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TMI Blog2022 (4) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench) in IA (IB) No. 805 / KB/ 2020 in CP (IB) No. 1221 /KB/ 2018. 2. The Appellant/DVC is aggrieved by the impugned order on the ground that the approved resolution plan of the Successful Resolution Applicant contravenes laws in force and therefore, is liable to be quashed and set aside. 3. In brief, the factual matrix of the case is that the Appellant/DVC and the Respondent No. 1/VSP Udyog Pvt. Ltd. (in short 'VSP Udyog'), who is the Corporate Debtor, entered into a Power Purchase Agreement for sale and purchase of electricity on 12.04.2005. In the course of supply of electricity, a large amount of dues amounting to Rs. 8,42,93,534/- became outstanding for payment by the Corporate Debtor for which a demand letter was served upon the Corporate Debtor/VSP Udyog by the Appellant/DVC. In accordance with the extant West Bengal Electricity Regulatory Commission (in short 'WBERC Regulations') formulated under the Electricity Act, resulting in deemed termination of the electricity connection given by the Appellant/DVC to the Corporate Debtor/VSP Udyog. The Appellant has further stated that Corporate Insolvency Resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws is seen not brought out and therefore, there is nothing in the plan, so as to disapprove it. ........ Accordingly, we hereby approve the resolution plan of M/s Amit Metaliks Limited....' She has further contended that the extant laws in respect of supply of electricity has been contravened in that future dues have also been waived in the resolution plan (clause 9.3.4 of the approved resolution plan). She has further submitted that the total claim of all the operational creditors is Rs. 950.919 Crores and that of the workmen is Rs. 4.16 Crores and these claims have not been approved for payment in accordance with the provisions of IBC. Furthermore, Regulation 38(1)(a) the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 lays down that the resolution plan shall include a statement as to how it has dealt with the interest of the all stakeholders, including the financial creditors and operational creditors which was not done. 8. The Ld. Senior Counsel for Appellant has further argued that paragraph 12.1.29 of the resolution plan which provides that 'Licenses, registrations, permits, clearances, exemptions rights, ince ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IBC which approved the resolution plan does not, and therefore, it deserves to be quashed and set aside and the impugned order also deserves to be set aside. 11. In reply, the Learned Senior Counsel for Respondents No. 1 and 3 has argued that DVC is an operational creditor which has been treated in accordance with provisions of IBC regarding its past dues relating to the pre-CIRP period. He has also pointed out that the liquidation value of the corporate debtor is Rs. 50.29 crore and looking to the liquidation value, the share of operational creditors has been decided in accordance with section 30(2)(b) of the IBC. 12. The Ld. Sr. Counsel for the Respondents has urged that a dissenting financial creditor had carried an Appeal to the Hon'ble Supreme Court regarding the approved resolution plan of this same Corporate Debtor and the Hon'ble Supreme Court vide judgment in the case of India Resurgence ARC Private Limited vs. Amit Metaliks Ltd.& Another [2021 SCC Online SC 409] has held that the resolution plan is compliant of all the legal provisions. He has argued that the Appellant cannot question the legality of resolution plan in this appeal. He has also urged that the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors.: (2019) 12 SCC 150 and Maharashtra Seamless Limited v. Padmanabhan Venkatesh and Ors.: (2020) 11 SCC 467, summarised the principles as follows: "77. In the scheme of IBC, where approval of resolution plan is exclusively in the domain of the commercial wisdom of CoC, the scope of judicial review is correspondingly circumscribed by the provisions contained in Section 31 as regards approval of the Adjudicating Authority and in Section 32 read with Section 61 as regards the scope of appeal against the order of approval. 77.1. Such limitations on judicial review have been duly underscored by this Court in the decisions above-referred, where it has been laid down in explicit terms that the powers of the Adjudicating Authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to Adjudicating Authority lies within the four corners of Section 30(2) of the Code, which would essentially be to examine that the resolution plan does not contravene any of the provisions of law for the time being in force, it conforms to such other requirements as may be specified b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection from the Appellant-DVC will not be of concern to DVC. The Ld. Sr. Counsel for the Appellant has stated that the Successful Resolution Applicant is free to take a new connection from any other discom under WBERC Regulations. In light of the statements of Ld. Sr. Counsels for both the parties, we are of the view that any provision in the approved resolution plan with relates to any waiver or relief with regard to a new connection from the Appellant/DVC need not be gone into and hence, insofar as the rights of the Successful Resolution Applicant about taking a new connection from the Appellant/DVC is concerned, it is not significant and the Successful Resolution Applicant is at liberty to take a new electricity connection from any discom under WBERC Regulations. 16. In view of the fact that the resolution plan of the corporate debtor VSP Udyog has been affirmed by Hon'ble Supreme Court in the matter of India Resurgence (Supra), the challenge to the approval of resolution plan cannot be sustained. Moreover, since the successful resolution applicant has not shown interest in taking a fresh connection from the Appellant/DVC we are of the view that the grievance of DVC regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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