Power HF India Private Limited vs Resolution Professional

Per: V. Nallasenapathy, Member (Technical)

This is an application filed by the Applicant/Operational creditor of the Corporate Debtor seeking the following reliefs:

The Applicant submits that the Corporate Debtor was put under CIRP by an order of this Tribunal dated 15.05.2018. The Applicant submits that they have rendered essential services to the Corporate Debtor by maintaining the Diesel Generator Sets (DG Sets) attached to the mobile towers owned by the Corporate Debtor. It is submitted that, the Applicant in response to the invitation of claims published by the Resolution Professional (RP), filed his “Form-B”, as annexed at ‘Annexure-J’ to this application and as stated by the Applicant in Para 14(x) at Pg. 10 & 11 of his Convenience Compilation, claiming a sum of Rs.52,07,33,618/-. The relevant details of the claim in “Form-B” are extracted below:

The Applicant further submitted that the above claim in Form-B is the revised claim dated 07.11.2019. The Applicant even though submitted that the original Form-B was submitted on 17.05.2019, the Applicant has not enclosed the same to his application but, now the Applicant claims that RP has to process the claim based on the original claim filed on 17.05.2019. The Applicant in his Written Submissions at Para 5 submitted as below:

When we see the calculation in the above table the total amount due is Rs.58,51,64,401/- and when the payment of Rs.6,42,05,361/- is deducted the balance works out to Rs.52,09,59,040/-. However, the Applicant states that the net outstanding is Rs.52,07,33,618/-. Further, the RP submits that the statement annexed to the email dated 19.11.2020 sent by the Applicant, has enumerated the invoices which shows the balance due as Rs.51,92,20,209/-. However, the Applicant submits that the statement of account sent by him is for balance of Rs.57,09,85,182/- as stated on Pg. 10 of Written Submissions of Applicant:

From the above we can easily say that the Applicant is confounding the confusion in the amount claimed at various stages as below:

A. Applicant states that the original claim was filed on 17.05.2019 – But no documents are annexed to the application.

B. Applicant submitted that revised claim was filed on 07.11.2019 for Rs.52,07,33,618/-, whereas vide the email statement sent on 19.11.2019 the details were given for Rs.51,92,20,209/-.

C. However, the Applicant submits that the email statement sent on 19.11.2019, claimed an amount of Rs.57,09,85,182/-.

D. The calculation shown in the Written Submissions on Pg. 6, shows that the claim is for Rs.52,07,33,618/-, whereas the actual calculation shows that the claim should have been for Rs.52,09,59,040/-.

The RP in his response submitted that he has received the claim for Rs.52,07,33,618/- on 07.11.2019 however, the Applicant by email dated 19.11.2019 has given details for Rs.51,92,20,209/-and hence for processing the claim the RP has taken this figure as claim amount. Further, the RP while so processing the claim found that, the invoices to the extent of Rs.4,53,41,866/-pertains to the invoices during CIRP period and hence the claim to the extent of Rs.4,53,41,866/- is rejected by the RP. RP further submits that this amount has also been paid as CIRP Cost.

RP further submits that invoices to the extent of Rs.14,03,08,917/- were relating to purchase orders raised by affiliate concerns and supplies made to the affiliate concerns of the Corporate Debtor. All these invoices were to the extent of Rs.14,03,08,917/- raised on the affiliates of the Corporate Debtor. In this respect the Applicant submits that it was the usual practice of the Applicant to raise invoices on the Corporate Debtor for the supplies made to the affiliate concerns of the Corporate Debtor. The Applicant relies on the General Terms & Conditions (GTC) entered into between the Applicant and the Corporate Debtor on 07.09.2012 and renewed subsequently. Wherein, it is submitted that the Corporate Debtor is liable to make payments even for the supplies made to the affiliate concern of the Corporate Debtor. However, the RP submits that Clause 1.B.3 of GTC provides as below:

Therefore, we are unable to accept the argument of the counsel for the Applicant that the services rendered or goods supplied to the affiliate concerns have to be paid by the Corporate Debtor in view of the prevailing practice of the parties and this submission of Applicant cannot be accepted as somebody else’s liability cannot be pasted on the Corporate Debtor based on the practice as claimed. Even the GTC relied (supra) by the Applicant, clearly states that the primarily liability is on the affiliate concerns only. No material is placed before us to indicate that any claim was raised with the affiliate companies for the services rendered. In view of this, the RP is right in rejecting this part of the claim to the extent of Rs.14,03,08,917/-.

However, it is pertinent to note here that, the RP himself had stated that he has admitted the Applicant’s claim of Rs. 33,50,82,835/- and has rejected the claim of Rs.18,56,50,783/-(being Rs.14,03,08,917/- relating to purchase orders raised by affiliate concerns and Rs. 4,53,41,866/- pertaining to the invoices during CIRP period). So, the total works out to Rs.52,07,33,618/-but RP submitted that he had considered the email statement of 19.11.2019 wherein the amount due was Rs.51,92,20,209/-. Thus, from RP’s response it is evident that the RP has considered the Applicant’s total claim of Rs. 52,07,33,618/- but the RP has submitted that he has relied on the summary sheet emailed by the Applicant on 19.11.2019 to identify the invoices. This adjudication by the RP is creating the uncertainty and basis of disagreement between the parties, because the Applicant is claiming Rs. 52,07,33,618/- and has annexed documents in support in his Form-B and the RP having decided the claim of Rs.52,07,33,618/- is submitting that he has relied on the email of 19.11.2019 as per which email the Applicant’s claim comes to Rs.51,92,20,209/-. This debating situation needs to be settled.

Thus, in view of the fact that there is an original claim which has been revised on 07.11.2019 and inconsistent statements given by the Applicant at various points of time and also the imprecise adjudication of claims by the RP, the RP is hereby directed to have a fresh look to the claim taking into account the original ‘Form-B’ filed by the Applicant and determine the claim amount taking into account the above observations of this Bench regarding the rejection of the portion of claim. The RP is directed to decide the claim afresh within a period of 3 (three) weeks from today.

In view of the above order & observations of this Bench, the determination of claim by RP published on 23.12.2019, with respect to the present Applicant, is set aside. Further, the Applicant’s request for release of the admitted amount of Rs.33,50,82,835/- now, does not survive and the same is rejected.

IA No. 734 of 2020 is accordingly disposed of.