TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 639
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.... Authority (NCLT, Kolkata Bench) in I.A.(IB) No. 119/KB/2021 in CP (IB) No.1440/KB/2018. 2. On an application to be filed by the Successful Resolution Applicant Kharkia Steels Pvt. Ltd. for a new connection on temporary basis the Adjudicating Authority has directed by the Impugned Order that the successful resolution applicant shall deposit the requisite security deposit amount for the new connection to DVC, whereafter DVC shall process the application within ten days and provide the new connection for electricity supply to the successful resolution applicant. The Appellant/DVC is aggrieved by this order in that while his appeal CA (AT)(Ins) 1111 of 2019 is pending consideration before the NCLAT, wherein he has assailed the approval of the resolution plan, the Adjudicating Authority has provided a final relied in the form of direction for providing new connection to the successful resolution applicant. 3. The facts of the case, as stated and argued by the Appellant/DVC, are that the Appellant/DVC entered into a Power Purchase Agreement with Corporate Debtor Kharkia Steels Pvt. Ltd. (Respondent No. 1) on 28.7.2009. Due to large quantum of unpaid dues, a notice of disconnection of ....
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....ply Code) Regulations made under the Electricity Act, and thus the Adjudicating Authority has exceeded its jurisdiction by approving a resolution plan which, inter alia, takes away the right of the Appellant available under the Electricity Act and WBERC Regulations. She has referred to clauses 4.1.4, 4.6.3 and 4.6.4 which relate to disconnection of power supply, deemed termination and reconnection in same premises respectively to claim that the payment of past dues and reconnection of the power supply in the same premises are covered under the WBERC Regulations and this right of DVC cannot be taken away through the approved resolution plan. 7. I this regard the Learned Sr. Counsel for Appellant has also referred to the judgments of Hon'ble Supreme Court in the matters of M/s. Embassy Property Developments Private Ltd. Vs. State of Karnataka and Ors. (2019 SCC OnLine SC 1542) and Gujarat Urja Vikas Nigam Limited Versus Amit Gupta & Ors [2021 SCC OnLine SC 194] to claim that the contract relating to Power Purchase Agreement ought to adjudicated under the Electricity Act and related WBERC Regulation and the jurisdiction of NCLT is barred from considering such disputes. 8. In reply, ....
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....g Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that a Corporate Debtor needs to keep going as a going concern during the Insolvency Resolution Process; that it needs to maximize the value of its assets; and that the interests of all stakeholders, including operational creditors has been taken care of." 10. Regarding payment of past dues, the Learned Senior Counsel for Respondent has cited the judgment of Hon'ble Supreme Court in the matter of India Resurgence ARC Private Limited vs. Amit Metaliks Ltd. & Another (2021 SCC Online SC 409) to emphasize that the business decision taken in exercise of the commercial wisdom of Committee of Creditors cannot be interfered with unless creditors belonging to a class being similarly situated are denied fair and equitable treatment. He has also referred to para 20 of the India Resurgence judgment (supra)to argue that asking for past dues and security is inapt and ill conceived. Thus, the Learned Senior Counsel for Respondents has argued that since the Resolution Plan has been ....
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....hether disputed or not and which include principal, arrears, interest on arrears, delayed payment, charges, penalty, etc. till the Effective Date and charges, if any demanded for resumption of power) shall stand extinguished by virtue of the order of NCLT approving this plan and the Corporate Debtor shall not be liable to pay any amount against such demand save and except to the extent of the amount stated in section 6.6.5. b. Immediately after the Effective Date, DVC should acknowledge that its dues from the CD is restricted to the settlement amount proposed under section 6.6.5 of section II of part B (financial plan) of this regulation plan and shall issue a certificate to the CD to that effect. c. DVC should not raise any further demand on account of dues prior to the Effective Date. d. DVC should restore the power connection immediately after the Effective Date and shall not withhold/disconnect the Power supply on the ground of pending old dues prior to the Effective Date. e. DVC should withdraw all legal cases filed, if any, immediately after the Effective Date. f. DVC to commit supply of power to the plant of CD immediately after the Effective Date. g. DVC should ....
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....wer to the corporate debtor under a new agreement shall be at the tariff rate and conditions that would prevail at the time of signing of the agreement for a fresh connection by DVC with the Successful Resolution Applicant. 17. We are of the view that the commitment to supply power to the corporate debtor should be in accordance with the WBERC Regulations made under the Electricity Act. Clause (g) above, which directs DVC to ensure availability of continuous power to the plant at the same rate at which it is supplied power to the adjoining units, will have to be modified since the conditions that are applicable for supplying power to the corporate debtor under a new agreement shall be at the tariff rate and conditions that would prevail at the time of signing of the agreement for a fresh connection by DVC with the Successful Resolution Applicant under WBERC Regulations. 18. The import of various judgments cited by the Ld. Senior Counsels of Appellant and Respondents vis-à-vis the approval of the resolution plan is included in the judgment in CA (AT)(Ins) No. 1111 of 2020 and insofar as the issue in this appeal is concerned, we do not consider discussion of these judgments ....