2023 (1) TMI 290 - AT - Insolvency and Bankruptcy

Recovery of Electricity dues - jurisdiction of Adjudicating Authority to waive the electricity dues recoverable from the premises - whether the electricity dues can be waived in the Resolution Plan? - HELD THAT - The issues which have been raised by the Appellant in this Appeal are fully covered by the judgment of this Tribunal in DAMODAR VALLEY CORPORATION VERSUS DIMENSION STEEL AND ALLOYS PRIVATE LIMITED, BIJOY MURMURIA, RESOLUTION PROFESSIONAL OF THE CORPORATE DEBTOR, C/O SUMEDHA MANAGEMENT SOLUTION PRIVATE LIMITED, C.P. ISPAT PRIVATE LIMITED 2022 (5) TMI 1365 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI . In the above case the approval of plan was challenged on various grounds. One of the ground raised was that Appellant was entitled to claim unpaid dues as per West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2013 - it was held in the case that When any statutory provision including the provisions of West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2013 are overridden, the question of contravention of such provision does not arise. There are no good ground to interfere with the order passed by the Adjudicating Authority approving the Resolution Plan. There is no merit in the Appeal. The Appeal is dismissed.

Summary

Issues involved:
- Appellant challenges Adjudicating Authority's order regarding electricity dues waiver in Resolution Plan.
- Interpretation of statutory regulations regarding unpaid dues in the Resolution Plan.

Analysis:
1. The Appellant contested the Adjudicating Authority's decision to waive electricity dues recoverable from the premises in the Resolution Plan. The Appellant argued that the Authority lacked jurisdiction to waive such dues and cited the judgment in "Telangana State Southern Power Distribution Company Ltd. & Anr. vs. M/s Srigdhaa Beverages, 2020 SCC OnLine SC 478" to support their position. They insisted on the payment of previous dues before restoring electricity supply.

2. The issues raised by the Appellant were addressed in a previous judgment by the Tribunal in "Company Appeal (AT) (Ins.) No.62 of 2022, Damodar Valley Corporation vs. Dimension Steel and Alloys & Ors., decided on 23.05.2022." The Tribunal clarified that the Resolution Plan's approval does not contravene statutory regulations, specifically West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2013. The Tribunal emphasized that the Code's provisions override any inconsistent laws, rendering the regulations inapplicable once a Resolution Plan is approved under the Code.

3. Another relevant judgment considered was in "Company Appeal (AT) (Ins.) No.961 of 2021, Eastern Power Distribution Company of Andhra Pradesh Limited. Vs. Maithan Alloys Limited & Ors., decided on 26.05.2022," which discussed the implications of the Telangana State Supreme Court judgment in the context of IBC proceedings. It was clarified that the IBC governs the recovery of dues, including operational debts and charges during the CIRP period. The Tribunal reiterated that the IBC's overriding effect under Section 238 precludes the recovery of pre-CIRP and post-CIRP dues outside the IBC proceedings.

4. Ultimately, the Tribunal found no grounds to interfere with the Adjudicating Authority's decision to approve the Resolution Plan, dismissing the Appeal. The judgment in "Telangana State Southern Power Distribution Company Ltd. & Anr. vs. M/s Srigdhaa Beverages" was deemed inapplicable to the present case, affirming the Authority's decision regarding the electricity dues waiver.