2025 (6) TMI 1602 - HC - IBC

Liability of petitioner to pay the outstanding arrears of electricity dues of the earlier owner - Refund of electricity dues of the previous owner to the petitioner which had been deposited by it - provisions of the Electricity Act 2003 and related regulations override or are overridden by the IBC 16 in the context of recovery of operational dues during liquidation - HELD THAT - The issue as raised in this petition as to whether in view of IBC 16 the petitioner would be liable to pay the outstanding arrears of electricity dues of the earlier owner namely M/s. Dhanlakshmi Solvex Pvt. Ltd. has already been answered in Paschimanchal Vidyut Vitran Nigam Ltd. v. Rarman Ispat Private Limited and another 2023 (7) TMI 831 - SUPREME COURT in which it has been held that The repeated reference of lowering of priority of debts to the government on account of statutory tax or other dues payable to the Central Government or the State Government or amounts payable into the Consolidated Fund on account of either government in the various reports which preceded the enactment of IBC as well as its Preamble means that these dues are distinct and have to be treated as separate from those owed to secured creditors. In view of the authoritative pronouncement of the Apex Court as aforesaid the respondents cannot insist on payment of arrears which have to be paid in terms of the waterfall mechanism for grant of an electricity connection. The remedy of respondents is under Section 53 of the IBC 16. Its dues have to be paid in the manner prescribed in the Resolution Plan as approved by the adjudicating authority. The demand made by it from the petitioner for payment of outstanding dues of the previous owner was hence wholly unjustified and the amount paid by the petitioner is liable to be refunded to it. Though it is further contended that a writ petition for claim of recovery is not maintainable but from the facts of the case it is observed that the amount in question is not disputed and it is only the entitlement of the petitioner for recovering the same from the respondents which is disputed. This dispute is based purely upon the interpretation of the provisions of law which upon interpretation as aforesaid have been found in favour of the petitioner. This contention of the respondents also does not hold ground. Conclusion - i) The petitioner as purchaser of the corporate debtor s assets in liquidation is not liable to pay the previous owner s outstanding electricity dues directly to the electricity distribution company. ii) The Electricity Act 2003 provisions do not override the IBC 16 in this context due to Section 238 s overriding effect. The respondents are directed to refund the amount of Rs. 55, 29, 000/- to the petitioner and release the bank guarantee of remaining 50% amount it along with interest at the rate of 6% per annum with effect from the date of payment by petitioner i.e.27.10.2021 upto the date of payment to it. In case payment is not made within the aforesaid period of two months this amount shall carry interest at the rate of 12% - petition allowed.

Summary

The core legal questions considered in this judgment are:

1. Whether the petitioner, as the successful purchaser of a corporate debtor's industrial unit in liquidation under the Insolvency and Bankruptcy Code, 2016 (IBC 16), is liable to pay the outstanding electricity dues of the previous owner to the electricity distribution company before obtaining a new electricity connection.

2. Whether the electricity distribution company (respondents) can demand payment of arrears of electricity dues from the petitioner as a condition precedent to providing a fresh electricity connection, notwithstanding the liquidation and sale of the corporate debtor's assets under IBC 16.

3. Whether the provisions of the Electricity Act, 2003, and related regulations override or are overridden by the IBC 16 in the context of recovery of operational dues during liquidation.

4. Whether the petitioner's remedy for recovery of the amount paid under protest lies under writ jurisdiction or requires a civil suit, considering the nature of dispute and factual issues involved.

Issue-wise Detailed Analysis:

Issue 1 & 2: Liability of the purchaser of a liquidated company's assets for previous owner's electricity dues and entitlement of electricity connection

The legal framework revolves primarily around the Insolvency and Bankruptcy Code, 2016, especially Sections 33 (liquidation), 34 (appointment of liquidator), 36 (sale of liquidation estate), 53 (waterfall mechanism for distribution of proceeds), and 238 (overriding effect of IBC). The Electricity Act, 2003, and its provisions on recovery of dues and grant of electricity connections also form part of the competing legal framework.

The petitioner purchased the industrial unit through a liquidation sale conducted by the liquidator under IBC 16 after the National Company Law Tribunal ordered liquidation of the corporate debtor. The petitioner paid the entire sale consideration and obtained possession and a sale certificate. Subsequently, the petitioner applied for a new high-tension electricity connection but was denied on the ground of outstanding electricity dues of the previous owner. The petitioner paid a part of the dues under protest to obtain the connection, reserving the right to claim refund.

The Court referred extensively to the Supreme Court's authoritative pronouncements, particularly in Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd., which clarified the interplay between operational creditors' claims and the IBC liquidation process. The judgment emphasized that operational creditors, including electricity distribution companies, are entitled to recover their dues from the liquidation estate through the liquidator and in accordance with the waterfall mechanism under Section 53 of IBC.

Section 53 prescribes a strict order of priority for distribution of proceeds from the sale of liquidation assets, with operational creditors ranked accordingly. The electricity dues of the corporate debtor constitute an operational debt and must be claimed and paid through the liquidation process. The electricity distribution company's right to recover dues is thus limited to the liquidation estate and cannot be enforced directly against the purchaser of the assets post-liquidation.

The Court also examined the question of creation of a statutory charge over the assets for electricity dues, as contemplated under the Electricity Act and supply agreements. It relied on the Supreme Court's ruling in K.C. Ninan v. Kerala SEB, which held that electricity arrears do not automatically become a charge on the premises and that liability of a transferee depends on statutory provisions or regulations authorizing recovery from subsequent purchasers. However, even if a charge exists, the IBC's overriding provisions prevail, and dues must be recovered through the liquidation process.

The Court further distinguished the respondents' reliance on pre-IBC judgments which upheld the electricity company's right to recover arrears from subsequent purchasers. It held that those decisions are no longer applicable post-IBC enactment due to Section 238, which provides that IBC provisions override any inconsistent laws, including the Electricity Act, 2003.

The Court also cited the ABG Shipyard Liquidator case, where the Supreme Court held that once moratorium under IBC is in place, authorities like Customs cannot initiate recovery outside the IBC process, reinforcing the principle that recovery of dues must be through the IBC liquidation mechanism.

In sum, the Court concluded that the respondents could not insist on payment of electricity arrears directly from the petitioner as a condition for granting a new electricity connection. The dues are to be recovered through the liquidator under the waterfall mechanism prescribed by IBC 16. The petitioner's payment under protest is therefore liable to be refunded.

Issue 3: Overriding effect of IBC 16 over Electricity Act, 2003

The Court emphasized Section 238 of IBC, which states that IBC provisions prevail notwithstanding anything inconsistent in other laws. It rejected the respondents' argument that statutory provisions under the Electricity Act, such as Sections 49 and 50, empower them to recover arrears from the petitioner directly. The Court held that the Electricity Act's provisions cannot override the IBC's comprehensive insolvency and liquidation framework.

The Court also clarified that the Apex Court's decision in Southern Power Distribution Company of Andhra Pradesh Ltd. confirmed that IBC's overriding effect applies even when other statutes contain non obstante clauses. This principle was reinforced by reference to other Supreme Court decisions, including those relating to Customs and Tea Acts, which held that IBC overrides sector-specific laws in insolvency matters.

Issue 4: Maintainability of writ petition and alternate remedies

The respondents contended that the petitioner had an alternate efficacious remedy and that the writ petition was not maintainable, suggesting that a civil suit was the appropriate forum for recovery claims involving factual disputes.

The Court rejected this contention, noting that the dispute was purely legal, relating to the interpretation of IBC provisions vis-`a-vis the Electricity Act. The amount paid by the petitioner was undisputed; only entitlement to refund was questioned. Since the legal position was settled by Supreme Court precedent, the Court found no justification to require the petitioner to pursue alternate remedies. The writ petition was therefore maintainable.

Significant Holdings:

"The provisions of IBC 2016 have overriding effect over other laws hence, notwithstanding anything inconsistent contained in any other law, including the Electricity Act, 2003, the provisions of the Code shall prevail."

"The respondents cannot insist on payment of arrears which have to be paid in terms of the waterfall mechanism for grant of an electricity connection. The remedy of respondents is under Section 53 of the IBC 16. Its dues have to be paid in the manner prescribed in the Resolution Plan as approved by the adjudicating authority."

"Electricity arrears do not automatically become a charge over the premises. Such an action is permissible only where the statutory conditions of supply authorise the recovery of outstanding electricity dues from a subsequent purchaser claiming fresh connection of electricity, or if there is an express provision of law providing for creation of a statutory charge upon the transferee."

"Section 238 IBC overrides the provisions of the Electricity Act, 2003 despite the latter containing two specific provisions which open with non obstante clauses (i.e. Sections 173 and 174)."

"The demand made by the respondents from the petitioner for payment of outstanding dues of the previous owner was hence wholly unjustified and the amount paid by the petitioner is liable to be refunded to it."

Final determinations:

- The petitioner, as purchaser of the corporate debtor's assets in liquidation, is not liable to pay the previous owner's outstanding electricity dues directly to the electricity distribution company.

- The electricity distribution company's claim for arrears must be made through the liquidator and paid in accordance with the waterfall mechanism under Section 53 of IBC 16.

- The Electricity Act, 2003 provisions do not override the IBC 16 in this context due to Section 238's overriding effect.

- The petitioner's writ petition for refund of amounts paid under protest is maintainable, and the respondents are directed to refund the amount with interest.