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TMI Blog2018 (4) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the rules and law applicable but DVC, cannot disconnect without issuing prior notice to the Corporate Debtor. - Company Application CA (IB) No. 110/KB/2018 In Company Petition CP (IB) No. 596/KB/2017 - - - Dated:- 16-2-2018 - MR. JINAN K. R. Per : Jinan K. R. ORDER 1. This is an Application under Section 14(2) of the Insolvency and Bankruptcy Code, 2016, filed by the Insolvency Resolution Professional in the matter of Citi Bank NA Vs. Cosmic Ferro Alloys Limited, being Company Petition No. CP(IB) No.596/KB/2017, which had been filed by Citi Bank NA before this Tribunal under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with rules and regulations framed thereunder, against the Corporate Debtor, Cosmic Ferro Alloys Limited on October 30, 2017. 2. Vide Order dated 16-01-2018, this adjudicating authority admitted the Company Petition and appointed the present Applicant as the Insolvency Resolution Professional with directions to take all necessary action(s) under the provisions of the I B Code. 3. It is alleged in the application that the upon being appointed as the Insolvency Resolution Professional, the applicant, in the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It raised the following contentions : 10. The DVC has raised preliminary objection regarding maintainability of the aforesaid application as it is misconceived, suffers from suppression of material facts and submission of distorted facts. 11. Further, it has been stated by DVC that the Electricity Act, 2003 and the West Bengal Electricity Regulatory Commission is the competent authority to adjudicate over the disputes like the one raised by the applicant. 12. It has been further stated that the advertisement dated 20-01-2018 was published in the newspapers beyond the statutory period of 3 days from the date of such appointment of the Insolvency Resolution Professional, being 16-01-2018, as clearly provided under Section 15 of the Insolvency and Bankruptcy Code, 2016, read with Chapter III, Regulation 6 of The Insolvency and Bankruptcy Board of India(Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as such, the said public announcement was bad in law. 13. It has been stated that DVC is presently suffering from severe financial crisis due to huge amounts of dues outstanding on account of electricity consumption from various consumers. The main fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Applicant is in constant fear and threat of losing the assets of the Corporate Debtor which can be damaged, misplaced or stolen, due to lack of electricity supplied by DVC at Barjora Plant. 19. Heard both sides. Upon hearing he argument and on perusal of the records, the short point that arises for the determination is whether restoration of electricity supply disconnected by the DVC is to be allowed as prayed for by the applicant ? 20. This is an application filed by the Interim Resolution Professional, Mr. Anish Niranjan Nanavaty, in the above said Company Petition in which the Corporate Resolution process has been initiated at the instance of the Financial Creditor, Citi Bank, NA in respect of the Corporate Debtor, Cosmic Ferro Alloys Limited. Vide Order dated 16-01-2018, the application was admitted declaring moratorium as on the date of the admission i.e. from 16-01-2018, till the completion of Corporate Insolvency Resolution process. 21. The Ld. Counsel appearing on the side of the IRP prays for immediate restoration of the electricity supply disconnected by the DVC, the sole distributor of power and electricity in order to restart the plant operations and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code in the case in hand. Moreover sub section(2) of section 14 of the Code, provides a clear mandate that supply of essential goods or services to the corporate debtor shall not be terminated or suspended or interrupted during the moratorium period. It is good to read sub-section (2) of section 14. it reads as follows : The supply of essential goods or service to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. 25. As per Regulation 32 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 electricity is described as one of the essential services. 26. The above provisions of the Code empower this adjudicating authority to pass an order directing the DVC to restore the electricity with immediate effect. 27. One another contention stressed on the side of the DVC is that the Electricity Act, 2003 and the West Bengal Electricity Regulatory Commission is the competent authority to adjudicate over the disputes like one raised in the instant application and therefore this adjudicating authority has no power to issue direction as prayed for. The above said contention also has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar to DVC in the instant case, preferred an appeal against the NCLAT, New Delhi Bench Order directing it to restore the electricity connection, which was disconnected by the Appellant in the said case. 33. In the above said case, electricity supply of the Corporate Debtor was disconnected on 25-08-2017 and the application for Insolvency Resolution process as against the Corporate Debtor was admitted on 31-08-2017. thereby moratorium commenced from 31-08-2017. 34. Since the electricity supply was disconnected, an application was filed by the IRP in that case for restoration of the electricity which was allowed by the adjudicating authority by an Order dated 09-10-2017 and thereafter, the electricity was restored on 12-10-2017 but the Corporate Debtor failed to pay the outstanding dues subsequent to the restoration of the electricity. 35. The Hon ble NCLAT, New Delhi, in the said case, held that Uttarakhand Power Corporation Ltd. Cannot recover any amount due for the period prior to 31-08-2017 though it will be open to the appellant to submit the claim before the Resolution Professional. In so far as the current charges are concerned, we hold that the appellant is enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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