9911796707
TMI Blog2022 (5) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... and disconnection charges are concerned, those obviously refer to the juncture of disconnection. However, only the reconnection charges, by definition, are incurred at the time of restoration of connection. This is not a case of ouster of the powers of the licensee conferred by the 2003 Act. Even if such powers under Section 56 of the 2003 Act remain intact, those become illusory in view of the dues themselves having been extinguished on the approval of the Resolution Plan, by independent operation of the IBC. Thus, even if the DVC retains its powers to recover debts and/or withhold electricity supply till the dues are cleared, there remain no dues to be cleared, since all pre- CIRP debts of the petitioner no.1-company, that is, the successful resolution applicant stand extinguished - the DVC acted without jurisdiction and de hors the law in further withholding the electricity supply of the petitioner no.1. The Damodar Valley Corporation (Respondent no. 1) are directed to restore the electricity supply of the writ petitioner no. 1-company at the earliest, positively within four weeks from date, subject to payment of the reconnection charges by the petitioner no. 1 - applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the West Bengal Regulatory Commission (Electricity Supply Code) Regulation 2013, on the basis of which the DVC makes its claim, is contrary to the objectives and provisions of the Insolvency and Bankruptcy Code (IBC), 2016 and is, thus, hit by Section 238 of the IBC, which gives the IBC primacy over other laws, including the Electricity Act, 2003. In support of such submission, the petitioners cite Paschimanchal Vidyut Vitran Nigam Ltd. V. Raman Ispat Pvt. Ltd. Ors. [2019 SCC OnLine NCLAT 883]. 9. For effective revival of the debtor company, the Resolution Plan is binding with immediate effect from its approval by the NCLT on October 8, 2021, it is argued. Moreover, Section 43 of the Electricity Act, 2003 mandates the DVC to restore supply of power, since the claims of the DVC stand extinguished in law. 10. Moreover, it is contended by the petitioners, the DVC has accepted the amount of Rs. 7,45,608/- tendered by the petitioners and is now estopped from claiming its pre-CIRP dues as a pre-condition for restoring electricity supply. 11. The learned Senior Advocate appearing for the petitioners contends that although an appeal against the order approving the Resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there would be no ground to terminate the agreement, since the termination was not on a ground independent of the insolvency. 18. Applying the same ratio, it is argued, the present claim of the petitioners for restoration of electricity supply should also be turned down. 19. As far as the decisions cited by the petitioners are concerned, the learned Senior Advocate for the DVC submits that there is no inconsistency between those and Gujarat Urja Vikas Nigam (supra). 20. In DVC v. Karthik Alloys (supra), the DVC had disconnected supply during the moratorium period, as opposed to the present case, where such disconnection was earlier. 21. In Sri Vasavi Industries (supra), it is contended, Gujarat Urja (supra) was not considered. 22. Lastly, learned senior counsel appearing for the DVC submits that the undertaking given by the petitioners that they will not initiate contempt proceedings during pendency of the appeal before the NCLAT, by necessary implication, includes filing the writ petition for implementation of the directions given by the NCLT. 23. In reply, the learned Senior Advocate for the petitioners seeks to distinguish Gujarat Urja (supra) on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dues and secondly, to withhold reconnection of electricity till repayment of such dues. Thus, both the said rights are dependent on the single touchstone dues , which relate to electricity and other charges due from the consumer at the time of disconnection. Admittedly, in the present case, disconnection took place prior to commencement of the CIRP; hence, the dues are pre-CIRP debts. 31. Section 56 further provides that the electricity supply may be discontinued until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid but no longer. The expression such charge refers to the first part of the section which relates the charge to the time of disconnection. Insofar as the electricity charges and disconnection charges are concerned, those obviously refer to the juncture of disconnection. However, only the reconnection charges, by definition, are incurred at the time of restoration of connection. 32. Hence, in the present case, as per the scheme of the IBC, as interpreted in the light of the judgments cited by the petitioners, including Essar Steel (supra), Ghanshyam Mishra (supra), Sri Vasavi (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not be an irreversible act, so much to the detriment of the DVC that it would suffer substantial hardship. 38. Another determinant is the acceptance of the DVC of the amount of Rs. 7,45,608/- on November 8, 2021, that is, after and in terms of the order of approval of the Resolution Plan by the NCLT on October 8, 2021. Such acceptance of the amount can definitely be construed as waiver of the right of the DVC, if there was any, to discontinue electricity supply. 39. Thus, in the light of the above observations, W.P.A. No.3360 of 2022 is allowed, thereby directing the Damodar Valley Corporation (Respondent no. 1) to restore the electricity supply of the writ petitioner no. 1-company at the earliest, positively within four weeks from date, subject to payment of the reconnection charges by the petitioner no. 1. However, such restoration of connection shall be subject to the final result of the appeal pending at the behest of the DVC before the NCLAT which will, in turn, affect the approval of the Resolution Plan itself, which has extinguished the prior debts of the petitioner no. 1-company as of now, unless set aside. 40. There will be no order as to costs. 41. Urgent c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
