PATHERYA,J. - (1.) By this application the petitioner/judgment debtor (Bagla Group) seeks a declaration that the consent decree dated 26th April, 2002 be declared null and void or the same be set aside on the ground that the basis of valuation is not only incorrect but the valuers were biased against the petitioner as they are Chartered Accountants of 15 companies of the Birla Group, and therefore have acted in favour of the decree holder/respondent (Birla Group). No copy of the draft report was given to the petitioner/judgment debtor although it has been mentioned in the Report that the draft report has been given to the management of NHL. By management the valuers could have meant only the Birla Group as the Bagla Group had relinquished management of the NHL project in October 2002. The commissioning was in 2006 and the valuation is based on the DCF method, i.e., on financial projections instead of the NAV method. As the valuation is as per the information given by the management, the Bagla Group ought to have been heard. By letter dated 3rd July, 2003 the Birla Group informed the valuers of its appointment and requested it to enter upon the reference and value the shares of NHL.
(2.) As per the Power Purchase agreement dated 12th March, 1998 Texmaco was to purchase 70 lac units from NHL @ Rs.4/ - per KWH in 2005 -06. The said was to increase by Rs.0.30 per unit per year and would be Rs.4.30 KWH for 2007 -08 and Rs.4.60 KWH for 2009 -10. The application of the DCF method will be apparent from the Report of the Valuers and annexures thereto.
(3.) The DCF method followed has proved prejudicial to the Bagla Group as the net worth has stood decreased so also the profits calculated thereon. On the contrary if the valuation had been undertaken by adopting the NAV method and the rates as agreed in the Energy Sharing Agreement not only would the profits have increased but also the net worth of NHL. This aspect was totally ignored by the valuers.;