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2020 (11) TMI 127
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.... that Dhar Cement Limited (a Company in liquidation) was facing winding up proceeding and an order was passed on 27.11.2017 in Company Petition No.17/2002 by this Court for sale of assets of the Company in liquidation. The petitioner / Company has purchased the assets of the Company in liquidation i.e., Dhar Cement Limited and took possession of the property. The petitioner / Company, on 18.07.2019, applied for High Tension Connection and also applied for Temporary High Tension Connection for a period of 16 months by submitting another application dated 19.09.2020. 03. The temporary connection was granted on 26.09.2019 to the petitioner / Company and on 01.11.2019, the Official Liquidator executed a sale deed in respect of assets of the Company in liquidation in favour of the petitioner / Company. The petitioner's contention is that as per Clause - 11 of the sale deed, the petitioner / Company was required to pay all the dues relating to Government / Semi Government / local authorities / other statutory bodies, if arises from the date of sale of confirmation i.e., w.e.f. 25.07.2017. 04. On 25.02.2020, the respondent issued a Provisional Sanction Letter in response to the ....
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....any in liquidation in pursuance to the order passed by this Court and the sale deed has been executed by the Official Liquidator, and therefore, the petitioner / Company is not required to pay outstanding dues of Dhar Cement Limited (a Company in liquidation) and the amount has to be adjudicated by the Official Liquidator. The petitioner's contention is that by no stretch of imagination, the dues can be recovered from the petitioner / Company. 09. The petitioner has prayed for the following reliefs:- (i) That, a writ, direction or order in the nature of mandamus or certiorari or as deemed fit be issued quashing the impugned letter dated 10.07.2020 (Annexure-P/12) in the entirety; (ii) That, a writ, direction or order in the nature of mandamus or certiorari or as deemed fit be issued directing the respondent to refrain from demanding the alleged dues of Dhar Cement Ltd (in liquidation); (iii) That, a writ, direction or order in the nature of mandamus or certiorari or as deemed fit be issued directing the respondent to issue electricity connection; (iv) Any other relief which this Hon'ble Court deems fit be issued in favour of the petiti....
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....pany has preferred an application i.e., I.A. No.6303/2013 and during the course of the hearing before this Court, the promoters of the company have expressed their desire to make the payment, and therefore, the Interlocutory Application preferred by the Electricity Distribution Company was disposed of with a liberty to the Electricity Company to recover the dues in accordance with law, and therefore, the dues are being recovered in accordance with law. The contention of the respondent is that they are rightly recovering the dues in the matter. 14. A rejoinder has also been filed by the petitioner / Company and it has been stated that pursuant to the orders passed by the learned Company Judge in respect of Company in liquidation, an Official Liquidator was appointed and the Official Liquidator took possession of the assets of the Company on 24.09.2003. The Official Liquidator has conducted an e-auction and the petitioner was a successful bidder. It has been stated that from a bare perusal of the auction, notice and sale deed executed in favour of the petitioner / Company, it is evident that the petitioner / Company is not liable to pay dues of whatsoever nature up to the date of ....
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....ography of the handing over and taking over possession of the assets will be undertaken by O.L. iv. The applicant-promoter/contributory and the other concerning directors of the Company shall remain prohibited from transferring, alienating or parting with possession of any of the assets of the Company without the leave of the Court. This will not preclude the applicant- promoter to approach the financial institutions for financial assistance and seek creation of charge on the assets of the Company-in-Liquidation by the financial institutions. v. The applicant-promoter will submit six monthly report to the O.L. till the time the Company becomes fully operational. vi. The O.L. shall immediately make available the records of the company and handover the same to the authorized representatives of the Company. Vii. All the expenses incurred by the O.L. till the handing over of the assets of the Company-in- Liquidation including the expenses for handing over, will be borne by the applicant-promoter. Viii. Company Petition No.17/2002 will remain pending only for the limited purpose of permitting any of the ex worker of the Company to file an app....
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....of sale of the assets in Lot No.3. It has been pointed out by the learned counsel for the O.L. that in pursuance to the directions issued by this court on 8.8.2017 the steps were taken for auctioning the assets of Lot No.3 and due publication was made. Thereafter 2 offers were received. The offer of Satguru Cement Pvt. Ltd. was the highest offer. This court on 30.10.2017 had permitted all the parties to obtain copy of this OLR and file their objection/reply. On 13.11.2017, Shri Panwar learned counsel for the Workers Union had raised a submission that in the auction notice Annx.A to the OLR the particulars of the properties which were put to auction were not fully mentioned. Consequently the O.L. has filed OLR No.72/2017 placing on record the auction notice Annx.'A' and disclosing that in note (vii) of the said auction notice, the prospective buyers were givmmen the opportunity to visit the office of O.L. and obtain the details of the properties in Lot No.3. He has submitted that since a number of piece of land of different Khasra numbers were involved therefore same were not mentioned in the auction notice but sufficient particulars were given. He has also....
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....raw I.A.No.2608/2016. Prayer is allowed. I.A.No.2608/2016 is accordingly dismissed as withdrawn. List on 22.1.2018." 20. A sale deed was executed by the Official Liquidator in the matter and paragraph - 10 of the sale deed reads as under:- "10. That, the dues if any, of the company (in- Liqn.) up to date of winding up order passed by the Hon'ble High Court of Madhya Pradesh, Indore Bench will be treated as debt / claim against the company (in Liqn.) and may be dealt by the Vendor (Official Liquidator) in accordance with law subject to approval of Hon'ble Hight Court of M.P. Indore Bench. The Vendee / Auction Purchaser shall liable to pay all dues relating to Government / semi-Government / local / authorities / other statutory dues, if any arises from the date of confirmation of sale of above assets / properties as described under Lot No.2 & 3 of the Company (in Liqn) by the Hon'ble High court i.e. from 25.07.2017 and 27.11.2017 respectively." Undisputedly, in the present case, the dues, which are subject matter of the present writ petition, are dues prior to 25.07.2017. 21. Learned counsel for the petitioner was fair enough in making ....
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....ections to such premises shall not be refuse by the distribution Licensee in following cases :- (i) On vacation of government quarter / falt on transfer of an employee leaving arrears of electricity charges, new occupant shall not be required to pay the electricity dues of erstwhile consumer. (ii) If there is a specific order from a court for non-recovery of arrears outstanding on the premises." The aforesaid clause is certainly not at all applicable in the facts and circumstances of the present case. In the present case during the pendency of the company petition, the respondent has filed an Interlocutory Application claiming its dues and on the basis of some assurance given by the promoter of Dhar Cement Limited, the respodnent has not proceeded further against the Dhar Cement Limited in respect of the dues. The respondent did not object to the disposal of the Interlocutory Application, they in fact abandoned their claim before the learned Company Judge, they were having the forum to recover the amount but for the reasons best known to the officers of the respondent / Company, the order passed by the learned Company Judge was not challenged and no claim of wh....
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....he opinion that in case of a fresh connection though the premises are the same, the auction purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard. Though we find some merit in the submission of the learned counsel for the appellant calling for reconsideration of the wide propositions of law laid down in Isha Marbles' case (supra), we think the present one is not a case for such exercise. We leave the plea open for consideration in an appropriate case." In the aforesaid case, the auction purchaser were not held liable to clear the dues incurred by the previous owner. 27. The respondents has also placed reliance upon a judgment delivered in the case of Paschimanchal Vidyut Vitran Company Limited (supra). Paragraphs - 10 to 12 of the aforesaid judgment read as under:- "10. But the above legal position is not of any practical help to a purchaser of a premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can....
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....nd for indemnity in the event they are made liable. Be that as it may. 12. In this case, when the first respondent, who was the purchaser of a sub-divided plot, wanted a new electricity connection for its premises, the appellant informed the first respondent that such connection will be provided only if the electricity dues are paid pro-rata. They were justified in making the demand. Therefore, it cannot be said that the collection of Rs. 8,63,451/- from first respondent was illegal or unauthorized. It is relevant to note that when the said amount was demanded and paid, there was no injunction or stay restraining the appellant from demanding or receiving the dues." In the aforesaid case, it has been held that the distributor of the Electricity Company can stipulate the terms and conditions in respect of the supply of electricity even if the rules and regulations are salient. The aforesaid judgment also does not help the respondent. 28. Reliance has also been placed upon several judgment, as mentioned in earlier paragraph, however, the present case is having a distinguishable feature on the following grounds :- (a) In the sale deed executed in favour of the p....
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....bles,3 the sale was in pursuance of Section 29(1) of the State Financial Corporations Act, 1951, but the important aspect was that there was no clause specifically dealing with the issue of electricity dues or such other dues, as in the present auction notice. This Court elucidated the position in the context of Section 24 of the Electricity Act, 1910, to emphasise that under Section 2(c) of the Electricity Act, a consumer means any person who is supplied with energy, and since liability to pay electricity dues is fastened only on the consumer, at the relevant time, the purchaser was not the consumer. It has also been stated that in the absence of consumption of electricity, the subsequent purchaser was merely seeking reconnection without there being any statutory dues towards consumption charges. We had specifically posed a question to the learned counsel for the respondent in the order dated 15.11.2019, that whether, in the context of the judicial pronouncements sought to be relied upon, there was a 3 (supra) specific clause in the nature of Clause 26 as in the present E-auction sale notice, which absolved the Authorized Officer of various dues including "electricity dues". On th....
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....of dues cannot per se be termed as unreasonable or arbitrary. 14. We may notice a slightly contra view in Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri & Ors., (2010) 9 SCC 145 in a given scenario where the pendency of electricity dues was not mentioned in the terms & conditions of sale, and it was held in those facts that the dues could not be mulled on to the subsequent transferee. 15. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr. (2012) 13 SCC 479 a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. found that the facts were similar to (2 Judg....
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....tatement was made by the applicant promoter / contributory (Dhar Cement Limited, a Company in liquidation) that the electricity charges would be paid by the applicant in accordance with law (by Dhar Cement Limited) and in those circumstances, I.A. No.6303/2013 was disposed of. Nothing prevented the respondent / Company to prefer a subsequent application before the Company Judge after sale of the property claiming their dues. For the reasons best known to the respondent, they kept quiet over the matter and there was no whisper at a later stage in respect of the dues of the Electricity Board before the learned Company Judge nor the order passed by the learned Company Judge dated 31.01.2014 was challenged at any point of time before any forum. A sale deed was executed by the Official Liquidator in which, it has been categorically mentioned that dues prior to 27.11.2017 will not be recovered from the present petitioner. The learned Company Judge has affirmed the sale deed and it was executed pursuant to the order passed by the learned Company Judge and the same has not been challenged before any forum. 32. In the considered opinion of this Court, the question of recovering the dues ....