Calcutta High Court (Appellete Side)
Sri Vasavi Industries Limited And ... vs West Bengal State Electricity ... on 14 February, 2022
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 2 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 3 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 4 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.)