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TMI Blog2023 (1) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... f the interest of Financial Creditors and a provision is made for payment of CIRP costs which shall be paid as first priority. It is stated that no payment is made to Operational Creditor, as operational creditor would not get any amount in the event of liquidation as per provision of 30 (2) (b) of IBC. Even otherwise, the Operational Creditor / APCPDCL is a Government undertaking. By virtue of amendment to Section 31 (1) Of the Code, the Resolution Plan is binding on the State Government. Therefore, even if no amount is allotted to Operational Creditor in the Resolution Plan, but by virtue of amendment, the plan is binding on the undertaking of State Government. Hence, Resolution Plan can be approved even if no allotment is made to the Operational Creditor. 21.Applicant submits that Corporate Debtor has already commissioned the industry by taking necessary approvals from the various departments. However for any future clearance, the same would be taken accordingly. 22. The Resolution Plan has been approved by the CoC in accordance with the provisions of the Code and the CIRP Regulations made thereunder. The Resolution Plan has been approved by 100% of voting share of financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an to the Board to be recorded on its database. 4. The Resolution Applicant shall obtain necessary approval required under any law for the time being in force within a period of one year from the date of approval of the Resolution Plan or within such period as provided for in such law." 3. According to the Learned Counsel for the 'Appellant', the 'Appellant' is the 'Distribution Licencee', constituted under the 'Companies Act' and wholly owned by the Government of Andhra Pradesh. Further the 'Appellant' was procuring 'Power' from the State and the Central generating stations apart form procuring power from private generating stations and power exchanges, to supply such power to all end consumers of the State of Andhra Pradesh within the 'jurisdiction', having control over Ananthapur, Chittoor, Kadapa, Kurnool and Nellore Districts. 4. It is represented on behalf of the 'Appellant' that the 'Adjudicating Authority', (National Company Law Tribunal, Hyderabad Bench-I) in IA No.1079 of 2019 in CP (IB) No.673/07/HDB/2018 (filed by the 'Applicant' / 'Resolution Professional') has not examined the Clause 8.4 of the 'general terms and conditions' of supply followed by the 'Petitioner', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground raised was that Appellant was entitled to claim unpaid dues as per West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2013. In the above judgment in paragraphs 14 to 17 following has been laid down: "14. There is no question of the claim of Appellant still existing pertaining to pre-CIRP period, which claim was filed before the Resolution Professional, after the approval of the Resolution Plan. 15. The submission, which has been much pressed by learned Senior Counsel for the Appellant that there has been contravention of Statutory Regulations, as the Plan breaches the provision of Section 30, sub-section (2) (e). Section 30, subsection (2) (e) provides: "30. Submission of resolution plan. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan - (e) does not contravene any of the provisions of the law for the time being in force." 16. We may at this stage also refer to the Statutory Regulations 4.6.1 and 4.6.4, which are to the following effect: "4.6.1 If the power supply to any consumer remains disconnected continuously for a period of one hundred and eighty day's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh Limited. Vs. Maithan Alloys Limited & Ors., decided on 26.05.2022", where this Tribunal had occasion to consider the judgment of Hon'ble Supreme Court in "Telangana State Southern Power Distribution Company Ltd. & Anr. vs. M/s Srigdhaa Beverages" (supra). Referring to the judgment of Hon'ble Supreme Court following was stated in Paragraph 17: "17. It is to be noted that the Hon'ble Supreme Court in the above case was considering the Auction Sale under SARFAESI Act, 2002. No provision of IBC were under consideration of the Hon'ble Supreme Court. In the IBC proceedings, the electricity supplier is also an Operational Creditor who files claim for its operational debt as well as the charges during the CIRP period. IBC deals with the claims and require for payment of the claim of the electricity service provider under Section 53 of the Code in a liquidation proceeding. Regulation formed under Electricity Act, 2003 fastening liability on the Successful Auction Purchaser in the Liquidation Proceedings will be in conflict with the provision of the IBC. IBC having been given overriding effect under Section 238, any contrary provision in any other statute under Electricity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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