2023 Supreme(Online)(NCLAT) 439
Cont’d…/
NATIONAL COMPANY LAW APPELLATE TRIBUNAL,
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) (Insolvency) No.527 of 2023
[Arising out of order dated 21.02.2023 passed by the Adjudicating Authority
(National Company Law Tribunal), Allahabad Bench, Prayagraj in I.A. No.
219/2022 in CP (IB) No.140/ALD/2017]
IN THE MATTER OF:
Paschimanchal Vidyut Vitran Nigam Ltd.
Through its Executive Engineer,
Electricity Distribution Division,
Khatauli - 251201.
Distt. Muzaffarnagar,
Uttar Pradesh.
...Appellant
Vs.
1. HSA Traders Through Sole Proprietor,
Mr. Furqab Ahmed Malik, A-26, Gali No.2,
Bhagirathi Vihar, East Delhi, Delhi- 110094.
2. Ezwaste Recycling Private Limited,
House No.2, Mohalla Dharampura,
Sardhana, Meerut, Uttar Pradesh – 250304.
...Respondents
3. Chanchal Dua, Erstwhile Liquidator of
Shashi Oils and Fats Private Limited
Having office at 1-A/85/A, Ramesh Nagar,
New Delhi- 110015.
...Proforma Respondent
Present:
For Appellant:
Mr. Pradeep Misra, Mr. Daleep Dhyani and Mr. Suraj
Singh, Advocates.
For Respondent:
Mr. Kunal Godhwani, Advocate for R-1 and 2.
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Company Appeal (AT) Insolvency No. 527 of 2023
ASHOK BHUSHAN, J.
This Appeal has been filed against order dated 21.02.2023 passed by
the Adjudicating Authority (National Company Law Tribunal), Allahabad
Bench, Prayagraj in I.A. No. 219/2022 in CP (IB) No.140/ALD/2017. I.A. No.
219/2022 filed by the Respondent, Successful Auction Purchaser having been
allowed by the Adjudicating Authority, Appellant feeling aggrieved by the order
has come up in this Appeal. Brief facts of the case necessary to be noticed for
deciding this Appeal are:
(i)
Corporate Insolvency Resolution Process against the Corporate
Debtor, Shashi Oil and Fats Pvt. Ltd. commenced by the Adjudicating
Authority on a Section 7 application filed by a Financial Creditor.
(ii)
The order of liquidation of the Corporate Debtor was passed by the
Adjudicating Authority on 21.02.2020.
(iii)
The Liquidator published E-auction Sale Notice dated 12.08.2020 on
as is where is basis, as is what is, whatever there is and without
recourse basis.
(iv)
E-auction was held on 29.08.2020 and Respondent No.1 was held to
be highest Bidder for an amount of Rs.3,78,00,000/-. The Respondent
No.1 was declared as Successful Auction Purchaser by the Liquidator
by email dated 29.08.2020.
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(v)
On 25.09.2020, the Respondent No.1 deposited the entire sale
consideration along with the GST. Sale Certificate dated 28.09.2020
was issued as well as Possession Certificate.
(vi)
The Respondent No.1 made an application to the Appellant for new
electricity connection for the premises, which was rejected by the
Appellant on the ground that there is demand of electricity dues of
Rs.39,15,625/- against the erstwhile Corporate Debtor and unless the
said amount is paid no new electricity connection can be given.
(vii)
After rejection of the prayer of new electricity connection, the
Successful Auction Purchaser i.e. Respondent No.1 filed an C.A. No.
219/2022 in the CP (IB) No.140/ALD/2017, in which following
prayers were made:
“a) Allow the present application;
b) Kindly, pass an ex parte ad interim order directing
Paschimanchal Vidyut Vitran Nigam Ltd. Not to take
any coercive steps over the property Khasra No. 38.
Village Sardhan, Budhana Road, Khatauli, District
Muzaffarnagar, Uttar Pradesh during the pendency of
the instant application;
c) pass an order declaring that Paschimanchal Vidyut
Vitran Nigam Ltd. Is not entitled to claim any dues over
the property Khasra No. 38, Village Sardhan, Budhana
Road, Khatauli, District Muzaffarnagar, Uttar Pradesh.
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d) Consequently, direct Paschimanchal Vidyut Vitran
Nigam Ltd. to grant electricity connection to Applicant
No.2 i.e. Ezwaste Recycling Private Limited.
e) Pass such other or further order(s) as may be
deemed fit and proper the facts and circumstances of
the instant case.”
(viii)
The Appellant filed a counter affidavit to the CA controverting the
contentions raised by the Applicant. It was contended on behalf of the
Appellant that the property was purchased by the Respondent No.1 on
“as is where is, as is what is, whatever there is and without recourse
basis” and if they exercised due diligence, they would have known that
there are electricity dues. They placed reliance on Clause 4.3(f)(i) of
Electricity Supply Code, 2005 and submitted that unless the dues of
erstwhile consumer are paid no new connection can be granted in the
premises.
(ix)
The Adjudicating Authority heard both the parties and by the
impugned order dated 21.02.2023 allowed the application. The
Adjudicating Authority after considering the relevant judgments of the
Hon’ble Supreme Court and this Tribunal recorded its conclusion in
Para 15 of the judgment and issued directions in Para 16. The
conclusion and directions of the Adjudicating Authority are as follows:
“15. Relying on the judicial pronouncements as
discussed in above para, we hold that right of
Paschimanchal Vidyut Vitran Nigam Ltd. to recover
outstanding
dues
of
pre-CIRP
period
is
now
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extinguished due to CIRP process getting completed
and liquidation of Corporat