The Supreme Court has asked NTPC to “keep ready and available” its resolution plan for acquisition of stressed Jhabhua Power Ltd (JPL) after promoters alleged suppression of facts by the former during the insolvency proceedings for the Madhya Pradesh-based thermal plant.

The country’s largest power generating company had acquired the 600-MW Jhabua thermal project of Gautam Thapar-owned Avantha Group for `1,830 crore through the Insolvency and Bankruptcy Code process. The NCLAT had on July 4 upheld the March 8 order of the National Company Law Tribunal, Kolkata Bench, that had declared NTPC Ltd as the successful resolution applicant in the corporate insolvency resolution of JPL. This appellate tribunal’s order has been challenged by Avantha Holdings Ltd (AHL) and Anil Bhargava, the promoter of JPL, before the apex court.

JPL was submitted to the NCLT in May 2019 after defaulting Rs 35 crore to FLSmidth Pvt Ltd, an operational creditor. The tribunal had found the one-time settlement offer made by AHL not “commercially viable”.

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A Bench led by Justice Surya Kant while issuing notice from NTPC, resolution professional Abhilash Lai and Committee of Creditors (CoC) of JPL through Axis Bank asked the PSU power generator to keep a copy of the resolution plan (RP) “ready and made available” on November 21, the next date of hearing

Challenging the NCLAT’s order that dismissed its disqualification plea and declared NTPC Ltd as the successful resolution applicant, Avantha alleged that the appellate tribunal had wrongfully upheld the CoC’s decision in rejecting its proposal under Section 12A of the IBC.

AHL said that it had time and again requested the RP to place the proposal before the CoC for its consideration, but the RP and CoC had “unfairly” considered the NTPC’s RP despite the latter “evidently being ineligible to submit a RP under Section 29A(C) of the Code.”

The appeal stated that “NTPC had submitted its first RP on December 30, 2019 without an affidavit certifying compliance under Section 29A of the Code. As on this date, NTPC was the promoter of and held 25.51% equity shares in Ratnagiri Gas and Power (RGPPL) and 20.225% in Konkan LNG (KLL) and was in the control and management of both. The accounts of RGPPL and KLL had been downgraded as NPAs by their respective lenders much prior to the insolvency commencement date of March 27, 2019 and the same had not been cured…”

However, NTPC, with “mala fide on its part,” failed to disclose this fact in its preliminary affidavit, it said, adding that subsequent disclosure after falsely concealing a material fact will not amount to rectification of default by NTPC and is in the nature of a deliberate misrepresentation, AHL stated.

According to AHL, subsequently, both KLL and RGPPL entered into settlement agreements with GAIL and its lenders, and with NTPC, respectively, it added.

“The appellate tribunal’s order is premised on the erroneous finding that the accounts of RGPPL and KLL were not NPA for a period of one year before initiation of CIRP of the corporate debtor,” the promoter group told the SC.