IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18445 of 2011 1. M/S Kamper Concast Ltd., A Company Incorporated Under The Companies Act Having Its Office At 406 N.P. Centre, New Dak Bunglow Road, Patna 800001 Through Its Director Rajesh Kumar Goyal S/O Late Vinod Kumar Goyal Resident Of 1/11 Ew Patliputra Colony , P.S. Patliputra, Distt. Patna Versus 1. The Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna 800001 Through Its Chairman 2. The General Manager Cum Chief Engineer, Central Area Electricity Board, Serpentine Road, Patna 3. The Electrical Superintending Engineer, Patna Electric Supply Circle, R Block, Patna 4. The Electrical Executive Engineer, Commercial & Revenue , Patna Electric Supply Circle, R Block, Patna For the Petitioner : Mr. Suraj Samdarshi, Advocate For the Board : Mr.Anand K. Ojha, Advocate 4 23.12.2011 The petitioner seeks declaration that a company which has been declared sick by the Board for Industrial & Financial Reconstruction (in short „BIFR‟), coercive steps cannot be taken for realization of energy charges, in view of section 22(1) of the Sick Industrial Companies Act, 1985 (in short „SICA‟). The petitioner further prays for a direction to the respondent Board not to disconnect electric supply of the petitioner for outstanding amount of fuel surcharge in view of order of BIFR dated 7.4.2011 and 11.4.2011 in Misc. Application No.217 of 2011. The petitioner is a HTSS consumer. In the year 2002 the petitioner filed a reference before the BIFR under SICA giving rise to BIFR Case No.294/2002. The BIFR declared the petitioner company as Sick Industrial Company by order dated 28.3.2003 and appointed Bank of Maharastra as Operating Agency under section 173(3) of the Act for formulation of the rehabilitation scheme for 2 the petitioner company. The petitioner company was also directed to submit the scheme to the Operating Agency. In view of the steps taken by the BIFR and the Nodal agency, the petitioner was able to liquidate the dues of secured creditors. However, dues of some of the unsecured creditors still remained to be paid. The petitioner was advised to file revised DRS incorporating settlement of the un- provided liabilities to Operating Agency. In the meantime, the petitioner company received a notice no.1252 dated 18.3.2011 under section 56 of the Electricity Act, 2003 for payment of a sum ofRs.1,19,06,413/- towards FPPCA charges in three installments within fifteen days. In the meantime, the BIFR vide its order dated 11.4.2011 passed in Misc. Application No.217 gave the following directions in para 2.4 which reads as under: “2.4 After considering the submissions made and the material on record, the Bench issued the following directions:- i) Bihar State Electricity Board (BSEB) to file its rejoinder on the MA filed by the company, to the Board with a copy to the company within 15 days. ii) The Company to serve summary record of proceedings of to-day‟s hearing on BSEB. iii) BSEB is restrained from dis-connecting power connection of the company without the prior approval of the Board till the next date of hearing. iv) The company to pay the current bills on account of electricity consumption to BSEB without fail. v) The next hearing in Miscellaneous Application 3 (MA) No.217 will be held on 11.5.2011”. The BIFR vide order dated 12.5.2011 in Miscellaneous Application No.217 gave time to the Board to file rejoinder and restrained the Board from disconnecting power connection of the company consequent to non-payment of FPPCA charges till the next date of hearing. Thereafter another bill was issued by the Board revising the amount of FPPCA charges. Learned counsel for the Board submits that paragraphs 10, 11 and 12 of the counter affidavit answers the points raised by the petitioner. In nut shell, the Board submits that payment of electrical energy dues is not exempted under section 22(1) of the SICA. Learned counsel for the Board further submits that legal action is barred mainly in respect of realization of loan taken by a company / firm, if reference in this respect is entertained by BIFR. He further submits that during the pendency of this application, a final assessment order in terms of section 126(3) has been passed and as such remedy available to the petitioner would be in form of an appeal under section 127 of the Act. Counsel for the petitioner submits that he has already paid almost half of the statutory amount falling short by Rs.4-5 lac. He also contends that if an appeal is filed under Section 127, the Board cannot disconnect electric connection and in case it has disconnected the same, it would be obliged to restore the same. He submits that he has not preferred an appeal as he has already raised various issues in other writ petitions would form subject matter of appeal under Section 127 as well. 4 As the other writ petitions are not before this court, the petitioner may be at liberty to file an appeal on payment of balance of Rs.4-5 lacs. It will be open for the petitioner if advised to make an application in the appeal for interim stay of the proceeding till adjudication of the connected matter in the writ petitions. The petitioner submits that in other more or less similar cases, the Board has granted easy installments to its licensee / consumers. If the petitioner files an application before the Financial Controller within a period of two weeks from today, the latter would allow payment of FPPCA in 12 equal monthly installments. On payment of first installment, the electric line of the petitioner would be restored. The petitioner would continue to pay current electric charges. The application is disposed of with the aforesaid direction. Let a copy of this order be handed over to learned counsel for the Board as well as petitioner. KHAN (S.P. Singh.J)