TaxTMI 
TaxTMI 
2025 (2) TMI 425
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....ustrial purposes. ii. A Section 7 Application was admitted against the Corporate Debtor on 03.02.2020 on an Application filed by the State Bank of India (SBI). iii. The Appellant disconnected the electricity on 19.02.2020. iv. An I.A. No. 692/2020 was filed by the Resolution Professional (RP). On 19.10.2020, Adjudicating Authority directed the Appellant to restore the electricity in the premises within 7 days of payment of all consumption charges pertaining to the Moratorium period. v. The Appellant on 13.11.2020 has filed its claim to the RP, which was admitted to the extent of Rs. 2,32,13,387/-. vi. A Resolution Plan was approved by the Committee of Creditors (CoC) on 21.09.2021. As per the Resolution Plan, the Appellant offered to make payment of Rs.4,64,003/-. The Resolution Plan was approved by the Adjudicating Authority vide Order dated 21.09.2021. By the Order approving the Resolution Plan, the Adjudicating Authority also granted certain reliefs and concessions. vii. On 29.10.2021, the Corporate Debtor wrote to the Appellant that Corporate Debtor is ready to pay 4.643 Lakhs to the Appellant as per the Order dated 21.09.20....
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....r the Appellant challenging the Impugned Order submits that after approval of the Resolution Plan on 21.09.2021, the Respondent No.1 of its own entered into new Power Purchase Agreement on 13.05.2022 and had paid the outstanding dues. The Appellants were bound to receive the amount outstanding against the Corporate Debtor before resuming supply of the electricity by virtue of WBERC (Electricity Supply Code Regulations) dated 07.08.2013 and Respondent No.1, having entered into the Agreement and made the payment, it has no authority or jurisdiction to file an Application for refund of the payment. It is submitted that issue which arose out of the fresh contract was beyond the jurisdiction of the Adjudicating Authority. Adjudicating Authority committed error in entertaining the Application filed by the Respondent No.1. Learned Counsel for the Appellant has referred to Regulation 4.6.4 of WBERC Regulations. It is submitted that Resolution Plan having been approved and implemented, the process of IBC comes to an end and after entering into a new Power Purchase Agreement, there was no right in the Respondent to file Applications before the Adjudicating Authority and Adjudicating Authorit....
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....this Tribunal and Hon'ble Supreme Court, which we shall refer while considering the submissions. 7. From the pleadings of the facts, following facts are undisputed: i. CIRP against the Corporate Debtor commenced on 03.02.2020. The Corporate Debtor was receiving supply from Appellant as per Power Purchase Agreement, 14.12.2009. ii. After insolvency commencement on 19.02.2020, the power supply was disconnected which was restored subsequent to the Order dated 19.10.2020 passed by the Adjudicating Authority. The Appellant filed its claim before the RP on 30.11.2020. RP admitted the claim to the extent of Rs.2,32,13,387/-. The Resolution Plan was approved by the Adjudicating Authority on 21.09.2021. iii. As per the Resolution Plan under the distribution mechanism, the Appellant was allocated amount of Rs.4,64,003/- against its admitted claim of Rs.2,32,13,387/-. The amount approved by the Resolution Plan was paid by the Respondent No.1 on 02.11.2021. The Order of the Adjudicating Authority approving the Resolution Plan also granted certain relief and concession to the SRA. 8. It is useful to notice Paragraph 24 Item No.1 of the Order of Adjudicating Auth....
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....e Adjudicating Authority in the Impugned Order has relied on the Judgment of the Hon'ble Supreme Court in the matter of 'Ghanshyam Mishra & Sons Private Limited' Vs. 'Edelweiss Asset Reconstruction Company Ltd.' reported in (2021) 9 SCC 657. The law declared by the Hon'ble Supreme Court is well settled that the Resolution Plan is binding on all stakeholders. The claim of Appellant of electricity dues pre-CIRP including the payment of delayed charges regarding pre-CIRP stood dealt with in the Resolution Plan by virtue of allocating amount of Rs.4,64,003/-. Hence, DVC was not entitled to claim pre-CIRP dues when the SRA applied for resumption of electricity supply. DVC was entitled to take all necessary charges, including security and reconnection charges, but could not have insisted on payment of pre-CIRP dues outstanding on the Corporate Debtor. The correspondence entered between the Parties after the approval of the Resolution Plan has been brought on record in the Reply filed by the Respondent No.1. It is relevant to notice correspondence between the Parties to consider the issues raised between the Parties. On 29.10.2021, the Corporate Debtor wrote to the Appellant for resumptio....
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.... Samriddhi Metals Private Limited by virtue of the order dated 21.09.2021 of the Hon'ble Adjudicating Authority of NCLT at Kolkata. That in compliance to the said order dated 21.09.2021 passed in CP(IB) No. 213/KB/2019, you are requested to pay the sum of Rs. 4,643 lakhs without any further delay. This is also to inform you that we are bound by Clause 4.6.4 of WBERC (Electricity Supply Code) Regulation dated 07.08.2013 which states as follows. "Notwithstanding anything contained contrary elsewhere in these regulations were deemed termination of agreement has taken place, then o the basis of application of any consumer, new service connection can only be provided in the same premises if the outstanding dues against the deemed terminated consumer is cleared along with the late payment surcharge." The due amount payable to DVC is Rs. 1,72,23,024/- as on 31.03.2021 along with further delayed payment surcharge as applicable in terms of West Bengal electricity Regulatory Commission (Terms and Conditions of Tariff) Regulation, 2011 till the ate of actual payment. Without prejudice to the foregoing, we would be able to take action for resumption of power....
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..... [Old Consumer No. 440291] Ref: (i) Your Letter No. MIFL/DVC/21-22/02 dtd. 07.12.2021 (received vide email dtd. 07.12.2021) Dear Sir, This has reference to your letter dated 07.12.2021 mentioned under ref. (1) above regarding terms and conditions for resumption of power supply to M/s Mackeil Ispat Forging Ltd. In this regard, it is to inform that power supply to M/s Mackeil Ispat Forging Ltd. May be restored after fulfilment of following commercial terms and conditions at your end. 1. Payment of balance dues (principal) amounting to Rs. 1,60,12,774/- prior to reconnection of power supply. Delay payment surcharge will be charged as per WBERC Regulation (Total principal dues of M/s Mackeil Ispat Forging Ltd. As on 07.12.2021 is Rs. 1,72,32,836/- out of which M/s Mackeil Ispat Forging Ltd. have made payment amounting to Rs. 12,20,062/- 2. Payment of security deposit amounting to Rs. 1,35,15,000/- (commensurate with the CD of 1.7 MVA) prior to reconnection of power supply. 3. Payment of reconnection charge Rs. 1200/-. Your sincerely Sd/- B. Mondal (07.12.2021) Dy. Chief Engineering (Commercial)" ....
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....r annum from the date when such excess payments were made to the Respondent, until recovery; b) To direct the Respondent to act in strict compliance of the order of this Tribunal dated September 21, 2021 passed in IA(IB) No. 398/KB/2021 in CP(IB) No.213/KB/2019 together with the Resolution Plan of the Applicant No.2; c) To restrain/injunct the Respondent from adjusting or claiming any further amounts in terms of its demand dated January 5, 2022 towards "Delayed Payment Surcharge" till the final adjudication of the present Application by this Hon'ble Tribunal d) Ad-interim orders in terms of prayers (b) and (c) above. e) Costs; f) Such further orders and/or directions be passed a this Hon'ble Tribunal deems fit and proper." 15. Another Application which has been filed by the Respondent is I.A.1336/2022, in which Application following prayers were made: "a) Order restraining the Respondent from taking any coercive steps or actions against the Applicants, including but not limited to disconnection notice dated October 18, 2022; b) Order restraining the Respondent from taking any steps or further steps to recover....
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....ion to the Code and principles laid down with respect to the Code in terms of the above referred judgment. 14. In view of the above, we direct DVC to refund the amount received by it which was of Pre-CIRP including the Delayed payment surcharge thereon within one month from the date of this order. Further, DVC shall not disconnect the supply of electricity without following the due course of law. 15. The above directions shall not be construed as any manner, a relaxation of any fees or charges payable by the Applicant to DVC with respect to the new connection and concurrent charges. 16. In view of the above directions, I.A. (IB) No. 1336/KB/2022 and I.A. (IB) No. 463/KB/2022 in C.P. (IB) No. 213/KB/2019 are allowed and disposed to the extent as directed above." 18. The first submission which has been raised by the Counsel for the Appellant is that Adjudicating Authority has no jurisdiction to entertain the Application and the Adjudicating Authority had become quorum non-judice. We have already noticed above the approval of the Resolution Plan by the Adjudicating Authority dated 21.09.2021 and the claim which was filed by the Appellant in the CIRP. The ....
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....tinguished. In the present case, the DVC has filed its claim in the CIRP of Rs.2,32,13,387/- for which an amount of Rs.4,64,003/- was allocated for the Resolution Plan. Judgment of this Tribunal relied by the Respondent in the matter of 'Damodar Valley Corporation' Vs. 'Kharkia Steels Pvt. Ltd. & Ors.' reported in (2022) SCC OnLine NCLAT 2282, as well as the Judgment of the Hon'ble Supreme Court in 'Paschimanchal Vidyut Vitran Nigam Ltd.' Vs. 'Raman Ispat Pvt. Ltd. & Ors.' reported in (2023) 10 SCC 60 as well as the Judgment of the Hon'ble Supreme Court in 'Ghanshyam Mishra & Sons Pvt. Ltd.' (Supra) clearly lays down that all claims after approval of the Plan stands extinguished. 24. Learned Counsel for the Appellant sought to contend that R-1 has with open eyes entered into new Power Purchase Agreement and offer to make payment and by doctrine of estoppel it is disentitled to claim any refund of the amount. Learned Counsel for the Appellant has also referred to following part of the Power Purchase Agreement dated 03.01.2022: "AND WHEREAS the Consumer agreed to accept the liabilities of M/s. MACKEIL ISPAT & FORGING LTD. which might accrue due to the execution of this Ag....