9911796707
TMI Blog2024 (6) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 2 namely; Meghalaya Power Distribution Corporation Ltd. had vide letter dated 12.06.2023 sought recovery of electricity dues from the petitioner for the periods prior to the takeover under the Insolvency Code, and also from the affiliates of the petitioner No. 1 (i.e. the respondents No. 3 & 4) by threatening to disconnect the existing electricity connections for the mobile towers, and further refused to provide new electricity connections to the petitioner and its affiliates. Aggrieved thereby, the writ petitioners by way of the instant writ petition have therefore put a challenge to the impugned letter/Demand Notice dated 12.06.2023, issued by the respondent No. 2 to the extent that it pertains to dues of the petitioner No. 1, prior to 22.12.2022. 3. Mr. V.V.V. Sastry, learned counsel for the petitioner has submitted that the petitioner is highly aggrieved, inasmuch as, the respondents Nos. 1 & 2, are seeking to recover and realize electricity dues from the writ petitioners for the periods much prior to 22.12.2022, i.e. the effective date of takeover. Learned counsel submits that the legal issues raised in the instant case are no longer res integra, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49) ii) Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar reported in (2019) SCC Online SC 1478 iii) Ruchi Soya Industries vs. Union of India reported in (2022) 6 SCC 343 (Paras 4-6, 10, 11) iv) Dimension Steel and Alloys Ltd. vs. Damodar Valley Corporation reported in (2022) SCC Online Cal 995 (Paras 1, 7, 30, 32, 33) v) West Bengal State Electricity Distribution Company vs. Sri Vasavi Industries reported in (2022) SCC OnLine Cal 1918 (Para 2, 6-9, 17 and 25) vi) Paschimanchal Vidyut Vitran Nigam Limited vs. Raman Ispat Pvt. Ltd passed in Civil Appeal No. 7976 of 2019 vii) Southern Power Distribution Company of Andhra Pradesh Limited vs. Gavi Siddeswara Steels (India) Pvt. Ltd. & Anr. arising out of Diary No. 9229 of 2013. viii) Tata Power Western Odisha Distribution Limited (TPWODL) & Anr. vs. Jagannath Sponge Private Limited passed in Civil Appeal No. 5556 of 2023 6. The learned counsel in closing his arguments, submits that the writ petitioners are seeking a writ of mandamus, in view of the arbitrary actions on the part of the respondents in not providing electricity connections, which is interfering with their rights to carry on trade and busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory obligations from the petitioners. This he submits is because the NCLT while approving the resolution plan vide order dated 03.12.2020, had observed that the approved resolution plan in no way would amount to waiver of statutory dues. On his third submission, it has been contended that electricity dues are statutory in nature and subsequent owners are liable to pay the same. Reference on this point has been made to the decision of the Supreme Court rendered in the case of Telangana State Southern Power Distribution Company Ltd. & Anr. vs. Srigdhaa Beverages reported in (2020) 6 SCC 404, wherein it has been held that electricity dues where they are statutory in character under the Electricity Act cannot be waived in view of the provision of Section 56 of the Act itself. It is submitted that electricity dues being statutory dues, the subsequent purchasers are therefore liable for the same. The learned Advocate General on this point has also referred to the case of K.C. Ninan vs. Kerala SEB, 2023 SCC OnLine SC 663 in support of this argument. 10. It is then contended that the writ petition is not maintainable for implementation of the resolution plan, as the petitioners have alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner No. 1 was admitted to insolvency, a resolution plan which had been submitted was approved by the National Company Law Tribunal and by the Supreme Court, and Reliance Projects and Property Management Solutions Ltd. (RPPMSL) took over the petitioner No. 1 on 22.12.2022. Section 31 (1) of the Insolvency and Bankruptcy Code, 2016 (I&B Code) which is relevant in this respect, provides that an approved resolution plan is binding on all creditors. The same is reproduced hereinbelow:- "31: Approval of resolution plan. - (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, [including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed,] guarantors and other stakeholders involved in the resolution plan: Provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refer to Section 238 of the I&B Code, which provides that this Code shall override other laws. The same is reproduced hereinbelow:- "238. Provisions of this Code to override other laws.- 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." 16. This provision is crucial, as a ground had been set up by the respondent No. 2 that electricity dues being statutory in character under the Electricity Act 2003, the same cannot be waived in view of Section 56 of the said Act. However, though electricity dues admittedly, and as held by the Supreme Court in the case Telangana State Southern Power Distribution Company Ltd. & Anr. vs. Srigdhaa Beverages (supra) are statutory in character and cannot be waived, the interplay of Sections 31 and 238 of the I&B Code and the circumstances surrounding the case, have to be given due consideration. This observation has been made in view of the fact that the respondent No. 2, did not participate in the resolution process and as such, as per Section 31 is bound by the same. The dues claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving been made against the Corporate Debtor, and further Section 238 having an overriding effect on all other laws, the stand of the respondent No. 1 that the petitioners are liable to pay in terms of Section 56 of the Electricity Act is therefore, unsustainable. 17. As held in the case of Ghanshyam Mishra vs. Edelweiss Asset Reconstruction Co. Ltd (supra), the legislative intent of making the resolution plan binding after approval, was that the successful resolution applicant, should start with a fresh slate on the basis of the said approved resolution plan, and that it not be faced with surprise claims. Para 102.1, which is very relevant is quoted hereinbelow:- "102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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