OFFICE OF THE DIRECTOR OF INDUSTRIES, ODISHA, CUTTACK, ORDER SHEET MSEFC Case No.50/2022. Mis Kalinga Insulation, Petitioner At-Udayabhat, Dochhaki, Po-Paradeep Garh, P.S-Paradeep, District-Jagatsinghpur Versus Opp.Parties 1.Mis AES(India) Pvt. Ltd., AtUnit1117, 11" Floor, Block-B, Batika tower, Sector-54, Golf Road, Gurgaon, Haryana 2.0disha Power Generation Corporation Ltd.,. Executive Director, Zone-A, 7” Floor, Fortune Towers, Chandrasekharpur, Bhubaneswar 3.Odisha Power Generation Corporation Ltd., 1B Thesmal Power Station, At/Po-Banarpali, District-Jharsuguda The MSEFC met on 30.01.2023 at 10.00 A.M. to adjudicate the claims of Micro & Small Enterprises i.e. M/s Kalinga Insulation, AtUdayabhat, Dochhaki, Po-Paradeep Gath, P.S-Paradeep, District-Jagatsinghpur Vrs. 1.M/s AES(India) Pvi. Ltd,, AL-Unitt 117, 11" Floor, Block-B, Batika tower,Sector-54, Golf Road, Gurgaon, Haryana 2.Odisha Power Generation Corporation Ltd., Executive Director, Zone-A, 7" Floor, Fortune Towers, Chandrasekharpur, Bhubaneswar. 3.Odisha Power Generation Corporation Ltd.,|B Thermal Power Station AUPo-Banarpali, District-Jharsuguda Md. Sadique Alam , LAS., Chairman Director of Industries-cum-M.D,OSFC. Sri Goutam Patra, Member Convener, SLBC 3. Sri Deepak Kajaria, Member Presideni, OSSIAHistory of the case. MSEFC on 13.10.2022 claiming total amount of Rs. 3,26,60,881.31 ( Rs 1,96,01,693.00 towards principal + Interest. Rs.1,30,59,188.31 ( From 09.01.2020 to 21.06.2022) from the O.P. ‘The petitioner provided services to the O.P. The O.P has made part payment leaving a balance outstanding amount(Principal) of Rs 3,26,60,881.31 The claim petition was forwarded to the O.Ps on 13,08,2022 to file the Counter. The O.P No.01 has filed the counter on 13.10, 2022. The O.P No.02 & 03 have prayed four weeks time to file the written statement, The Petitioner has filed the Rejoinder on dt.1.14 2022. The O.Ps purchased & held 49% of the equity shareholding in O.P No.02 ie Odisha Power Generation Corporation Ltd Pursuant to Government of Odisha policy for Subcontractors including EDAC & one Bhavani Erectors Pvt. Ltd ( Bhavani). Both Bhavani & EDAC engaged the petitioner as a specialized Scaffolding contractor to work on the project Notice has been issued to all the parties to attend 97" Sitting of the MSEFC to be held on 17.11.2022, The petitioner, O.P No. 01 & O.P No. 02 are present in 97" Sitting of the MSEFC heid on 17.11.2022,The summary of the submission by O.P No.01 are as under. Sometime on or around 1999, with its associated company purchased & held 49% of the equity shareholding in OP No.02 ie Odisha Power Generation Corporation Ltd. pursuant to Govemment of Odisha policy for opening up the energy Sector to private enterprises, “ OP No.02 & Bharat Heavy Electricals Utd. BHEL) entered into a contract for Supply of equipment & a contract for services Pertaining to construction of OPGC Unil3 & § Expansion Project, The O.P No. 01 is Not a party to it. BHEL appointed Warious principal sub-contractors including EDAC Engineering Ltd. & Bhavani Erectors Pvt. Ltd, (Bhavani). In turn, Bhavani & Edac engaged the petitioner as a Specialize scaffolding contractor to work on the Project. This O.P has only stepped in to a limited extent to facilitate completion & hence to that intent entered into incentives contracts with the petitioner. tinder such contracts & no balance payable amount is pending with the OP No.01 & further claims by the petitioner are wrongly raised, “ This O.P is not in any manner concemed with the contracts between the ettioner and/ or O.P No.02 and/or BHEL andior EDAC and/or Bhavani, Hence the petitioner's alleged claim, if any, can only against O.P No, 02 and/or BHEL and for EDAC and / or Bhavani and not against this O.P. “The petitioner seeks to abuse the beneficial legislation that is the MSMED Act, 2006 and seeks to unjustly enrich itself at the cost of this O iBUpon perusal of the records, the Council noticed that the petitioner has submitted ‘eloinder affidavit against the counter of O.P No. 01 on 14.11.2022 which has been acknowledged by the O.P No. 01 on the same day ie 14.11.2022. The petitioner submits that the O.P No. 01 has admitted that they stepped into the arena of construction work of unit-3 & unit-4 as it was not satisfied with timely Progress, LOls issued at different dates only corroborate the extent of involvement of the O.P no. 01 in the project. The petitioner further submits that the change of alternation, moderation in share pattern of the Company can not absolve its liability and as such the bonafide claim of the petitioner can not be obliterated by the change of shareholding pattern of the Company. The petitioner further submits that the O.P a No 91 has admitted that it has the contractual liability to pay the petitioner all the B dues springing forth from the LOI No.13. The petitioner further submits that the OP n fay 9 A No.01 admits to have issued LO!s at different times and received the usufructs thereof, can not exhibit Corporate hand's off to disown its liability. The O.P No.02 & 03 pleaded before the Council that they can not be impleaded as Contesting parties since they have not entered into any kind ofd agreement with the petitioner on the project The Council observed that the O.P No. 02 & O.P No. 03 have not filed counters against the claim petition of the petitioner. Under the above circumstances, the Council initiates conciliation process under section 18(2) of the MSMED Act 2006 for amicable settlement of the dispute among the erring parties,‘The Council directed the petitioner to file detail spread sheet incorporating O.P wise/Eill wise/Date wise claim made & payment received against such claims before the next Sitting of the Council The O.P No. 01 is directed to file the counter against the rejoinder affidavit of the petitioner before the next Siting of the Councit & send the copy of the same sitectly to the petitioner under intimation to the Council. Further the O.P No 02 &8 OP No.03 are directed to file the counter against the claim petition of the petitioner in the Council & send the copy of the same to the petitioner directly under intimation to the unc, The case is adjourned. ‘Notice has been issued to both the parties to attend 98" Sitting of the MSEFC to be held on 27.12.2022. Both the parties are present in 98" Sitting held on 27.12.2022 The O.P No.02 & O.P No. 03 filed the written statement against the claim petition of the petitioner on 27.12.2022 & the copy of the same has been acknowledged by the petitioner on the same day i.e 27.12.2022. The O.P No. 02 & 03 have literally stated in their written statement that the petitioner & the OP No. 01 Le M/s AES India had a contractual relationship and accordingly governed by the same. However the there is no leeway to claim verbal commitments as stated by the petitioner with respect to OPGC. The OPGC is ne way connected to the claimant & had never given any verbal commitment to anybody. The Council noticed that the petitioner has submitted detail spread sheet incorporating OP wiselbill wise/date wise claim as per the direction of the Council in 97" Sitting held ‘on 17.11.2022 the copy of the same has been acknowledged by the O.P on 22.12.2022Under the above circumstances the Council declares the conciliation process under section 18(2) as failed & invokes the arbitration Proceeding under section 18(3) of the MSMED Act 2006 for settlement of the dispute among the parties. The Council further directed the petitioner to file rejoinder against the written Statement of O.Ps before next Sitting of the Council & send a copy of the same to the O.Ps directly under intimation to this Council. The case is adjourned Notice has been issued to both the Parties to attend 99" Sitting of the MSEFC to be held on 30.01.2023. ‘The petitioner & the OPs are present in 99" Sitting of the MSEFC held on 30.01 2023. The petitioner filed rejoinder against the written statement of the Ops on 30.01.2023 & the copy of the same have been received by the OPs on 30.01.2023, ‘The major submissions of the petitioner in their rejoinder are as under. ') The whole job which is involved in the case has been undertaken was performed at Unit 3 & Unit 4 at the OPGC Site and Power Houses where work was done is located at OPGC Banharpali Site. It was also specifically indicated therein that “Payment shall be made as per certified quantities of OPGC Engineer In charge with agreed Unit Price”. In fact Bills of the claimant which were paid had in fact been certified by the OPGC Engineer. Therfore it 's entirely false to say that OPGC is stranger to the present proceeding and as such there is no mis-joinder and/or non-joinder of parties. ii) The entire work was initiated, processed & concluded under the aegis of OPGC which is major share holder. After the CCI order and looking into the share holding structure, OPGC can not be absolved of the liability,Mi) AES is a different registered legal entity but it was the share holder of the company at whose location contracts were duly performed at it's Baanharpali Power House Site The OP No. 2.& 3 prayed before the Council to exonerate them as contesting parties as they do not have any role in the dispute which the Council rejected at this stage of the adjudication. ORDER ~~ Under the above circumstances the Council continues the arbitration proceeding under section 18(3) of the MSMED Act 2006 for settlement of the dispute among the parties. The case is adjourned. 1, Md, Sadique Alam , LAS., otc Se ou Director of Industries-cum-M.D,OSEC Chairman. MS Es ino sisha, Cuttack. 2. Sti Goutam Patra, Member OPalR Convener, SLBC 2/0] (25 3. Sri Deepak Kajaria, .. Member President, OSSIA dip ae\ily