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Judgment
(Hybrid Mode) 13.03.2026: Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):
This Company Appeal (AT) (CH) (INS) No. 137 / 2026, is accompanied with a Condone Delay Application, being IA No. 415 / 2026 where the Appellant has sought a condonation of 14 days of delay that has chanced in preferring the Appeal. Besides that, certain defects have also been pointed out by the Registry on 10.03.2026.
Looking to the nature of controversy, in context of the defect pointed out by the Registry, the defects as reported on 10.03.2026, are being overruled.
As the Counsels for the parties are in agreement for a final disposal of the instant Company Appeal, we proceed to hear the Ld. Counsels for the parties on the Condone Delay Application.
The impugned order was rendered on 06.01.2026. The Certified copy of the Order was applied for by the Appellant on 19.02.2026, it made available on 02.03.2026 and it was accordingly issued too on the said date. Thereafter, the Company Appeal was preferred before the Registry of this Tribunal, by efiling the same on 09.02.2026. The Registry of this Tribunal has reported that, there is a delay of 14 days, in filing the Appeal.
Having heard the Ld. Counsels for the parties and after going through the records and grounds taken by the Appellant, particularly that as contained in Para 4 of the Application, since the grounds for condonation of delay are reasonable and justified, coupled with the fact that the limitation is falling well within the condonable period as contemplated under the proviso to sub-section (2) of Section 61 of I & B Code, 2016, the delay of 14 days would stand condoned. Accordingly, the Condone Delay Application (IA No. 415 / 2026), would stand allowed.
Before we embark upon to make any observations qua the challenge given to the impugned order of 06.01.2026, that has been rendered by the Ld. NCLT, Chennai Bench in IA(IBC)/1558(CHE)/2025 as it was preferred in MA/04(CHE)/2021 in CP(IB)/1424(CHE)/2019, certain precise facts are required to be dealt with in the instant Company Appeal.
The facts that have been brought on record is to the effect that the Appellant has filed an Application MA / 04 (CHE) / 2021, on which the Ld. Tribunal had proceeded to pass an order on 26.02.2021, granting an interim relief from disconnection of power supply by the Respondent, subject to the condition of depositing Rs.1,00,00,000/- with the Resolution Professional of the Corporate Debtor, which was to be deposited into the Accounts of the Corporate Debtor, within 10 working days from the date of the order. The Resolution Professional was directed to keep this amount in a separate account till the disposal of MA / 04 (CHE) / 2021.
The relevant extract of the order dated 26.02.2021 is extracted hereunder:
``This MA/4/2021 mentioned today by the Learned Sr. Counsel Mr. P.S. Raman for the Applicant is taken up for hearing.
This application is filed seeking interim relief from disconnecting the power supply to the Applicant. The Corporate Debtor is under CIRP and Ms. Renukadevi Rangasamy is the Resolution Professional. The RP is represented by Ld. Counsel Ms. Deepa Mariappan. By letter dated 27.01.2021, the RP has made demand of Rs.3,13,29,849/-(Rupees Three Crores Thirteen Lakhs Twenty Nine Thousand Eight Hundred and Forty Nine only) from the Applicant towards outstanding amount due and payable within a week’s time from the date of receipt of the said letter. Aggrieved by this letter, this Application has been filed by the Applicant.
Interim relief is granted to the Applicant on the condition that a sum of Rupees One Crore is deposited with RP of Corporate Debtor in the account of the Corporate Debtor within 10 working days from today. The RP shall keep this amount in a separate account till the disposal of this MA/4/2021.
The Registry is directed to issue this order by way of email today itself. List this matter on 12.03.2021 for further hearing.’’
The MA / 04 (CHE) / 2021 in which the interim order was passed on 26.02.2021, was finally adjudicated upon by the Ld. Tribunal vide its order dated 10.06.2025. The reliefs sought in the said Miscellaneous Application, by the Applicant / Appellant herein were that, the Resolution Professional be directed to maintain the status quo in respect of the project of the Appellant, comprising of 17 Wind Turbine Generators, bearing capacity of 25.5 MW situated in Budh, Maharashtra, that the Resolution Professional of the Corporate Debtor may be restrained from disconnecting the power supply from the Applicant’s WTGs to the pooling sub-station and the grid forming a part of Applicant’s project comprising 17 WTGs bearing capacity of 25.5 MW situated at Budh Maharashtra, that the RP may be restrained from restricting the Appellant from availing the services of Pooling Stations without any hindrances, and that the Appellant may be granted leave to invoke Arbitration against the Corporate Debtor as per Section 60(6) of I & B Code, 2016, once the moratorium is lifted.
Ld. Tribunal in its Order dated 10.06.2025 observed that the parties had entered into a Settlement Agreement dated 25.08.2018 to end their dispute in respect of O & M Contracts entered between them and had subsequently, made a joint application before the Sole Arbitrator and obtained the joint award from the Arbitrator. Further, the Appellant and the Respondent had entered into an Agreement called ``Umbrella Agreement’’ dated 25.08.2018 for O & M and maintenance of common facilities only for certain projects including the projects falling under this Appeal and that the said Umbrella Agreement has a Clause 2.3 which states that in case of any dispute arising out of this Agreement, such shall be adjudicated by a Panel of three Arbitrators. Clause 2.3 is extracted hereunder:
``2.3 Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by the laws of India exclusive of its conflict of laws rules. In case any dispute arises out of this Agreement or in pursuance thereof, such disputes shall be adjudicated by a panel of three arbitrators, wherein one arbitrator shall be nominated by ReGen Infra and one arbitrator shall be nominated by the relevant SGIL Subsidiary. This Agreement shall be governed by the Arbitration and Conciliation Act, 1996 and the Courts of law at New Delhi shall have the exclusive jurisdiction to try any and all such disputes’’.
Ld. Tribunal further observed that resolving this dispute requires a detailed examination of technical aspects of the projects and the intent of the parties across the interconnected Agreement (i.e. Shared Services Agreement, Settlement Agreement and Umbrella Agreement) which is best resolved through Arbitration as agreed between the parties as per Clause 2.3 of the Umbrella Agreement.
Accordingly, the Ld. Tribunal proceeded to pass the final order, on MA / 04 (CHE) / 2021, directing the parties to invoke Clause 2.3 of the Umbrella Agreement and to proceed with the Arbitration for purposes of resolution of their contractual dispute.
Admittedly, the order dated 26.02.2021 which was an interim order passed on MA / 04 (CHE) / 2021 and the order dated 10.06.2025 being the final order on MA / 04 (CHE) / 2021, have attained finality, as that has not been challenged by any of the parties.
Subsequent to this, M/s. Green Infra BTV Limited, the present Appellant filed the Application IA(IBC)/1558(CHE)/2025 in the same Company Petition CP(IB)/1424(CHE)/2019 wherein they prayed for that the amount of Rs.1,00,00,000/- thus deposited in pursuance to the interim order of 26.02.2021, by way of an interim measure to act as a security while deciding the MA/04(CHE)/2021 may be refunded and returned to the Applicant / the Appellant herein, and to pass such further order as deemed to be fit.
The said Application came up for consideration before the Ld. Tribunal and the Ld. Tribunal proceeded to pass the impugned order of 06.01.2026, wherein the following observations were made:
``In this case Counsel for the Applicant stated that the amount of Rs.1 crore `be kept as it is till the matter is adjudicated by the Arbitrator. Accordingly, Respondent is directed to keep the amount as it is till the matter is adjudicated by the Arbitrator.
Applicant also sought electricity be not disconnected till the matter is decided by the Arbitrator and Respondent is directed not to disconnect the electricity.’’
The said order has been put to challenge by the Appellant on the ground that, the Ld. Tribunal has misconstrued the pleadings he had raised in IA (IBC) / 1558 (CHE) / 2025. He has contended that the observation made by Ld. Tribunal in the impugned order that the Applicant had agreed for Rs.1 Crore to be kept as it is till the matter is adjudicated by the Arbitrator is contrary to the records, and that, no such consent or pleadings was ever raised by him for retention of the said amount till the dispute is finally adjudicated upon by the Arbitrator, based on which, the Ld. Tribunal passed the order directing the Respondent to keep the amount as it is till the matter is adjudicated by the Arbitrator.
After arguing the matter at length, Ld. Counsels for the parties came to a unanimity that the amount thus deposited by the Appellant in compliance of the order dated 26.02.2021, was only by way of a security to be extended for the purposes of considering the relief, which was sought by the Appellant in MA/04(CHE)/2021 and the same should have been returned after MA/04(CHE)/2021 was decided finally by an order of 10.06.2025, and that the directions to retain the same till the conclusion of the Arbitration proceedings, would be bad because it went beyond the jurisdiction of the Ld. Adjudicating Authority. We are of the view that the need to retain a Security Deposit during the pendency of the Arbitration proceedings, will have to be assessed independently by the provisions of the Arbitration Act, and to be independently decided upon an initiation of the Arbitration proceedings. Therefore, the direction to retain the amount of Rs.1,00,00,000/- under the provisions of I & B Code, 2016, in the absence of initiation of Arbitration proceedings would be arbitrary.
In that eventuality, the Counsels for the parties agreed that the amount thus deposited by the Appellant in compliance of the interim order dated 26.02.2021 as passed on MA/04(CHE)/2021, may be directed to be retained as a Security till either of the parties initiates an Arbitration proceedings, as directed by the order dated 10.06.2025 and further it was agreed that, till the Arbitration proceedings are initiated, no coercive action of the disconnection of electricity would be taken by the Respondent.
In that eventuality, since the parties are at consensus, the instant Company Appeal is being disposed of under the following terms:
The amount thus deposited by an order dated 26.02.2021 as passed in MA/04(CHE)/2021, is to be continued to be retained as a Security till the either of the parties initiate the Arbitration proceedings;
The amount thus deposited by the Appellant would be treated as to be the Security only upto the stage of initiation of the Arbitration proceedings by any of the parties;
The amount thus directed to be retained by the impugned order will only act as a Security prior to the initiation of the Arbitration proceedings and that would abide by any decision, which is to be taken subsequently by the Arbitrator on the Interlocutory Applications to be preferred before the Arbitrator; and lastly;
It was agreed between the parties that the Respondent will not take any coercive action as against the Appellant qua the act of disconnection of electricity.
Subject to the aforesaid exceptions as agreed between the parties, the Company Appeal (AT) (CH) (INS) No. 137 / 2026 would stand disposed of. Connected pending Interlocutory Applications, if any, would stand closed.
[Justice Sharad Kumar Sharma] Member (Judicial) [Jatindranath Swain] Member (Technical)