TMI Blog2020 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility and to take action in accordance with law against the persons who are held responsible in the matter. The exercise of taking appropriate steps in accordance with law and recovering the outstanding dues form the promoters be concluded within a period of six months from the date of receipt of certified copy of this order. The exercise of holding an inquiry, as directed by this Court, be completed within a period of three months from the date of receipt of certified copy of this order. The respondent is restrained from demanding / recovering the dues of Dhar Cement Limited (a Company in liquidation) from the present petitioner - Petition allowed. - Writ Petition No.10659/2020 - - - Dated:- 2-11-2020 - HON'BLE SHRI JUSTICE S.C. SHARMA Shri S.C. Bagadia, learned senior counsel along with Shri Rohit Saboo, learned counsel for the petitioner. Shri Prasanna Prasad, learned counsel for the respondent. O R D E R Per: S.C. Sharma, J: The petitioner before this Court, a Private Limited Company registered under the provisions of the Companies Act, 1956, has filed this present petition being aggrieved by the letter dated 10.07.2020 (Annexure-P/12) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation), however, the respondent, on 20.05.2020, has refused to waive the aforesaid amount. The petitioner has deposited all the amount demanded by the respondent and on 05.06.2020, the respondent directed the petitioner / Company to complete requisite formalities in respect of High Tension Agreement. 06. The officer of the petitioner / Company visited the office of the sole respondent and the petitioner / Company was directed to deposit a sum of ₹ 1,98,62,418/- in respect of old outstanding dues of Dhar Cement Limited. On 07.07.2020, the petitioner / Company informed the Official Liquidator about the demand made by the respondent and the Official Liquidator has informed the petitioner / Company that the petitioner / Company is not required to pay the outstanding dues of Dhar Cement Limited and the dues will be adjudicated and settled as per the provisions of Section 529, 529-A and 530 of the Companies Act, 1956. 07. The respondent again issued a letter on 10.07.2020 directing the petitioner / Company to pay a sum of ₹ 1,98,62,418/- and being aggrieved by the demand raised in the matter, the present writ petition has been filed. The contention of the petitioner / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricity Board reported in (1995) 2 SCC 648, Ahmedabad Electricity Company Limited v/s Gujrat Inns Private Limited reported in (2004) 3 SCC 587, Pashchimanchal Vidyut Vitran Nigam Limited Others v/s DVS Steels and Alloys Private Limited Others reported in (2009) 1 SCC 210, Dakshin Haryana Bijli Vitran Nigam Limited v/s Paramount Polymers (P) Limited reported in (2006) 13 SCC 101, Dakshin Haryana Bijli Vitran Nigam Limited Another v/s Excel Buildcon Private Limited reported in (2008) 10 SCC 720, Haryana State Electricity Board v/s Hanuman Rice Mills, Dhanauri Others reported in (2010) 9 SCC 145, Hyderabad Vanaspati Limited v/s Andhra Pradesh State Electricity Board Others reported in (1998) 4 SCC 470, Suraj K.R. v/s Secretary, Kerela State Electricity Board Another reported in AIR 2006 Kerela 194, Special Officer (Commerce), North Eastern Electricity Supply Company ORRISSA (NESCO) Another v/s Raghunath Paper Mills Private Limited Another reported in (2012) 13 SCC 479 and Telangana State Southern Power Distribution Company Limited Another v/s M/s Srigdhaa Beverages reported in 2020 SCC OnLine SC 478. 12. The stand of the respondent is that the present petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1956 and engaged in the business of manufacturing cement. Dhar Cement Limited, again a Company registered under the provisions of the Companies Act, 1956, was subjected to winding up proceeding and a company petition was filed in the year 2002, the same was registered as Company Petition No.17/2002 and the respondent before this Court has preferred an application i.e., I.A. No.6303/2013, for recovery of outstanding dues against Dhar Cement Limited. The learned Company Judge has passed an order on 31.01.2014 in respect of the claim of the respondent and paragraphs 27 and 30 of the aforesaid order read as under:- 27. So far as the I.A. No.6303/2013 is concerned, it is an I.A. filed by the Electricity Board claiming arrears of electricity charges from the Company in liquidation. Counsel for the applicant-promoter/contributory has fairly stated before this Court that these charges would be paid by the applicant in accordance with law, therefore, I.A. No.6303/2013 is disposed of leaving it open to the applicant-Electricity Board to recover the arrears of electricity charges from the applicant- Company in accordance with law. 30. So far as Company Petition No.17/2002 is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge in respect of arrears of electricity charges and it was stated that the same shall be paid by the promoters of Dhar Cement Limited and in light of the statement made by the promoters, I.A. No.6303/2013 was disposed of leaving it open to the respondent / Electricity Board to recover the arrears of electricity from the applicant / Company in accordance with law i.e. from Dhar Cement Limited. 17. This Court really fails to understand as to how and as to why the respondent (Electricity Board) has not objected to the statement made by the promoter (Dhar Cement Limited). The respondent before this Court was certainly entitled to agitate the matter to claim its outstanding dues before the learned Company Judge. In case, the aforesaid order was passed, this Court really fails to understand as to why a company appeal was not preferred and as to why the respondent has abandoned their claim before the learned Company Judge. 18. Pursuant to the orders passed by this Court for conducting an e-auction, on 08.08.2017, steps were taken for auctioning the assets of the property and an advertisement was issued by the Official Liquidator. 19. In Company Petition No.17/2002, OLR Nos.67/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.108 Ghurshal 365/1 367/1 368/1 72/1 1.500 1.500 Attersuma 75/1 36/1 1.414 1.714 Karnodia 37/1 18.463 18.463 Shri Panwar, counsel for the workers Union fairly submits that after disclosure of details of the properties which have been put to auction,the grievance of the workers no longer survives. Having regard to the aforesaid and considering the fact that nobody has come forward to object to the sale of the assets of Lot No.3 to M/s Satguru Cement Pvt. Ltd. and also taking note of the circumstances which are disclosed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 27.07.2017 will be paid by the petitioner, however, the respondent cannot recover the dues from the petitioner, which are electricity dues as they are dues prior to 27.07.2017 in light of the sale deed executed in favour of the petitioner and in light of the fact that the respondent has foregone the claim before the Company Judge on an assurance given by promoter of the Company (Dhar Cement Limited). 22. The stand of the respondent is that the petitioner is having an alternative remedy, however, the forum, where the alternative remedy is available, has not been mentioned in the reply. 23. In the considered opinion of this Court, even if there is an alternative remedy as stated in the reply, the petitioner cannot be thrown out on the ground of availability of alternative remedy in the peculiar facts and circumstances of the case. 24. The respondent has also placed reliance upon the amendment made by M.P. State Electricity Regulatory Commission dated 25.11.2019 in the Electricity Supply Code and Clause 4.12 reads as under:- 4.12. If the consumer, in respect of an earlier agreement executed in his name or in the name of a firm or company with which he was associated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stage, and therefore, the aforesaid regulation, in the peculiar facts and circumstances of the case, will not come in way of the present petitioner. 25. The respondent has also placed reliance upon a judgment delivered in the case of Isha Marbles (supra). Paragraph 63 of the aforesaid judgment reads as under:- 63. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, behighly protects public property and behoves everyone to respect public property. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lacs and lacs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them. 11. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., dues prior to 2017 and undisputedly, the present case, the dues in question are prior to 2017; (b) The property was sold on account of an order passed by the learned Company Judge in Company Petition No.17/2002 and there was an application preferred by the respondent claiming its dues. The respondent / Company was so much influenced by the statement made by the promoter of Dhar Cement Limited (a Company in liquidation) that they will be paying electricity dues, that they did not agitate their claim further when their Interlocutory Application was disposed of. They were satisfied with the fact that the promoter was going to pay their dues. 29. Shri Prasanna Prasad has placed reliance upon a judgment delivered in the case of Telangana State Southern Power distribution Company Limited Another v/s Srigdha Beverages reported in 2020 SCC OnLine SC 478, which is a latest judgment on the subject deliveredby the Hon'ble Supreme Court. 30. In the aforesaid case, Srigdhaa Beverages, an auction purchaser of the Unit, was aggrieved by the liability fastened upon them on account of previous electricity dues of the last owner and the Hon'ble Supreme Court in parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cases in question. 10. We may also notice that there have been subsequent judicial pronouncements dealing with this aspect of electricity dues. A three Judge Bench of this Court has held that the dues under the terms and conditions of supply partake the character of statutory dues ( Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board Ors. (1998) 4 SCC 470) . The mere fact that agreements were entered into with every consumer only served the purpose of bringing to the notice of the consumer the terms and conditions of supply, but did not make the dues purely contractual in character. 11. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd. v. Paramount Polymers (P) Ltd., (2006) 13 SCC 101 where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall (2 Judges Bench) pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized: That electricity dues, where they are statutory in character under the Electricity Act and as per the terms conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS , there can be no doubt 10 (supra) that the liability to pay electricity dues exists on the respondent (purchaser). 16.3 The debate over connection or reconnection would not exist in cases like the present one wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, is witnessing objectionable stand of the respondent. In case, an application was preferred before the learned Company Judge for claiming electricity charges, the same should have been defended and claim should not have been relinquished only on account of an assurance given by the promoter. It requires a fact finding inquiry as to why nothing was done after an order was passed on 31.01.2014 when the application of the respondent / Company was disposed of on the basis of assurance given by the promoter. The Managing Director of the Company shall conduct a fact finding inquiry and shall also be free to fix responsibility and to take action in accordance with law against the persons who are held responsible in the matter. It is needless to mention that the respondent shall also take appropriate steps in accordance with law for recovering the dues form the promoters of Dhar Cement Limited / from the assets held by the promoter of Dhar Cement Limited keeping in view the order passed by the learned Company Judge in Company Petition No.17/2002 dated 31.01.2014 as the promoters have made a statement before the learned Company Judge that they are paying the entire outstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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