2022 (11) TMI 1502

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....petitioner received the impugned communications issued by the Superintending Engineer, Pudukkottai Electricity Distribution Circle, Pudukkottai, TANGEDCO demanding payment of a sum of Rs.1,23,69,195/-. Contending that the demand is without jurisdiction, this writ petition has been filed. 2.The sheet anchor of the submission of the learned counsel appearing for the petitioner is that TANGEDCO failed to lodge its claim before the resolution professional within the time stipulated. It failed to enter appearance at any stage of the resolution process. Since the resolution plan had been approved by NCLT, the electricity dues stood extinguished. It is not open to the respondents to mulct the same from the new management. The learned counsel drew my attention to the definitional clauses as well as Section 31 and Section 238 of the Code. He placed considerable reliance on the decisions of the Hon'ble Apex Court reported in (2021) 9 SCC 657 (Ghanashyam Mishra & Sons (P) Ltd v. Edelweiss Asset Reconstruction Co. Ltd) and 2022 LiveLaw (SC) 207 (Ruchi Soya Industries Ltd v. Union of India, WP No.31090 of 2015 dated 26.04.2021). The learned counsel firmly asserted that in view of the sta....

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....under : "45.As rightly argued by the learned Solicitor General, there can be no question of acceptance of a Resolution Plan that is not in conformity with the statutory provisions of Section 31(2) of the IBC. Section 30(2)(b) of the IBC, casts an obligation on the Resolution Professional to examine each resolution plan received by him and to confirm that such resolution plan provides for the payment of dues of operational creditors, as specified by the Board, which shall not be less than the amount to be paid to such creditors, in the event of liquidation of the Corporate Debtor under Section 53, or the amount that would have been paid to such operational creditors, if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in Sub-section 2 of Section 53, whichever was higher, and provided for the payment of debts of financial creditors, who did not vote in favour of the resolution plan, in such manner as might be specified by the Board. 46.Under Section 31 of the IBC, a resolution plan as approved by the Committee of Creditors under Sub-Section (4) of Section 30 might be approved by the Adjudicating Aut....

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....prove the Resolution Plan. On the other hand, Sub-section (2) of Section 31, which enables the Adjudicating Authority to reject a Resolution Plan which does not conform to the requirements referred to in sub-section (1) of Section 31, uses the expression "may". 50. Ordinarily, the use of the word "shall" connotes a mandate/binding direction, while use of the expression "may" connotes discretion. If statute says, a person may do a thing, he may also not do that thing. Even if Section 31(2) is construed to confer discretionary power on the Adjudicating Authority to reject a Resolution Plan, it has to be kept in mind that discretionary power cannot be exercised arbitrarily, whimsically or without proper application of mind to the facts and circumstances which require discretion to be exercised one way or the other. 51. If the established facts and circumstances require discretion to be exercised in a particular way, discretion has to be exercised in that way. If a Resolution Plan is ex facie not in conformity with law and/or the provisions of IBC and/or the Rules and Regulations framed thereunder, the Resolution would have to be rejected. It is also a well settled pr....

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....ed or new service connections are to be obtained by other persons in such premises either by purchase or transfer or lease basis, the Distribution Licensee shall reconnect such service connections or effect new service connections, as the case may be, in such premises only after payment of dues attributed to such premises by the applicant: Provided that in case such premises have legally been sub-divided, the outstanding dues attributed to such premises shall be divided in proportion to the area covered by that sub-division. A new service connection to any of such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant. The Distribution Licensee shall not refuse connection to an applicant of such sub-divided premises only on the ground that, dues attributed to the other portion(s) of such sub-divided premises have not been paid, nor shall the licensee demand record of last paid bills of such other portion(s) from such applicants. (b) The authorised officer of the licensee may permit such applicant to pay the outstanding dues in instalments and to avail the service on paymen....