Madras High Court
Arkay Energy (Rameswarm) Limited vs Tamil Nadu Generation & Distribution on 21 December, 2018
Author: M. Duraiswamy
Bench: M.Duraiswamy
W.P.No.23856 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.12.2020
DELIVERED ON : 05.01.2021
CORAM :
The HON'BLE MR.JUSTICE M.DURAISWAMY
W.P.No.23856 of 2018
and W.M.P.No.27811 of 2018
Arkay Energy (Rameswarm) Limited
rep by its Authorized Signatory T.S.Das
No.20, Old No.129, Chamiers Road,
Nandanam, Chennai – 600 035. .. Petitioner
Vs.
1.Tamil Nadu Generation & Distribution
Company Limited (TANGEDCO),
rep by its Chief Financial Controller,
No.144, Anna Salai, Chennai – 600 002.
2.Sudip Bhattacharya
(Resolution Professional for
IndBarath Thermal Power Ltd.,)
3.Anish Nanavaty
(Resolution Professional for
IndBarath Powergencom Ltd.,) .. Respondents
(R2 & R3 – suo motu impleaded vide order dated 21.12.2018)
Petition filed under Article 226 of the Constitution of India praying
for issue of Writ of mandamus directing the respondent to pay a sum of
Rs.168,85,00,000/- (Rupees one hundred and sixty eight crores and eighty
five lakhs only) being the sum admitted as payable to the petitioner vide
minutes of meeting dated 24.05.2018 which was recorded vide order of the
National Company Law Appellate Tribunal vide order dated 29.05.2018.
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W.P.No.23856 of 2018
For Petitioner : Mr.P.Chidambaram, Senior Counsel
for Mr.Anirudh Krishnan
For Respondents : Mr.Vijay Narayan, Advocate General
assisted by
Mr.N.Damodaran, Standing Counsel (R1)
ORDER
The petitioner has filed the above Writ Petition to issue a Writ of Mandamus directing the 1st respondent to pay a sum of Rs.168,85,00,000/-, being the sum admitted as payable to the petitioner vide Minutes of the Meeting dated 24.05.2018, which was recorded by the National Company Law Appellate Tribunal vide order dated 29.05.2018.
2.The brief case of the petitioner is as follows:
(i)The petitioner, Arkay Energy (Rameswarm) Limited (Arkay) is a Company registered under the Companies Act, 1956, which is Special Purpose Vehicle owning power generating stations at Valuthur, Valantharavai Post, Ramnad District. The petitioner was a successful bidder of the tender floated by the 1st respondent and has been entering into Power Supply Agreement with the 1st respondent to supply power to the 1st respondent for a tariff. Besides this, the petitioner has also been supplying power to its shareholders in consonance with the Electricity Act, 2003.
(ii)The 1st respondent’s obligation to pay the principal sum, along Page 2 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 with interest on the late payments made by the 1st respondent, was pursuant 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 1st respondent. The 1st respondent would certify these bills and process them for payment.
(iii)From the very commencement of the contractual relationship between the petitioner and the 1st respondent, while the petitioner had been supplying electricity to the 1st respondent as per the contract, the 1st respondent was not making the payment on time. Each and every payment was delayed and would be paid even after several months. Further, despite approving the bills raised by the petitioner and certifying the bills for payment, the 1st respondent, for the reasons best known to them, did not clear the amounts. Due to these non-payments, a sum of Rs.99,38,86,682/-
was payable as principal, Rs.129,17,95,050/- towards interest and Rs.22,72,50,049/- as compensation, amounting to a total sum of Rs.251,29,31,781/- was payable by the 1st respondent to the petitioner. Page 3 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018
(iv)According to the petitioner, the 1st respondent made frivolous deductions citing frivolous reasons in a desperate attempt to stall and not pay the legitimate amounts to the petitioner. Since there was unilateral and frivolous deductions by the 1st respondent, the petitioner filed a Writ Petition in W.P.No.34238 of 2016 to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the letter dated 13.02.2015 and the consequential letter dated 24.05.2015 and consequently to direct the 1st respondent from deducting any amount from the duly certified Purchase Bills submitted by the petitioner. In the Miscellaneous Petitions in W.M.P.Nos.29558 to 29560 of 2016 filed in the said Writ Petition, by order dated 29.06.2016, this Court directed the respondent not to deny the payment of Rs.48,00,00,000/- to the petitioner. Inspite of the said order, the 1st respondent did not release the said amount. Consequently, Contempt Petitions in Contempt Petition Nos.808 & 809 of 2016 were filed by the petitioner and by order dated 26.04.2017, Statutory Notices were issued to the officials of the 1st respondent. Pursuant to the same, the Chairman of the 1st respondent Company was present during the hearing on 28.06.2017 and filed a counter affidavit to the Contempt Petitions raising frivolous allegations. In the counter filed by the respondent in the Page 4 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 Contempt Petitions, it has been stated that the TANGEDCO always, after clearing the principal amounts, pays the interest on the late payments.
(v)Since no payments were forthcoming and in view of the admitted liability, the petitioner issued a Demand Notice to the 1st respondent on 04.07.2017 under Section 8(1) of the Insolvency and Bankruptcy Code, 2016, read with, Rule 5 of the Insolvency and Bankruptcy Rules, 2016, calling upon the 1st respondent to make the payment within a period of ten days. The respondent duly received the Demand Notice on 05.07.2017, 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 1st 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 (NCLT) at Chennai for initiation of the Corporate Insolvency Resolution Process against the 1st 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 Page 5 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 declared for the 1st respondent. The NCLT, Chennai, by order dated 13.09.2017, dismissed the application. Aggrieved over the same, the petitioner filed an appeal before the National Company Law Appellate Tribunal (NCLAT), Delhi to set aside the order of the NCLT dated 13.09.2017. During the pendency of the proceedings before the NCLAT, the petitioner and the 1st respondent entered into a compromise on 24.05.2018. Pursuant to the settlement, a compromise order was recorded in the NCLAT on 29.05.2018 and the petitioner, with a positive hope and legitimate expectation that the payments due to them would be released, withdrew the appeal.
(vii)According to the petitioner, as per the order dated 29.05.2018, the 1st respondent should release a total sum of Rs.208,85,00,000/- to the petitioner. In the said total sum, on 29.05.2018, the 1st respondent released a sum of Rs.40,00,00,000/- to the petitioner and the same was also recorded in the compromise order. After deducting this Rs.40,00,00,000/- from the total sum of Rs.208,85,00,000/-, the balance payable by the 1 st respondent is Rs.168,85,00,000/-.
(viii)Further, the petitioner has stated that a total of 17 suits were Page 6 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 filed against the petitioner's Group Companies - Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited, in which one of the trade creditor filed an application to injunct the 1st respondent from paying any of the Group Companies of Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited. In the said applications, this Court, by order dated 08.06.2018, observed that permission of the Court has to be sought only with respect to the defendant or anybody acting on behalf of the defendant. According to the petitioner, the defendant in the suits are Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited. Further, the petitioner has specifically stated that they were not a defendant in any of the suits, therefore, there was never a bar against the 1st respondent for releasing any amounts to the petitioner. Since the 1st respondent interpreted the order dated 08.06.2018 and refused to make the payment to the petitioner, a clarification was sought before this Court and this Court, by order dated 23.07.2018, made it clear that there was never any prohibitory order by the Court against TANGEDCO from making any payments to Companies, who are not parties to the suits. Even after the clarificatory order passed by this Court on 23.07.2018, the 1st respondent failed to pay the sum of Rs.168,85,00,000/-.
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(ix)Further, the petitioner has stated that the Syndicate Bank, to whom the petitioner owes a substantial amount of dues, filed an Insolvency Petition under the Insolvency and Bankruptcy Code, 2016, before the NCLT, 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 Corporate Insolvency Resolution Process because of the attitude of the 1st respondent in not paying the admitted dues payable to them.
(x)As per the order dated 19.09.2018 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 20.12.2018, W.P.(MD).No.15248 of 2016 on 19.12.2018, Contempt Petition No.808 of 2016 on 20.12.2018, W.P.(MD).No.8765 of 2015 on 09.01.2019 and W.P.(MD).No.13895 of 2015 on 21.12.2018. In these circumstances, the petitioner has filed the Writ Petition to issue Writ of Mandamus to direct the 1st respondent to pay the sum of Rs.168,85,00,000/- as per the order dated 29.05.2018 of the NCLAT.
3.The brief case of the 1st respondent is as follows: Page 8 / 28
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(i)In the counter filed by the 1st respondent, it has been stated that pursuant to the order of settlement passed by the NCLAT dated 29.05.2018, a sum of Rs.40,00,00,000/- was paid to the petitioner. Further, the 1st respondent has stated that they have paid a sum of Rs.45,00,00,000/- on 26.09.2018 pursuant to the order dated 19.09.2018 made in W.M.P.No.27811 of 2018 in the present Writ Petition. That apart, they have also stated that a sum of Rs.25,00,00,000/- was paid on 11.02.2019 and another sum of Rs.25,00,00,000/- was paid on 11.11.2019 to the petitioner. The 1st respondent has also stated that various proceedings pending as against M/s.Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited, where dues are recoverable by TANGEDCO, necessary notices have been issued to them in that regard and without a complete reconciliation of accounts and consequential crystallization of a definite amount, the dues payable by all the three Group Companies should be calculated. In such circumstances, the petitioner is not entitled to maintain the Writ Petition seeking for payment of Rs.168,85,00,000/-.
(ii)The 1st respondent has also stated that as per the Minutes of the Meeting dated 24.05.2018, the petitioner should withdraw all the pending proceedings before different Courts prior to the payment of Page 9 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 Rs.208,85,00,000/-. Further, the 1st respondent has stated that the petitioner has not withdrawn the pending proceedings so far. It has been further stated that the petitioner’s two Group Companies M/s.Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited are liable to pay a sum of Rs.136.43 lakhs and Rs.420.61 lakhs. The 1st respondent contended that as per Para – 9 of the Minutes of the Meeting, all the cases filed by the Appellant Companies against TANGEDCO and pending before the Hon’ble High Court of Madras, NCLAT, Civil Court and any other Forum shall be withdrawn by them. Since the petitioner and its Group Companies failed to withdraw the pending proceedings as agreed in the Minutes of the Meeting, the petitioner is not liable to get the payments from the 1st respondent. The settlement of any further payment is subject to withdrawal of all cases as agreed in the Minutes of the Meeting dated 24.05.2018.
(iii)In the additional affidavit filed on 14.10.2020, the 1st 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 1st respondent has stated that a total sum of Rs.152.91 crores is due and payable by the Ind Barath Group Companies.
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4.Heard Mr.P.Chidambaram, learned Senior Counsel appearing for Mr.Anirudh Krishnan, the learned counsel appearing for the petitioner and Mr.Vijay Narayan, learned Advocate General for Mr.N.Damodaran, the learned Standing Counsel appearing for the 1st 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 24.05.2018, it was agreed upon between the 1st 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 NCLAT, Civil Courts and any other Forum, shall be withdrawn by them and therefore, the learned Senior Counsel submitted that only on receipt of the payment, the petitioner was directed to withdraw the pending proceedings. Further, the learned Senior Counsel submitted that however, the petitioner had withdrawn five cases pending before this Court as per the orders of this Court made in W.M.P.No.27811 of 2018 in the present Writ Petition. The learned Senior Counsel further submitted that the 1st respondent having made payments of Page 11 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 Rs.40,00,00,000/- on 29.05.2018, Rs.45,00,00,000/- on 26.09.2018, Rs.25,00,00,000/- on 11.02.2019 and another sum of Rs.25,00,00,000/- on 11.11.2019 to the petitioner pursuant to the Minutes of the Meeting dated 24.05.2018 and the order passed by the NCLAT dated 29.05.2018, they cannot now take a stand that Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited and the petitioner Company should be treated as one and in view of the payments to be recovered from the other two Group Companies, the 1st respondent is not liable to make the payments to the petitioner. The learned Senior Counsel submitted that after deducting the payments made by the 1st respondent, they are liable to pay the balance amount of Rs.73,85,00,000/- to the petitioner.
6.Mr.Vijay Narayan, learned Advocate General appearing for the 1st respondent submitted that the petitioner Company is part of Ind Barath Group Companies and they should be treated as one entity. The learned Advocate General further submitted that the 1st respondent is liable to recovery a sum of Rs.152.91 crores from Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited, therefore, the petitioner is not entitled to claim the amount from the 1st respondent. That apart, the Page 12 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 learned Advocate General also submitted that the petitioner has not complied with the Minutes of the Meeting dated 24.05.2018 by withdrawing all the proceedings pending before the various Courts, hence, they are not liable to claim any amount from the 1st respondent. In these circumstances, the learned Advocate General prayed for dismissal of the Writ Petition.
7.On a careful consideration of the materials available on record and the submissions made by the learned senior counsel on either side, it is not in dispute that the petitioner is a Power Generating Company and is in the business of supplying power to the 1st respondent and a major portion of the income depends on the clearance of the payments from the 1st respondent. From the year 2016, the 1st respondent had stopped making payments to the petitioner, hence, the petitioner approached the NCLT to start Corporate Insolvency Resolution Process against the 1st respondent, however, the NCLT dismissed the petition. Aggrieved over the same, the petitioner filed an appeal before the NCLAT, where a settlement was reached between the parties and a Minutes of the Meeting dated 24.05.2018 was also entered into and the same was recorded in the order of the NCLAT dated 29.05.2018. The order passed by NCLAT dated 29.05.2018 is extracted Page 13 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 below:
“ ORDER 29.05.2018: Learned counsel for the Appellant submits that the parties have settle the dispute. A copy of the Minutes of the 6th Meeting held in PWD Conference Hall, Energy Department, Fort St.George, Chennai on 24.05.2018 has been produced which reads as follows:
MINUTES OF THE 6TH MEETING HELD IN PWD CONFERENCE HALL, ENERGY DEPARTMENT, FORT ST.GEORGE, CHENNAI ON 24.05.2018 AT 4.30 P.M. BETWEEN TANGEDCO AND AUTHORIZED REPRESENTATIVES OF M/S.ARKAY ENERGY (RAMESWARM) LTD., M/S.IND BARATH POWERGENCOM LTD., & M/S.IND BARATH THERMAL POWER LTD.
Members Present TANGEDCO
1.Thiru.Vikram Kapur, I.A.S., CMD/TANGEDCO
2.Thiru.M.Manoharan, Director/Finance/TG
3.Thiru.K.Sundaravadhanam, CFC/General
4.Thiru.Narayanan, CE/PPP
5.Thiru.S.Thirunavukkarasu, SE/Power Purchase
6.Tmy.S.Savitha, FC/General
7.Thiru.S.Doraisamy, SE/OA & CO COMPANY REPRESENTATIVES
1.Mr.Raghu, Chairman
2.Mr.Bharath, Vice Chairman
3.Mr.M.N.V.Sudhakar, President (Adm. & Com)
4.Mr.T.S.Das, Vice President Page 14 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018
5.Mr.M.Kamaraj, Vice President
6.Mr.R.S.Vignesh Karthik, Deputy Manager With reference to the Hon'ble NCLAT's order dated 10.05.2018, which was posted on its website on 14.05.2018, and in continuation of the previous meetings held on 13.04.2018, 30.04.2018, 07.05.2018 and 15.05.2018, TANGEDCO and Appellant Companies had discussions on the various issues under dispute, particularly the statement of accounts and the accounting of energy as per the PPA, during the period from 18.05.2018 to 23.05.2018. Based on this, a reconciliation meeting was called on 24.05.2018.
2)TANGEDCO read out the details of the claims and admissions for the period from Oct 2015 to May 2016 in respect of all the three Appellant Companies of the Ind Barath group. The amounts covered under various disputes which have been mentioned in all submissions before the Hon'ble NCLAT as well as in the minutes of the 3rd meeting held on 07.05.2018, which are pending before the Hon'ble High Court of Madras, City Civil Court, Hyderabad and Indore were also read out. Most of the disputed amounts are covered under the writ petitions and civil suits, which are pending finalization.
3)TANGEDCO stated that is has received a notice from M/s.AAV Partners, Advocates and Solicitors dated 18.05.2018 in respect of four civil suits on behalf of their Page 15 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 clients, M/s.Millenium Steel India Pvt. Ltd., and M/s.Black Burn Fuels Pvt. Ltd., bearing C.S.No.400, 401, 402 and 403/2017 before the Hon'ble High Court, Madras and they have called upon TANGEDCO to desist from disbursing any monies to M/s.Ind Barath Thermal Power Ltd., and M/s.Ind 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/sArkay 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 court cases, and include receivables by TANGEDCO on account of current consumption charges, as well as likely excess payments made to Ind Barath that have been pointed out by auditors, to the extent of about Rs.101 crores. Pending Page 16 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 reconciliation with the audit, if the above recoveries are to be deducted, the balance outstanding principal due to Ind Barath group works out to about Rs.23 crores (Rs.124 crores – Rs.101 crores).
6)On the issue of interest, during the meeting, Ind Barath agreed to revise its method of calculation from “compound interest” to “simple interest”. Ind Barath, however, did not concur to a 50% waiver of interest, as requested by TANGEDCO. Thus, the total interest payable as per TANGEDCO's workings in respect of the three Appellant Companies provisionally works out to about Rs.281 crores (Rs.235.78 crores + Rs.45.61* crores), however, according to the Appellant Companies, the total sum is working out to Rs.312.25 crores approximately (Rs.266.64 crores + Rs.45.61 crores) as per the agreed methodology of interest calculation and the same has to be reconciled at the earliest.
7)TANGEDCO has already deposited in the Hon'ble High Court of Madras an amount of Rs.75 crores in various civil suits involving the above two Companies namely M/s.Ind Barath Thermal Power Ltd., & M/s.Ind Barath Powergencom Ltd., in favour of the Registrar General, Hon'ble High Court of Madras. Considering this, the overall balance amount payable by TANGEDCO provisionally works out to about Rs.229 crores (23 + 281 – 75) as detailed below:
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https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 Ind Barath Group Companies S.No. Description Total Arkay Power Thermal Gencom Power
1. Power purchase bills 99.77 0.007 24.26 124.037 (including compensation)
2. Less: Recoveries from 0.16 47.56 52.97 100.69 bills
3. Less: Deposits in Hon'ble 0.00 14.27 61.17 75.44 High Court of Madras
4. Principal dues 99.61 -61.823 -89.88 -52.093 (S.No.1-2-3)
5. Add: Interest on delayed 70.61 80.07 85.10 235.78 payment
6. Add: Interest on unpaid 38.63 0.0025 6.98 *45.61 bills
7. Total (S.No.4+5+6) 208.85 **18.25 **2.20 229.30 ** Subject to various prohibitory orders.
Further, Ind Barath insisted on payment of interest on delayed payment of an additional Rs.31 crores (Rs.266.84 – Rs.235.78 crores) and the interest on unpaid bills of Rs.45.61* crores in Sl.No.6 in the above table, which are yet to be reconciled between TANGEDCO and Ind Barath.
8)Apart from the above deposits mentioned in Sl.No.3 there are prohibitory orders in suits filed by M/s.IL&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 crore in an application filed under Sec.9 of the Arbitration Act by Page 18 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 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 Hon'ble High Court of Madras, Hon'ble NCLAT, 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 Appellant Companies. The amount so crystallized may be paid by TANGEDCO in instalments at mutually agreed terms at the earliest.
10)Both TANGEDCO and Ind Barath reiterated that all efforts will be made to settle other outstanding issues, such as excess payment of power purchase bills pointed out by audit and in case the same are not resolved amicably, to approach the appropriate authority for dispute resolution, viz., the Hon'ble TNERC. It was also agreed that both parties will be open to discussing all issues in good faith.
11)Ind Barath agreed that this record of discussions Page 19 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 shall be filed by them by way of an affidavit before the Hon'ble NCLAT on the next hearing due on 29.05.2018, without insisting on payment of the entire agreed dues, immediate payment of reasonable sum as mutually agreed so as to enable it to withdraw its Appeal before the Hon'ble NCLAT.
2.Mr.Amrendra Saran, learned senior counsel appearing on behalf of the Respondent – 'Tamil Nadu Generation & Distribution Company Ltd.' submits that in view of terms and conditions of the agreement, the Appellants are required to withdraw the appeal. He also handed over an account payee cheque bearing number 852321 dated 28.05.2018 for Rs.40,00,00,000/- (Rupees Forty Crore only) issued in the name of 'Arkay Energy (Rameshwarm) Limited' issued by State Bank of India, Commercial Branch Chennai to learned counsel for the Appellant for onward transmission to the Appellant.
3.On instruction learned counsel appearing on behalf of the Appellant sought permission to withdraw the appeal in view of the settlement reached above.
4.In view of such prayer, all the appeals stands disposed of as withdrawn. Parties are directed to act in term with the agreement.” Page 20 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018
8.Pursuant to the settlement arrived at between the parties, the NCLAT disposed of the appeals as withdrawn on 29.05.2018. While passing the order, the NCLAT had also extracted the terms of the settlement. As per the calculation tabular column in the order dated 29.05.2018, it has been mentioned that a sum of Rs.208,85,00,000/- is payable by the 1st respondent to the petitioner Company. In para – 9, it has been stated that the parties had agreed that in lieu of the above payment, 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 1st respondent and pending before this Court, NCLAT 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 29.05.2018, when the NCLAT disposed of the appeals, the learned Senior Counsel appearing on behalf of the 1st respondent - TANGEDCO submitted that in view of the terms and conditions of the Agreement dated 24.05.2018, the Appellants viz., Arkay Energy (Rameswarm) Limited, Ind Barath Thermal Power Limited and Ind Page 21 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 Barath Powergencom Limited, are required to withdraw the appeal and he also handed over an account payee cheque dated 28.05.2018 for Rs.40,00,00,000/- issued in the name of Arkay Energy (Rameswarm) Limited (the petitioner herein) drawn on State Bank of India, Commercial Branch, Chennai, to the learned counsel for the Appellant for onward transmission to the Appellant.
10.Therefore, subsequent to this payment, this Court in W.M.P.No.27811 of 2018 in the present Writ Petition, by order dated 19.09.2018, directed the 1st respondent to release a sum of Rs.45,00,00,000/- to the petitioner. Pursuant to the said order, the 1st respondent paid the said amount on 26.09.2018 to the petitioner and complied with the orders of this Court. Thereafter, the 1st respondent paid a sum of Rs.25,00,00,000/- on 11.02.2019 and another sum of Rs.25,00,00,000/- on 11.11.2019 to the petitioner. Thus, the 1st respondent, after the execution of the Memorandum of Settlement dated 24.05.2018, paid a total sum of Rs.135,00,00,000/-, out of Rs.208,85,00,000/- to the petitioner. If the 1st respondent had considered the petitioner Company, Ind Barath Thermal Power Limited and Ind Barath Powergencom Limited as one entity and when they contend that the other two Companies are liable to Page 22 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 pay a sum of Rs.152.91 crores, they would not have paid the sum of Rs.135,00,00,000/- to the petitioner Company. The payments made by the 1st respondent after 24.05.2018 itself would establish that they treated the petitioner Company as a separate entity and not along with the other two Companies. The 1st respondent having partly complied with the Memorandum of Settlement dated 24.05.2018, now they cannot take a different stand and contend that since the other two Companies are liable to pay the amounts to the 1st respondent, the petitioner Company is not entitled to claim the amount as per the Memorandum of Settlement dated 24.05.2018.
11.So far as the withdrawal of the proceedings pending before various Courts is concerned, in the affidavit dated 17.07.2020, filed by the petitioner, in para – 10, they have given the list of cases withdrawn by them after 24.05.2018. So far as the W.P.Nos.11228 of 2017, 25357 of 2010, 25245 of 2010, 25248 of 2010, 30037 of 2010 and 25247 of 2010 are concerned, the petitioner has stated that they were arrayed as respondent in the said Writ Petitions, hence, the question of withdrawal by them does not arise. The list of cases withdrawn by the petitioner mentioned in the affidavit dated 17.07.2020 is extracted as follows:
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https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 S.No. Details of the case Withdrawal Date 1 W.P.(MD).No.14423 of 2016 11.01.2019 2 W.P.No.34238 of 2016 20.12.2018 3 W.P.No.22364 of 2017 10.01.2019 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 28.02.2019 11 W.P.(MD)No.8765 of 2015 09.01.2019 12 W.P.(MD)No.13895 of 2015 21.12.2018 13 W.P.No.38082 of 2016 25.09.2019 14 W.P.No.35548 of 2016 25.09.2019 15 W.P.No.18675 of 2017 19.09.2019 16 W.P.No.28289 of 2013 29.04.2019 17 W.P.No.35547 of 2016 25.09.2019 18 W.P.No.28291 of 2013 29.04.2019 19 W.P.No.13723 of 2016 27.02.2019 20 W.P.No.14426 of 2016 27.02.2019 21 W.P.No.28290 of 2013 29.04.2019 Page 24 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 S.No. Details of the case Withdrawal Date 22 W.P.(MD) No.15248 of 2016 19.12.2018 23 Cont.P.(MD).No.1522 of 2015 in 17.10.2019 W.P.(MD).No.13895 of 2015 24 Cont.P.No.808 of 2017 in 20.12.2018 W.P.No.34238 of 2016 From the above, it is clear that the petitioner had withdrawn the above mentioned proceedings after 29.05.2018 (i.e.) the date on which the NCLAT passed the order based on the Memorandum of Settlement dated 24.05.2018. Therefore, it cannot be stated that the petitioner has not complied with the terms of the Memorandum of Settlement. The petitioner has also extracted the details of the payment of a total sum of Rs.135,00,00,000/- made by the 1st respondent to them in the said affidavit, which is also extracted below:
S.No. Cheque Date Cheque Number Amount
1 28.05.2018 852321 Rs.40,00,00,000/-
2 26.09.2018 344279 Rs.45,00,00,000/-
3 11.02.2019 344861 Rs.25,00,00,000/-
4 11.11.2019 0552013 Rs.25,00,00,000/-
Total Rs.135,00,00,000/-
From the above, it is clear that all the payments mentioned above were made only after 24.05.2018 (i.e.) the date on which the Memorandum of Settlement was entered into between the petitioner and the 1st respondent. Page 25 / 28
https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018 The very conduct of the 1st respondent in partly complying with the terms of the settlement dated 24.05.2018 itself would establish that the 1st respondent had treated the petitioner as a separate entity and did not treat the petitioner Company along with the other two Group Companies. In these circumstances, the contentions of the 1st respondent are liable to be rejected. Accordingly, the same are rejected.
12.After deducting the sum of Rs.135,00,00,000/- paid by the 1st respondent to the petitioner from the total sum of Rs.208,85,00,000/-, the balance payable by the 1st respondent is Rs.73,85,00,000/-. Therefore, the 1st respondent is liable to pay the balance sum of Rs.73,85,00,000/- to the petitioner.
13.For the reasons stated above, the 1st respondent is directed to pay the balance sum of Rs.73,85,00,000/- to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. Page 26 / 28 https://www.mhc.tn.gov.in/judis/ W.P.No.23856 of 2018
14.With these observations, the Writ Petition is partly allowed. No costs. Consequently, the connected miscellaneous petition is closed.
Index : Yes/No 05.01.2021
va
To
1.The Chief Financial Controller,
Tamil Nadu Generation & Distribution
Company Limited (TANGEDCO),
No.144, Anna Salai,
Chennai – 600 002.
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https://www.mhc.tn.gov.in/judis/
W.P.No.23856 of 2018
M. DURAISWAMY, J.
va
Order made in
W.P.No.23856 of 2018
and W.M.P.No.27811 of 2018
05.01.2021
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https://www.mhc.tn.gov.in/judis/