner and the Debtor entered into Power Purchase Agreement (PPA) dated 24.09.2012 for supply of 20,00;000 units of power per year by the Petitioner to the Corporate Debtor. In this PPA, it has also been mentioned that initial thermal Power Purchase Agreement was for a period of five years from the Commencement of Date (COD) of the project. This PPA commenced on 24.09.2012 meaning thereby it would come to end on 23.09.2017. In this PPA, it is very clear in Clause 6.1 that “the Power Producer (Petitioner) shall endeavour to supply the contracted quantity to the User Member (Corporate Debtor) as per Clause 4.2 and total generation of power is estimated approximately 20,00,000 units per year”.

3. The debtor has also taken us to Clause 6.5 stating that “the parties shall have the right to mutually agree on any additional supply of power to the User Member (Corporate Debtor) over and above the contracted quantity in accordance with Applicable Laws”.

4. Besides this, the Corporate Debtor has simultaneously taken us to another Clause 20.8 stating that “if at all any amendment is to be made to this PPA dated 24.09.2012; it has to be amended only with the written consent of both the parties”.

5. As to the payment of monthly bills, the Corporate Debtor has taken us to other Clauses 12.1.1 and 12.1.2 stating that “the Power Producer (Petitioner) shall raise bill on monthly basis for the quantity of energy found adjusted at User Member (Corporate Debtor) and current consumption charges bill for each month / billing period and the Power Producer (Petitioner) shall send this bill to the designated office of the User Member”.

6. Since this Petitioner has raised this claim basing on a letter sent by the Petitioner to the Debtor on 23.02.2015, we have ascertained that this Petitioner sent a letter dated 23.02.2015 informing the power purchase price changed to 26.54 per unit upto 20,00,000 units.

7. In addition to it, the Petitioner has mentioned the subscription of share value of Rs.40,000/- (4400 shares of Rs.10 each) with effect from 01.04.2015. As per the PPA, Clauses 4.2 and 4.3 and all other clauses have been changed. It has been further noted in this letter about generation/distribution of power, percentage will be increased from 4.81% to 15.38% and the supply of 20,00,000 units of the total capacity has been changed to 60,00,000 units with increase of 40,00.000 units.

8. If this letter is set against the PPA dated 24.09.2012, as per the written understanding between the parties, it shall be amended in writing with the consent of the parties for change of supply of power or any other information or material effected in respect to the transaction between the Petitioner and the Debtor. Here the point to be remembered is this Petitioner has claimed for units not consumed solely on the strength of the letter dated 23.02.2015 unilaterally written by the petitioner to the debtor communicating limit has been increased to 60,00,000 units.

9. As to when this Bench has asked this Petitioner as to whether any consent was given by the Debtor for increasing supply to 60,00,000 units, this Petitioner has failed to show any material disclosing the Debtor agreeing for supply over and above 20,00,000 units as envisaged in the letter dated 23.02.2015. When no such intimation of extending the supply limit to 60,00,000 has been accepted, or no agreement has been entered into between the parties, the letter dated 23.02.2015 cannot be assumed as an agreement between the parties entitling this Petitioner to make a demand for payment to the units that have not been utilized by the Corporate Debtor. The twist here is in case capacity limit is increased then if the consumer has failed to utilize it to its full capacity, then the consumer would be under obligation to pay even to unbanked units within the limit, therefore one sided letter cannot create an obligation, more so to the unbanked units.

10. To fortify the argument of the Debtor, the counsel has taken us to other material showing that since this Petitioner was not in a position to supply the energy as much as required by the Debtor, it has intimated to this Petitioner on 09.03.2017 stating that the Debtor intended to terminate the contract between the Petitioner and the Debtor on completion of the term of five years reflected in the PPA dated 24.09.2012. The Debtor Counsel has disclosed that as to the account in between the creditor and debtor, it is showing as NIL balance as on 10.10.2017. Of course, it is not even the case of the Petitioner that the Debtor has not paid towards the power already consumed by it.

11. Since there is no definite agreement or at least any indication reflecting the Debtor agreeing to avail 60,00,000 units per year, this Bench, merely by seeing a letter dated 23.02.2015 and the payment advice dated 19.10.2017 with payment back dated bill i.e., dated 04.09.2017,cannot assume that that this debtor is liable to pay to the power that has not been consumed by it.

12. In furtherance, the Debtor counsel has further adverted stating that since this PPA in fact came to end on 23.09.2017, the Petitioner being fully aware that the Debtor would not utilize the services of the Petitioner any more, this Petitioner has set up this case by sending this letter on 19.10.2017 by generating payment advice with ante dated bill i.e., 04.09.2017. By the time this letter sent by the petitioner, the term, of five years as stated in the PPA was already over.

13. The Corporate Debtor counsel has also stated that this Petitioner has failed to place any material showing that the Debtor was required to pay towards unutilized banked unit charges at any point of time before the letter dated 19.10.2017. Therefore merely by saying through a letter from the side of the petitioner, it cannot be subscribed that the debtor has agreed to the offer made by this Petitioner on 23.02.2015, therefore this payment advice sent to the Corporate Debtor on 19.10.2017 will not rise any obligation upon the debtor to honour the payment advice raised by the Petitioner.

14. While dictating this order in the open court, this Petitioner counsel has brought our attention to Clause 6.2 which is as below;

“6.2 The User Member shall plan its off take so as to ensure that it consumes power as per obligation, on cumulative basis, at the end of every year at least 80% of the Power contracted during that year, which works out to 16.00 Lacs units per year in case of full capacity genera

Please Login To View The Full Judgment!

tion of power producer”. 15. On looking at Clause 6.2, we are of the view that this Clause will kick into action only when there is an agreement between the parties for consumption of power. As long as agreement is not entered into between the parties for consuming 60,00,000 units, this clause will not have any relevance to adjudicate this case, thereby we hereby hold that this clause will not have any bearing on the claim raised by the Petitioner as there is no agreement between the parties obligating the Corporate Debtor to consume 60,00,000 units per year. 16. Henceforth, looking at the documents and contentions of either side, we have not found existence of debt as claimed by the petitioner, therefore this Company Petition is hereby dismissed as misconceived.
O R