Delhi High Court - Orders
Elecon Engineeringh Company Limited vs Energo Engineering Projects Limited on 28 November, 2022
Author: Prateek Jalan
Bench: Prateek Jalan
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 151/2017
ELECON ENGINEERINGH COMPANY LIMITED ..... Plaintiff
Through: Mr. Akshay Makhija, Sr. Adv.
with Mr. Sanjeev Kumar Sharma,
Ms. Dipti Singh, Mr. Rajiv Dalal,
Ms. P. Sandhya, Advocates.
versus
ENERGO ENGINEERING PROJECTS LIMITED ..... Defendant
Through: Mr. Kamal Mehta, Mr. Arun
Upadhay, Ms. Heerika Shukla,
Advocates with Mr. Arvind Garg,
Liquidator in person for D-1.
Mr. Umesh Joshi, Advocate for D-
3.
Ms. Meghna Mishra, Mr. Meeran
Maqbool, Advocates for proposed
defendant.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 28.11.2022 I.A. 5067/2017 Pursuant to the order dated 19.09.2022, Mr. Akshay Makhija, learned Senior Counsel for the plaintiff, has taken instructions, and seeks permission to withdraw the present application without prejudice to the plaintiff's right to call representatives of the proposed defendant- Adani Power Rajasthan Limited as witnesses in the suit, if necessary.
Signature Not Verified Digitally Signed By:SHITU NAGPAL CS(COMM) 151/2017 Page 1 of 5 Signing Date:29.11.2022 17:34:03The application stands dismissed as withdrawn, with liberty as aforesaid.
I.A. 2496/2017 & I.A. 9257/2017
1. An ex parte order dated 27.02.2017, was passed on the plaintiff's application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, directing the defendant Nos. 2 and 3 not to make payments under four bank guarantees mentioned therein, subject to the plaintiff keeping the bank guarantees alive.
2. I am informed that the four bank guarantees have been kept alive, and, at present, the details of the bank guarantees are as follows:
S.No. NEW AMOUNT VALIDITY CLAIM
EXTENDED BG (INR) PERIOD PERIOD
NO.
1 25381GPER028819 Rs.2,02,55,000/- 31.03.2023 31.03.2023
DT
20.06.2019
2 25381GPER028719 Rs.13,70,000/- 31.03.2023 31.03.2023
DT
20.06.2019
3 25381GPER028919 Rs.2,10,07,460/- 31.03.2023 31.03.2023
DT
20.06.2019
4 25381GPER029019 Rs.13,70,000/- 31.03.2023 31.03.2023
3. With the consent of learned counsel for the parties, the aforesaid order dated 27.02.2017 is made absolute during the pendency of the suit.
Signature Not Verified Digitally Signed By:SHITU NAGPAL CS(COMM) 151/2017 Page 2 of 5 Signing Date:29.11.2022 17:34:034. Learned counsel for the defendant No. 1- Energo Engineering Projects Limited ["Energo"], does not press I.A. No. 9257/2017.
5. Both the applications, are therefore, disposed of in these terms. I.A. 9280/2018.
In view of the disposal of I.A. No. 2496/2017 and I.A. 9257/2017, Mr. Makhija does not press this application.
The application stands dismissed as not pressed. CS(COMM) 151/2017 & I.A. 10220/2017
1. By a judgment dated 13.09.2022, the Court held that the present suit can continue as against Energo, despite the fact that Energo was undergoing liquidation under the Insolvency and Bankruptcy Code, 2016.
2. On 19.09.2022, learned counsel for the Energo submitted that Energo has been "sold as a going concern" by virtue of the orders passed by the National Company Law Tribunal, Principal Bench, Delhi ["NCLT"], and that the present suit is not included in the sale notice. Energo was granted liberty to place the requisite documents on record by way of affidavit.
3. Energo, which is being represented by the liquidator, has since filed an affidavit dated 23.09.2022 with which it has annexed copies of two orders passed by the NCLT dated 21.08.2018 and 21.03.2022, as well as the sale notice and sale certificate in question.
4. By way of the order dated 21.08.2018 passed by the NCLT, Energo was directed to undergo liquidation.
5. By the order dated 21.03.2022, an application filed by the liquidator to sell Energo as a going concern was allowed with the following observations:-
Signature Not Verified Digitally Signed By:SHITU NAGPAL CS(COMM) 151/2017 Page 3 of 5 Signing Date:29.11.2022 17:34:03"The two projects which are left for completion and which required to be sold as going, concerned is at para 17, which reads as below:-
"17. That as on date following projects are left for completion:
S.No. Project Expected Date
Complete Liability
Date Period
1. South Bihar Power June, June,
June, 2022 June, 2023 2022 2023
Distribution Company
Limited
- BRGF Gaya, Bihar
(Rural
Electrification
Project
2. MP Power Generating December, December,
December, December, 2021 2021
Company Limited -
2021 2023
Birsinghpur, Madhya
Pradesh (Rural
Electrification
Project)
These two projects required further time, resources and efforts and the liquidator. Therefore, it seems appropriate that it should be sold as a going concern, to that effect the stakeholders have already given their consent, as mentioned above. In view of the above, we are inclined to allow this application.
IA-5561 / 2021 is allowed and disposed of."
6. The sale notice and certificate of sale which have been placed on record show that the liquidator has sought to sell Energo as a "going concern". Learned counsel for Energo, and Mr. Arvind Garg, the liquidator, who is present in person in the Court, they have handed over a copy of a communication dated 27.05.2022 addressed by the liquidator to the auction purchaser. The said communication is taken record. The terms and conditions of the transfer provide inter alia as follows:-
Signature Not Verified Digitally Signed By:SHITU NAGPAL CS(COMM) 151/2017 Page 4 of 5 Signing Date:29.11.2022 17:34:03"Certain assets and litigations are specifically excluded from sale of Corporate Debtor as a going concern and will continue to be held by the liquidator for beneficial interest of stakeholders of Corporate Debtor. The details of assets and litigations which continue to be held by the liquidator without transfer to Successful Bidder are annexed herewith as Annexure I".
7. The present suit is one of the pending litigations mentioned in Annexure-1 to the said communication. The present suit finds mention in table No. II at serial No.6 thereof which reads as "Pending litigation which will continue to be pursued by the liquidator".
8. In view of the above, it is made clear that, in terms of the judgment dated 13.09.2022, the present suit will continue as against Energo (represented by the liquidator).
9. Learned counsel for the parties seek time to argue the pending application, and to make submissions on the status of the pleadings qua the defendant No. 1.
10. List the suit and pending applications on 12.04.2023.
PRATEEK JALAN, J NOVEMBER 28, 2022 'Bhupi'/ Signature Not Verified Digitally Signed By:SHITU NAGPAL CS(COMM) 151/2017 Page 5 of 5 Signing Date:29.11.2022 17:34:03