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TMI Blog2025 (2) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... as admitted against the Corporate Debtor on 03.02.2020 on an Application filed by the State Bank of India (SBI). iii. The Appellant disconnected the electricity on 19.02.2020. iv. An I.A. No. 692/2020 was filed by the Resolution Professional (RP). On 19.10.2020, Adjudicating Authority directed the Appellant to restore the electricity in the premises within 7 days of payment of all consumption charges pertaining to the Moratorium period. v. The Appellant on 13.11.2020 has filed its claim to the RP, which was admitted to the extent of Rs. 2,32,13,387/-. vi. A Resolution Plan was approved by the Committee of Creditors (CoC) on 21.09.2021. As per the Resolution Plan, the Appellant offered to make payment of Rs.4,64,003/-. The Resolution Plan was approved by the Adjudicating Authority vide Order dated 21.09.2021. By the Order approving the Resolution Plan, the Adjudicating Authority also granted certain reliefs and concessions. vii. On 29.10.2021, the Corporate Debtor wrote to the Appellant that Corporate Debtor is ready to pay 4.643 Lakhs to the Appellant as per the Order dated 21.09.2021, on which power supply from the Appellant be restored to the factory. On 03.11.2021, App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Power Purchase Agreement on 13.05.2022 and had paid the outstanding dues. The Appellants were bound to receive the amount outstanding against the Corporate Debtor before resuming supply of the electricity by virtue of WBERC (Electricity Supply Code Regulations) dated 07.08.2013 and Respondent No.1, having entered into the Agreement and made the payment, it has no authority or jurisdiction to file an Application for refund of the payment. It is submitted that issue which arose out of the fresh contract was beyond the jurisdiction of the Adjudicating Authority. Adjudicating Authority committed error in entertaining the Application filed by the Respondent No.1. Learned Counsel for the Appellant has referred to Regulation 4.6.4 of WBERC Regulations. It is submitted that Resolution Plan having been approved and implemented, the process of IBC comes to an end and after entering into a new Power Purchase Agreement, there was no right in the Respondent to file Applications before the Adjudicating Authority and Adjudicating Authority has committed an error in entertaining the Application and issuing the directions. It is submitted that Respondent entered into new Power Purchase Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: i. CIRP against the Corporate Debtor commenced on 03.02.2020. The Corporate Debtor was receiving supply from Appellant as per Power Purchase Agreement, 14.12.2009. ii. After insolvency commencement on 19.02.2020, the power supply was disconnected which was restored subsequent to the Order dated 19.10.2020 passed by the Adjudicating Authority. The Appellant filed its claim before the RP on 30.11.2020. RP admitted the claim to the extent of Rs.2,32,13,387/-. The Resolution Plan was approved by the Adjudicating Authority on 21.09.2021. iii. As per the Resolution Plan under the distribution mechanism, the Appellant was allocated amount of Rs.4,64,003/- against its admitted claim of Rs.2,32,13,387/-. The amount approved by the Resolution Plan was paid by the Respondent No.1 on 02.11.2021. The Order of the Adjudicating Authority approving the Resolution Plan also granted certain relief and concession to the SRA. 8. It is useful to notice Paragraph 24 Item No.1 of the Order of Adjudicating Authority dated 21.09.2021 which is relevant for the present case: "24. The Reliefs, Exemptions and Waivers sought by the Resolution Applicant from the Adjudicating Authority are set out be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' reported in (2021) 9 SCC 657. The law declared by the Hon'ble Supreme Court is well settled that the Resolution Plan is binding on all stakeholders. The claim of Appellant of electricity dues pre-CIRP including the payment of delayed charges regarding pre-CIRP stood dealt with in the Resolution Plan by virtue of allocating amount of Rs.4,64,003/-. Hence, DVC was not entitled to claim pre-CIRP dues when the SRA applied for resumption of electricity supply. DVC was entitled to take all necessary charges, including security and reconnection charges, but could not have insisted on payment of pre-CIRP dues outstanding on the Corporate Debtor. The correspondence entered between the Parties after the approval of the Resolution Plan has been brought on record in the Reply filed by the Respondent No.1. It is relevant to notice correspondence between the Parties to consider the issues raised between the Parties. On 29.10.2021, the Corporate Debtor wrote to the Appellant for resumption of power supply. Letter dated 29.10.2021 reads as follows: "MIFL/DVC/21-22/01 Date: 29.10.2021 The Chief Engineer (Commercial), Damodar Valley Corporation, 1st Floor, DVC Towers, VIP Road, Kolka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Clause 4.6.4 of WBERC (Electricity Supply Code) Regulation dated 07.08.2013 which states as follows. "Notwithstanding anything contained contrary elsewhere in these regulations were deemed termination of agreement has taken place, then o the basis of application of any consumer, new service connection can only be provided in the same premises if the outstanding dues against the deemed terminated consumer is cleared along with the late payment surcharge." The due amount payable to DVC is Rs. 1,72,23,024/- as on 31.03.2021 along with further delayed payment surcharge as applicable in terms of West Bengal electricity Regulatory Commission (Terms and Conditions of Tariff) Regulation, 2011 till the ate of actual payment. Without prejudice to the foregoing, we would be able to take action for resumption of power supply in the premises of M/s Mackeil Inspat & Forging Ltd. only after the amount due and payable is paid. Thanking you Yours sincerely Sd/- Chief Engineer (Commercial)" 11. The Corporate Debtor again wrote letter dated 07.12.2021 to the Appellant (email), which letter provides as follows: "Tue, Dec 7, 2021 at 2:20 PM To [email protected] CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dues (principal) amounting to Rs. 1,60,12,774/- prior to reconnection of power supply. Delay payment surcharge will be charged as per WBERC Regulation (Total principal dues of M/s Mackeil Ispat Forging Ltd. As on 07.12.2021 is Rs. 1,72,32,836/- out of which M/s Mackeil Ispat Forging Ltd. have made payment amounting to Rs. 12,20,062/- 2. Payment of security deposit amounting to Rs. 1,35,15,000/- (commensurate with the CD of 1.7 MVA) prior to reconnection of power supply. 3. Payment of reconnection charge Rs. 1200/-. Your sincerely Sd/- B. Mondal (07.12.2021) Dy. Chief Engineering (Commercial)" 13. On the request of the Respondent No.1 instalment was permitted by letter dated 05.01.2022, which letter is as follows: "No. Coml/DPS/2021-22/MIFL/2844 Date: 05.01.2022 To The Director Mackeil Ispat & Forging Ltd. 5A/1A, Lord Sinha Road, Kolkata - 700 071 Sub: Regarding resumption of power supply at factory premises of M/s Mackeil Ispat & Forging Ltd. [(fed from Durgapur S/s. Consumer No. 440291] Ref: (i) Your Letter no. MIFL/DVC/21-22/05 dtd. 13.12.2021 (received vide email dt. 13.12.2021) (ii) Bill vide no. MFN/202112/440281 dt. 03.01.2022. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal deems fit and proper." 15. Another Application which has been filed by the Respondent is I.A.1336/2022, in which Application following prayers were made: "a) Order restraining the Respondent from taking any coercive steps or actions against the Applicants, including but not limited to disconnection notice dated October 18, 2022; b) Order restraining the Respondent from taking any steps or further steps to recover any demand from the Applicants relating to the period prior to September 21, 2021. c) Order staying the effect of the wrongful demand made by the Respondent against the Applicants on June 1, 2022 to the extent of Rs. 14,37,503/-relating to the period prior to September 31, 2021, till the final adjudication of the Said Application; d) Order restraining the Respondent from raising further wrongful demands against the Applicants for any alleged dues or claims relating to the period prior to September 21,2021; e) Order quashing the wrongful demand of the Respondent dated June 1, 2022, December 7, 2021 and November 3, 2021 in so far as it relates to the pre- CIRP dues i.e. prior to September 21, 2021; f) Order quashing the disconnection notice of the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Counsel for the Appellant is that Adjudicating Authority has no jurisdiction to entertain the Application and the Adjudicating Authority had become quorum non-judice. We have already noticed above the approval of the Resolution Plan by the Adjudicating Authority dated 21.09.2021 and the claim which was filed by the Appellant in the CIRP. The correspondence entered between the Parties as noticed above was in reference to the approval of the Resolution Plan and payment of the amount which was due to the Appellant as per the Resolution Plan with a prayer to resumption of supply. 19. Section 60(5) which gives jurisdiction to Adjudicating Authority is as follows: "60. Adjudicating Authority for Corporate Persons.- (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim any refund of the amount. Learned Counsel for the Appellant has also referred to following part of the Power Purchase Agreement dated 03.01.2022: "AND WHEREAS the Consumer agreed to accept the liabilities of M/s. MACKEIL ISPAT & FORGING LTD. which might accrue due to the execution of this Agreement for supply of power unless otherwise specified in the terms and conditions of this Agreement." 25. In so far as the above clause of Power Purchase Agreement is concerned, the said clause can only be read to as accepting the liability of the Corporate Debtor, which might accrue due to execution of this Agreement for supply of power, unless otherwise as filed in the terms and conditions of the Agreement. The said clause clearly binds the Respondent to take liability which accrue due to the execution of the Agreement. The said clause cannot be read to mean that by Agreement, Respondent No.1 has taken liability which stood extinguished by approval of the Resolution Plan. The correspondence entered between the Parties as noticed above also clearly indicates that Respondent No.1 has offered to make the payment which was due as per the Plan. However, the Respondent itself has asked t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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