Swastik Aqua Ltd. And Anr vs Jharkhand Bijli Vitran Nigam Ltd. ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No. 847 of 2022 IN THE MATTER OF: Swastik Aqua Ltd. & Anr. ...Appellant Versus Jharkhand Bijli Vitran Nigam Ltd. & Anr. ...Respondents Present: For Appellant: Mr. Milan Singh Negi, Mr. Nikhil Kumar, Advocates For Respondent: Mr. Kumar Anurag Singh, Mr. Zain A Khan, Advocates for R1 Mr. Abhishek Anand, Mr. Karan Kohli, Mr. A.P.Singh Gaur, Advocates for R-2

ORDER

28.03.2023: Heard Learned Counsel for the Appellant as well as Learned

Counsel appearing for the Respondent.

2. This appeal has been filed against the order dated 02.06.2022 passed by

the Adjudicating Authority by which Adjudicating Authority has dismissed the

application IA No. 1520/2021 filed by the 'Resolution Professional' (RP). The

CIRP against the Corporate Debtor commenced on 09.12.2019. 'Committee of

Creditors' (CoC) has approved the plan on 07.08.2020 which also stood approved

by the Adjudicating Authority on 24.11.2020.

3. The Appellant before us is the 'Successful Resolution Applicant' (SRA)

whose plan was approved. The application was filed by the 'Monitoring

Professional' being IA No. 1520/2021 where following prayers have been made:-

"(a) Allow the present application; and

Company Appeal (AT) (Insolvency) No. 847 of 2022 1

(b) Direct the Respondent to reconcile/submit

the fresh bill/invoice of pending amounts due

during the CIRP period i.e. from 09.12.2019 to

24.11.2020 amounting to approximately Rs.

14,39,025/- (after reducing the same on account

of order passed by the JSERC dated 21.09.2020

giving reductions and relaxations on account of

Covid-19), so that the same can be paid as CIRP

Costs;

(c) Direct the Respondent to reconcile/submit

the fresh bill/invoice of pending amounts due

after the conclusion of the CIRP Period i.e. for the

Monitoring period (for the Monitoring Period), so

that the same can be paid on actual basis, by the

Resolution Applicants;

(d) Direct the Respondent not to disconnect the

electricity connection of the Corporate Debtor and

restrain the Respondent from taking any coercive

actions in terms of the Electricity Act, 2003;

(e) Pass such other or further order/order(s) as

may be deemed fit and proper in the facts and

circumstances of the instant case."

Company Appeal (AT) (Insolvency) No. 847 of 2022 2

3. Learned Counsel for the Appellant submits that the Appellant has paid

the electricity dues during the CIRP period and the issue between the parties

was with regard to dues of pre-CIRP period. It is submitted that however, the

payment was made to the post approval of the Plan on 29.06.2021.

4. Learned Counsel for the Appellant submits that the application does not

deserves to be rejected since the electricity Department cannot use the non-

payment of pre-CIRP dues for disconnecting the electricity and further in the

CIRP no claim was filed by the Department with regard to pre-CIRP dispute.

5. Learned Counsel for R-1 submits that payment of bills was made and in

fact electricity has never been disconnected. He, however, submits that

Promoters who submitted the plan ought to have mentioned about the dues in

the 'Information Memorandum'.

We have considered the submissions of the Learned Counsel for the parties

and perused the records.

6. There can't be any dispute that the Appellant/Monitoring

Professional/Resolution Professional were liable to make the payment of the

dues during the CIRP period, which according to Appellant stood paid.

7. We only observed that in the event any amount is still due with regard to

the electricity dues during the CIRP, it shall be open for the Department to

issue bill and realise the same. We further make it clear that R-1 having not

filed any claim in the CIRP regarding pre-CIRP dues, it is not entitled to recover

the pre-CIRP dues and on non-payment of the said amount, to disconnect

Company Appeal (AT) (Insolvency) No. 847 of 2022 3 the electricity. The prayers made in the (a) and (b) made in the application does

not require any consideration.

With the aforesaid, we dispose of the appeal.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

ss/nn

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