Sri Vasavi Industries Limited And ... vs West Bengal State Electricity ...
2022 Latest Caselaw 538 Cal

    02
14.02.2022
  TN



                              WPA No.1936 of 2022

                     Sri Vasavi Industries Limited and another
                                     Vs.
                     West Bengal State Electricity Distribution
                                 Company Ltd.

                              (Via Video Conference)


             Mr.   Joy Saha,
             Mr.   Swatarup Banerjee,
             Mr.   Shaunak Mitra,
             Mr.   Moti Sagar Tiwari,
             Mr.   Hemant Tiwari
                                                  .... for the petitioners


             Mr.   Abhrajit Mitra,
             Mr.   Jishnu Chowdhury,
             Mr.   Chayan Gupta,
             Mr.   Sandip Dasgupta,
             Mr.   Saaqib Siddique,
             Mr.   Aviroop Mitra
                                    .... for the respondent-WBSEDCL

Learned senior counsel appearing for the

petitioners contends that the writ petitioners have a

strong prima facie case on the proposition that the

claim raised by the West Bengal State Electricity

Distribution Company Ltd. (for short "the

WBSEDCL"), of about Rs.25 crores of dues, is

overridden by the Corporate Insolvency Regulation

Plan, which has already been approved by the

Adjudicating Authority and the Appellate Authority. It

is contended that a conjoint reading of Sections 31(1)

and 238 of the Insolvency and Bankruptcy Code (IBC),

can lead to the only conclusion that whatever right is

provided by virtue of any agreement or any other law

for the time being in force, is subservient to the

provisions of the Corporate Resolution Plan.

Learned senior counsel further contends that

the WBSEDCL cannot, accordingly, withhold electric

connection, to which the petitioners are entitled under

Section 43 of the Electricity Act, 2003, on the ground

of alleged dues, in view of no such dues having been

specified or stipulated in the resolution plan.

Learned senior counsel for the petitioners places

reliance on certain judgments, in particular,

Paschimanchal Vidyut Vitran Nigam Ltd. vs. Raman

Ispat Private Limited and others, reported at 2019 SCC

OnLine NCLAT 883, Committee of Creditors of Essar

Steel India Limited through Authorised Signatory vs.

Satish Kumar Gupta and others, reported at (2020) 8

SCC 531 and Ghanashyam Mishra and Sons Private

Limited through the Authorised Signatory vs. Edelweiss

Asset Reconstruction Company Limited through the

Director and others, reported at (2021) 9 SCC 657, in

support of his proposition and submits that extensive

publications were made in respect of the Corporate

Insolvency Resolution Proceeding (CIRP), in several

newspapers having wide circulation statewide all

through India and in particular several publications

made in the respective vernacular languages of the

said States as well.

However, learned senior counsel appearing for

the WBSEDCL submits that the Distribution Licensee

seeks to use an affidavit-in-opposition to the writ

petition in order to disclose certain relevant

documents, including a pre-existing contract as well

as a decree of a civil court, which might run contrary

to the contentions of the petitioners. Learned senior

counsel also relies on the Supreme Court judgment of

Jaypee Kensington Boulevard Apartments Welfare

Association and others vs. NBCC (India) Ltd. and

others, rendered on March 24, 2021, in support of his

proposition that if a resolution plan does not modify

the terms of a contract specifically, such agreement

would prevail over the resolution plan.

Learned senior counsel further contends that, in

view of the said documents and since the petitioners

have about a year for commencing functioning as per

the resolution plan, the petitioners have no immediate

urgency to seek any interim relief, which would

virtually tantamount to granting the petitioners the

final relief claimed in the writ petition inasmuch as

restoration of electric connection is concerned.

In view of the multipronged arguments made by

both sides, it would only be appropriate if the writ

petition itself is decided on merits, instead of granting

an ad interim relief at this stage.

As such, to facilitate early hearing of the writ

petition, the respondent shall serve copies of the

relevant documents, on which they want to rely, to the

learned Advocate-on-record appearing for the

petitioners by February 21, 2022. It is understood

that, unless the petitioners have a factual objection as

to the veracity of such documents, the writ petition

will be taken up for final hearing and disposal on the

next returnable date on the basis of the pleadings and

papers already on record as well as the documents

which shall be filed by the parties.

The matter shall next be enlisted for final

hearing on February 22, 2022 at 2 p.m.

(Sabyasachi Bhattacharyya, J.)