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TMI Blog2024 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... standstill. The correspondence would rather reveal there was no option left for the appellant except to adhere to the demands raised by the Respondent lest the Respondent would not provide electricity in the coming sugar cane crushing season. Thus the payment of pre-CIRP dues by the appellant was paid under protest and under protection of the order of the Ld. NCLT and thus it related to the revival of the Corporate Debtor in terms of the Resolution Plan and to the Insolvency Resolution Process, hence the claim for refund of such amount is a matter which can be adjudicated under Section 60(5)(c ) of the IBC. In Tata Power Western Odisha Distribution Ltd (TPWODL) Anr Vs Jagannath Sponage Pvt Ltd, [ 2023 (9) TMI 1071 - SC ORDER ] and further in Southern Power Distribution Company of Andhra Pradesh Ltd Vs Gavi Siddeswara Steels (India) Pvt Ltd and Another [ 2023 (9) TMI 664 - SC ORDER ], the Hon ble Supreme Court held the power distribution company cannot insist on the payment of arrears for the purpose of the restoration of the electricity connection and such a matter would fall within the ambit of Section 60(5)(c) of the IBC. It is crucial to note the Respondent without having filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ghanashyam Mishra Vs Edelweiss Reconstruction Co Ltd which squarely applies in favour of the Appellant. 4. Before coming to the reasoning given in the impugned order let us state in brief the facts of the case:- a) M/s Maharashtra Shetkari Sugar Ltd, Corporate Debtor, was admitted to CIRP on 30.08.2018. A moratorium was imposed. The Corporate Debtor used to run a sugar crushing unit on which a large number of employees and farmers were dependent; b) Between 19th August, 2019 and 31st August, 2019 the COC approved the resolution plan filed by the Appellant with majority of 95.73% of the votes; c) on 07.11.2019 the Ld. NCLT approved the Resolution Plan filed by the Appellant in MA No.3199/2019. The liquidation value was fixed at Rs.68 Crores though the admitted claims were of Rs.491 crores; d) admittedly Respondent failed to file any claim. The appellant in terms of the Resolution Plan agreed to settle the disclosed claims at Rs.109.4 crores and also agreed to pay Rs. 2 crores towards the debt of the farmers; e) 65% of the settlement amount was to be sourced through loans for the revival of the Corporate Debtor and all contingent liabilities were waived off. Further while allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan; (ii) 2019 amendment to Section 31 of the I B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I B Code has come into effect; (iii) Consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued.' In that view of the matter, we thus find no merits in the prayer of the present Application and is of the considered view that the prayer sought in this Application sans merit. Accordingly, the Interlocutory Application bearing No. 32/2021 is disposed of. 6. Learned counsel for the Respondent supported the impugned order by referring to the earlier order dated 07.11.2019 which approved the Resolution Plan consisting of the following:- 30. xxxxxxxxx However, if any such business permit, license and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell knew the premises had no electricity as the appellant had inspected it prior to its purchase and despite that failed to make any provision for arrears of electricity dues and further the appellant itself agreed for one of the two options to make the payment vide its letter dated 07.01.2020. It was argued the appellant had cleared the payment due without any protest and rather gave an undertaking not to raise any dispute later and the contractual obligations between the parties thus came to an end much prior to the initiation of the CIRP and thus this dispute would not be covered under Section 60(5)(c) of the IBC. 8. Heard. 9. Section 60(5)(c) of the IBC read as under:- 60(5)(c ): any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. 10. Considering the facts and the submissions made we are unable to agree to the submissions made by the Respondent as the Resolution Plan related to revival of sugar crushing factory located in Distt. Parbhani, Maharashtra. Admittedly a sugar crushing factory is operational generally for six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erewith for your information. Accordingly as per the option felt proper by you, your written application will be sent to the Competent Officer Main Office, Mumbai for the purpose of approval. Before sending the Application for approval, it is necessary as per the Rules of the Company first to pay the amount of 2o/o of the total outstanding, i.e. Rs. 3,62,165/- as per rules of the Company. 12. To this on 25.11.2019 appellant wrote a letter as under:- With reference to the above subject, it is hereby requested that, we had filed an application for providing high voltage electric supply at factory of Maharashtra Shetkari Sugar Limited As such in that regard, as per your Letter No.3809 dated 15.11.2019, we have chosen the option of instalment package and 2o/o amount 1.e. Rs.3,62,165/- (Rupees Three lac Sixty Two Thousand One Hundred Sixty Five Only) as mentioned in your letter has been paid by us along with the application under protection of order passed by Hon'ble National Company Law Tribunal through NEFT bearing U.T.R. No.MAHBH19329656617. 13. The above correspondence would rather reveal there was no option left for the appellant except to adhere to the demands raised by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully takes over the business of the Corporate Debtor. 18. Thus the Respondent cannot be permitted to benefit from its own failure to file the claim and coercing the appellant to pay pre-CIRP dues for restoring the electricity. Even if the payment was not made by the appellant under protest and so was made only because of compulsion due to the coming season then also the Respondent was barred from seeking arrears of the amount that stood extinguished by operation of law as a precondition for restoring the appellants electricity connection. 19. In Ferro Alloys Corporation Ltd Vs. Sttae of Odisha and others (2021) ibclaw.in 82 H`C, the Court held as follows : - 32. In terms of Section 31 of the IBC, the ARP is binding on all creditors including Central Government and the State Government. Since all of the impugned demands raised against FACOR pertain to the period prior to the Plan Effective date i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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