JUDGEMENT

ASHOK BHUSHAN, J. This Appeal has been filed against the order dated 05.10.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata deciding the I.A. No. 748(KB)2021 filed by the Respondent No.1 seeking direction to restore the electricity connection by the Appellant. By the impugned order the Adjudicating Authority has directed the Appellant, electricity provider, to energize the connection of the Corporate Debtor and further to refund the balance to the Appellant (Respondent No.1) after retaining the security deposit amount as per Regulation. The Respondent No.1 was also directed to make payment of statutory charges, if any. Aggrieved by the order dated 05.10.2021, this Appeal has been filed by the Appellant. Brief facts of the case necessary to be noticed for deciding this Appeal are:

i.

The Corporate Debtor has obtained an electricity connection from the Appellant. By an order dated 09.03.2018, on an application by State Bank of India, Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor. Due to non-payment of electricity dues, the Appellant disconnected the electricity supply of the Corporate Debtor on 24.12.2018. No Resolution Plan having been approved, the Adjudicating Authority passed an order on 12.02.2019 directing for liquidation of the Corporate Debtor. The Respondent No. 2 was appointed as Liquidator. -3- ii.

The Liquidator issued an e-auction notice for going concern sale of the Corporate Debtor. In e-auction, the Respondent No. 1 was declared as Successful Auction Purchaser of the Corporate Debtor.

After few litigation pertaining to e-auction, a joint settlement was entered between the Liquidator, the Auction Purchaser, State Bank of India and Bank of Baroda on 24.05.2021. The Adjudicating Authority vide order dated 21.06.2021 noticed the Settlement Agreement and also recorded the submission of Respondent No. 1 that Liquidator may be directed to pay electricity charges as per Section 53 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘IBC’). After the aforesaid order, the Liquidator confirmed the auction and issued a Sale Certificate dated 16.09.2021. iii.

The Respondent No. 1 preferred I.A. No. 748 (KB) 2021 before the Adjudicating Authority seeking restoration of electricity supply to the premises of Corporate Debtor. The Adjudicating Authority on 06.09.2021 recorded that the Applicant – Respondent No. 1 proposes to deposit a sum of Rs.20 Crores plus whatever charges are applicable to energize the connection from the Grid to the premises in question. The Adjudicating Authority directed that on deposit of Rs.20 Crores, the Appellant shall take necessary steps to energize the connection. However, this order dated 06.09.2021 was without prejudice to the rights and contentions of the parties in the application. In the Application a Reply was filed by the Appellant. -4- Appellant opposed the application stating that Respondent No. 1 is liable to pay all outstanding dues of the Corporate Debtor as per Regulation 8.4 of the General Terms and Conditions of Supply and even if Respondent No. 1 is Auction Purchaser it has liability to clear the entire dues of the Corporate Debtor, only then a fresh connection can be granted. The Adjudicating Authority by the impugned order held that since the sale is as a going concern basis, the Corporate Debtor is entitled to receive connection in its own name. The Adjudicating Authority directed the Appellant to energize the connection to the Corporate Debtor and further directed to refund the balance to the Respondent No. 1 after deduction of Security Deposit as per Regulations. Following are the directions issued by the Adjudicating Authority in Para 17:-

“17. In light of the facts stated in the application and the submissions made, the application be and the same allowed and the following is ordered:

a. Since a deposit of Rs.24.50 Crore