RAJPUR HYDRO POWER PRIVATE LIMITED Vs. GANGDARI HYDRO POWER PRIVATE LTD
LAWS(HPH)-2021-1-47
HIGH COURT OF HIMACHAL PRADESH
Decided on January 08,2021

Rajpur Hydro Power Private Limited Appellant
VERSUS
Gangdari Hydro Power Private Ltd Respondents

JUDGEMENT

Vivek Singh Thakur,J. - (1.) Facts, relevant for adjudication of this application, emerging from plaint are as under:- A. Plaintiff No.1 Rajpura Hydro Power Private Limited ('RHPPL' for short), a company incorporated under Companies Act, 1956 (hereinafter referred to as Companies Act), engaged in development and construction of Hydro Energy Power Project at Nogli Khud, Tehsil Rampur, District Shimla, Himachal Pradesh (hereinafter referred to as Hydro Power Project), whereas plaintiff No.2 Dolphin Energy Enterprises ('DEE' for short) is a Proprietorship concern and is the successful resolution applicant whose resolution plan for RHPPL has been approved under the Insolvency and Bankruptcy Code, 2016 ('Code' for short) by the National Company Law Tribunal, Chandigarh ('NCLT' for short) vide its orders dated 27.9.2018. In pursuant thereto DEE has acquired the ownership, control and management of RHPPL. B. Defendant M/s Gangdari Hydro Power Private Limited (hereinafter referred to as 'defendant') is also a company incorporated under Companies Act, which has set up a Hydro Electric Project, namely Jongni (SHP). C. RHPPL and defendant have entered into a Joint Evacuation Agreement dated 11.4.2013, for the purpose of pooling the power generated at their respective small hydro projects and evacuating power through a common Transmission Line. In the opening para of Joint Evacuation Agreement, status of plaintiff and defendant has been specifically mentioned as 'Generating Companies' within the meaning of Section 2(28) of the Electricity Act, 2003 (in short 'the Act'). D. A dispute has arisen between the plaintiffs and defendant with reference to an amount claimed by defendant payable by plaintiffs, towards cost of construction of Transmission Line to be used jointly for evacuation of power and cost for operation and maintenance thereof, to be shared and borne by plaintiffs as agreed in terms and conditions of Joint Evacuation Agreement, whereupon defendant has sent a letter/Demand Notice dated 27.10.2020 to plaintiff No. 1 RHPPL, asking for payment of '6.48 crores and interest thereon from plaintiffs, with threat of termination of Joint Evacuation Agreement, if amount is not paid. E. On 12.4.2017, Seashell Infrastructure Pvt. Ltd. ('Seashell' for short), i.e. a Financial Creditor of RHPPL, had preferred an application under Section 7 of Code, before Adjudicating Authority, seeking initiation of Corporate Insolvency Resolution Process ('CIR Process' for short) against RHPPL. F. On 11.7.2017, the NCLT initiated CIR Process against RHPPL and Resolution Professional was appointed, who had issued a public announcement for submission of claim(s), in terms of provisions of Code. As per plaint, despite having knowledge of CIR Process, defendant did not submit any claim before the Resolution Professional. Thereafter, DEE had submitted the resolution plan in respect of RHPPL, which was approved by NCTL, vide order dated 27.9.2018, under the Code and on such approval, the approved resolution plan became binding to all stakeholders, including defendant, and since then, the approved resolution plan has been implemented and RHPPL (plaintiff No. 1) has been duly acquired by DEE (plaintiff No.2). It is claim of the plaintiff that liability to pay the amount, which is being claimed by defendant on the basis of Joint Evacuation Agreement, is not part of approved resolution plan and, therefore, defendant has lost its right to claim the said amount. G. As per plaintiffs, Demand Notice, dated 27.10.2020, issued by defendant raising claims for an amount of '6,48 crores for a period prior to CIR Process with threat to terminate the Joint Evacuation Agreement on failure of payment, has constrained them to file present suit, for passing an injunction prohibiting the defendant from terminating the Joint Evacuation Agreement and for specific performance thereof.
(2.) After service, defendant has preferred to file this application for rejecting the paint, in terms of provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC' for short).
(3.) It is contended on behalf of the defendant that the Act provides a complete mechanism for determination of disputes, which are necessarily and compulsorily to be decided under the provisions of the Act (Electricity Act) and the jurisdiction of the Civil Court or any other Court or authority, except as provided under this Act, is specifically ousted. Further that, both, i.e. plaintiff(s) and the defendant, are generating companies, within the meaning of Section 2(28) of the Act and dispute between the parties is a dispute between two generating companies with respect to Dedicated Transmission Line, as defined under Section 2(16) of the Act, and Section 86 of this Act provides functions of the State Commission under the Act, wherein Section 86(1)(f) specifically provides that State Commission shall discharge the functions 'to adjudicate upon the dispute between the Licencees and generating companies and to refer any dispute for arbitration'. An appeal has been provided under Section 111 to Appellate Tribunal against and order made by Adjudicating Officer or Appropriate Commission under the Act, except an order passed under Section 127 of the Act, and further, Section 125 of the Act provides that any person aggrieved by decision or order of the Appellate Tribunal may file an appeal to the Supreme Court, and the Supreme Court for duly explained sufficient cause, may also condone delay in filing appeal.;


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