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TMI Blog2018 (4) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Insolvency Resolution Professional, the applicant, in the process of taking complete custody of the management and the assets of the Corporate Debtor, met the erstwhile management of the Corporate Debtor and was made aware of the issue being faced by one of the major production plant of the Corporate Debtor. 4. It is further alleged that the Damodar Valley Corporation (in short "DVC") is the sole distributor of power and electricity to the major production plant of the Corporate Debtor situated at Barjora, District Bankura, West Bengal, ("Barjora Plant"). On 17-01-2018, a day after the insolvency commencement date i.e. 16-01-2018, the power supply by DVC to the Barjora Plant was disconnected on account of outstanding dues prior to insolvency commencement date and hence, the entire operations of the Corporate Debtor at the Barjora Plant had come to a standstill. 5. In terms of the spirit of the Code and its expressed provisions, the Applicant, realising the gravity of the situation, requested DVC in writing by way of hand service as well as e-mail on 25-01-2018 to reconnect the power supply to the Barjora Plant of the Corporate Debtor and receiving no reply from the DVC on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctricity consumption from various consumers. The main functions of DVC under the DVC Act, 1948 is promotion of operation of scheme for generation, transmission and distribution of electrical energy. 14. An agreement was entered into between the Corporate Debtor and DVC for supply of electricity to the factory premises of the Corporate Debtor at Barjora on 20-01-2005 and consequently, a supplementary agreement was executed on 22-06-2007. 15. The Corporate Debtor was a defaulter in the payment of electricity bills from May, 2010 and DVC had repeatedly requested the Corporate Debtor to make payment of its outstanding dues. However, the Corporate Debtor neglected and/or failed to make any payment to clear the outstanding dues. 16. Finding no other alternative, DVC was forced to issue a disconnection notice on 01-01-2018 for non-payment of current dues amount to Rs. 8,38,20,190/-. The Corporate Debtor did not pay any heed to the notice and made no payment to DVC. DVC was forced to disconnect electricity supply to the factory premises of the Corporate Debtor on 17-01-2018. 17. It is further alleged by the DVC that the conduct of the Corporate Debtor shows that it has never intended f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o restart the plant operations and in order to preserve and secure the same as going concern. According to him, immediately after the moratorium was declared by this adjudicating authority under section 14 of the I & B Code, the said DVC disconnected the electricity supply. He further submits that despite his efforts to meet the Officials of DVC on 19-01-2018 and sending letters by way of E-mail dated 25-01-2018 and hand delivery of letter of request for reconnection of the electricity supply on 28.01.2018 and sending reminder letter to DVC on 29-01-2018, DVC not at all cared to restore the electricity. He also submits that he again met the Officials of DVC in person on 01-02-2018 and highlighted the application of Section 14 of the I & B Code in respect of the demand made by the DVC from the Corporate Debtor which is under the resolution process. 22. From the very averment in the objection submitted by the DVC it is understood that despite knowing the effect of moratorium under section 14 of the Code and application of sub-section (2) of section 14 of the Code in a case of this nature DVC expressed its intention not to restore electricity supply unless the outstanding dues are cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention also has no legal force because of section 238 of the Code to override other laws. It is good to read Section 238 of the Code. 28. Section 238 of the Code reads as under: Section 238: "The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 29. Section 238 of the Code no doubt, override other laws and hence the code takes precedence over the Electricity Act, 2003 and the West Bengal Electricity Regulatory Commission. Therefore, the above said objection is not at all sustainable under law. 30. Here, in the instant case, the Ld. Interim Resolution Professional is statutorily bound to see that the Corporate Debtor is a going concern. As per Section 20(1) of the Code, an Interim Resolution Professional shall make every endeavour to protect the operations of the Corporate Debtor as a going concern. The averment in the application shows that the Ld. IRP in the instant application tried his level best to see that electricity supply disconnected, is restored by the DVC. According to the Ld. Counsel for the IRP, upon disconn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the electricity supply charges from the date of restoration of electricity i.e. from 12-10-2017 and the Resolution Professional is required to pay the amount on behalf of the Corporate Debtor on month to month basis" and directed the Corporate Debtor in the said case, M/s., ANG Industries Limited/Insolvency Resolution Professional to pay the current electricity charges by way of instalments. 36. Here in the instant application the fact is different. Power supply was disconnected while moratorium in force and it was not restored and hence no arrears due as on the date of commencement of moratorium. The Ld. Counsel for the IRP submits that since the plant is stopped resumption of production can only start after 15 days and hence it cannot raise sufficient fund for payment of the current bill and a period of 105 days if allowed to pay the current bill to be issued after restoration of power it can pay without any default. According to the Ld. Counsel for DVC, not more than 15 days can be allowed in case direction is issued for restoration of power. The standard billing period is 32 days according to Ld. Counsel for the IRP. 37. The above said discussions leads to a conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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