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2019 (11) TMI 400

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..... khand Power Corporation Ltd. v. M/s. ANG Industries Ltd. [2018 (1) TMI 1445 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein this Appellate Tribunal taking into consideration the fact that the order of ‘Moratorium’ had been passed held that ‘Uttarakhand Power Corporation Limited’ cannot recover any amount as was due for the earlier period prior to the date of initiation of ‘Corporate Insolvency Resolution Process’, though it was entitled to submit the claim before the ‘Resolution Professional’. This Appellate Tribunal further observed that the amount payable towards the current charges during the ‘Corporate Insolvency Resolution Process’ was payable to the ‘Uttarakhand Power Corporation Limited’. Thus, it is not open to the Electricity Board to disconnect the electric supply of the ‘Corporate Debtor’ during the ‘Corporate Insolvency Resolution Process’, the ‘Resolution Professional’ should not have paid any dues of the earlier period for restoration of electricity. The ‘Resolution Professional’ should have brought the fact to the notice of the Adjudic .....

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..... w Account without prejudice to the rights and contentions of either side, likewise directed M/s. Kerala State Electricity Board to forthwith restore power. 5. Pursuant to the said order, the Resolution Professional deposited the amount of ₹ 3.25 Crores in the Escrow Account. The Resolution Professional informed that the entire ₹ 3.25 Crores need not be paid because the payments made by him (on behalf of the Corporate Debtor ) during Corporate Insolvency Resolution Process period towards the dues payable for the period before admission shall be adjusted towards payments payable during the period of Corporate Insolvency Resolution Process . Since M/s. Kerala State Electricity Board being the Operational Creditor , the payments inadvertently paid for the earlier period should be treated as claims required to be paid to M/s. Kerala State Electricity Board . 6. The Resolution Professional submitted that this issue has already been given treatment in the Resolution Plan by adjusting arrear payments made towards preadmission bills against the bills raised during Corporate Insolvency Resolution Process . 7. The Adjudicating Authority by impugned order dated 25th February, 2019 .....

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..... the Corporate Debtors as going concern and to avoid the electricity disconnection. 11. It was submitted that the 1st Respondent- Mr. R. Venkatakrishnan, vide publication on 24th September, 2017 of public announcement in Form-A in terms of Section 15 of the I&B Code , called upon all the creditors of the Corporate Debtors to file their respective claims on or before 08th October, 2017. However, despite due publication as prescribed under the statute, 2nd Respondent, providing electricity services to the Corporate Debtors , and being Operational Creditor of the Corporate Debtor did not come forward to file its claim as mandated for all the creditors of the Corporate Debtor . The 2nd Respondent- Kerala State Electricity Board disconnected electricity to the Corporate Debtors in June, 2018 during the Corporate Insolvency Resolution Process period and continuation of Moratorium period and it was the stage that the Resolution Professional filed application for restoration of the electricity to the Corporate Debtor . The Adjudicating Authority, vide order dated 16th July, 2018, allowed the applications and directed Kerala State Electricity Board to restore the electricity. The Adjudic .....

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..... tted its claims in accordance with the provisions of the I&B Code applicable to the Operational Creditors . By not doing so, the Resolution Professional has acted arbitrarily by lowering the pool of funds available for meeting Corporate Insolvency Resolution Process costs. 17. Similar plea has been taken by Mr. R. Venkatkrishnan, Resolution Professional in his appeal. 18. According to 2nd Respondent- Kerala State Electricity Board , post Commencement of Insolvency Resolution Process since 15th September, 2017, the electricity dues were being paid as cost of insolvency resolution process, albeit erratically. The electricity supply was disconnected for the dues pertaining to Resolution Period and was restored in compliance with the order dated 26th October, 2018 passed by the Adjudicating Authority, whereby the amount payable was directed to be kept in an escrow account as security. On scrutiny, the story of inadvertent payment of past dues concocted after Resolution Plan and/or figures given in application are imaginary. None of this and other submissions of Appellants are borne out by the Resolution Plan itself and/or the actual dues/payments from time to time. 19. It was furth .....

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..... dustries Ltd.─ Company Appeal (AT) (Insol.) No. 298 of 2017 wherein this Appellate Tribunal taking into consideration the fact that the order of Moratorium had been passed held that Uttarakhand Power Corporation Limited cannot recover any amount as was due for the earlier period prior to the date of initiation of Corporate Insolvency Resolution Process , though it was entitled to submit the claim before the Resolution Professional . This Appellate Tribunal further observed that the amount payable towards the current charges during the Corporate Insolvency Resolution Process was payable to the Uttarakhand Power Corporation Limited . 27. In view of the aforesaid position of law, while we hold that it is not open to the Electricity Board to disconnect the electric supply of the Corporate Debtor during the Corporate Insolvency Resolution Process , the Resolution Professional should not have paid any dues of the earlier period for restoration of electricity. The Resolution Professional should have brought the fact to the notice of the Adjudicating Authority, who should have ordered for restoration of electricity with clear direction to pay the dues of the current charges of the Co .....

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