2019 APEX COURT DIGEST – VOL-1
5. Vacation of interim orders – application – proceedings are filed against respondent No. 2 in the National Company Law Tribunal (“NCLT”) on the ground that respondent No. 2 is unable to pay its tax and in those proceedings interim Order dated 09.11.2018 is passed, admitting the petition, declaring moratorium under Section 14 of the Insolvency and Bankruptcy Code 2016 (“IBC”) and appointed Interim Resolution Professional to carry out the functions as mentioned in the IBC. – the interim arrangement – Vide Order dated 03.08.2017, this Court had directed that Ukni Deep OC Grade-9 coal be supplied to respondent No. 2-Company at the rate of Rs. 2100/- per ton and Bellora Naigaon OC Grade-10 coal at the rate of Rs. 2000/- per ton till the matter is decided. It was made clear that this arrangement would be during the pendency of the instant appeal.- Thereafter, another Order was passed on 06.11.2017 which was an agreed order. That order records that respondent No. 2 shall be lifting 3000 tonnes of coal per day against the payment in cash -I.A. No. 180144/2018 in C.A. No. 2845/2017 : In this application, filed by the appellants, following
prayers are made:
“a) Vacate the Orders dated 03.08.2017 and 06.11.2017 passed by this Hon’ble
Court, insofar as it requires Appellant No. 2 to supply 3000 tonnes of coal per day to Respondent No. 2 at reduced prices and direct Respondent No. 2 or
its group entities to deposit with the Appellants or with this Hon’ble Court
during the pendency of these proceedings the differential amount between the contract price of coal to be supplied to Respondent No. 2 and the price at which Respondent No. 2 has received coal under this Hon’ble Court’s order dated 03.08.2017.
b) Direct Respondent No. 2 or its group entities to deposit with the Appellants
or with this Hon’ble Court during the pendency of these proceedings all amounts due to the Appellants under the FSAs; and
c) Pass such further orders as this Hon’ble Court may deem fit and proper
in the nature and circumstances of the case and in the interest of justice.”
Apex court held that since the respondent No. 2 is not lifting coal w.e.f. 28.12.2018, we make it clear that in case respondent No. 2 is not buying the coal as per the interim arrangement, it would always be open to the appellant(s) to sell the coal to third
parties. As far as taking action by the appellants under the contract is concerned, that is not the subject matter of this appeal. At the same time, the parties shall have right to approach the NCLT by way of appropriate application and it would be for the NCLT to decidec the said application(s) on its own merits and pendency of the present appeal would not deter the NCLT from continuing with the proceedings.