TaxTMI 
TaxTMI 
2010 (11) TMI 1059
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....on produced. The appellant's case is that the respondent-Electricity Board had initially agreed to supply power to the appellant @ 6 paise per unit but revised the said rate to 11 paise per unit in the year 1975. The revised rate was in the beginning applicable only to four consumers who were similarly situate but the number of such power intensive consumers gradually rose to 84. On 13th December, 1983 the Board revised the general tariff but a separate order applicable to power intensive consumers like the appellant was issued on 29th January, 1984. Aggrieved by the said order which permitted charging of a higher rate of tariff, the appellant and few others filed writ petitions before the High Court of Andhra Pradesh, which were dismissed by a Division Bench of that Court on 3rd April, 1985. During the pendency of the writ petition, however, the High Court had granted an interim order of stay against the collection of the disputed amount in the following terms: "There shall be stay of operation of the order in so far as writ petition is concerned, subject to the condition if the writ petitioner pays at the rate of 47.89 paise per unit with effect from April 1984 onwards, fur....
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....ation to the Board praying for grant of installments for payment of the balance amount. While the said request was under consideration, the appellant received a communication dated 14th June, 1991 from the Superintending Engineer pointing out that an amount of Rs. 5,57,66,539.18 was recoverable from the appellant for the period April 1984 to August 1987. For the recover of the outstanding amount the Board invoked the bank guarantee furnished to it for a sum of Rs. 2,83,53,120.93 thereby leaving a balance of Rs. 2,74,13,218.25 due and payable which amount the appellant was requested to arrange. The communication also pointed out that in addition to the above amount arrears of Rs. 4,45,63,903.21 for the period from August 1987 to July 1989 were also payable besides additional charges for delayed payments of the said amount which the latter proposed to communicate separately. 5. The request made by the appellant for payment of the balance amount of tariff arrears was accepted by the Board in terms of communication dated 9th July, 1999. It was in the above background that the appellant filed writ petitions No.9081 of 1999 and 13458 of 1993 raising common questions of law relevant to t....
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....ted relief, by awarding interest @ 18% to the Board to compensate it for the monetary loss that it may have suffered on account of delay in the making of such payment and to prevent any prejudice and consequent injustice to the Board on account of the direction issued by the Court. It was argued that the appellant-company was ready and willing to pay interest @ 18% p.a. on the outstanding amount for the relevant period but the demand raised by the Board being far in excess, deserves to be suitably reduced. 8. On behalf of the respondent it was, on the other hand, argued by Mr. C. Kodanda Ram, learned senior counsel, that the High Court was, in the facts and circumstances of the case, right in distinguishing the decisions relied upon by the appellant and declining the relief prayed for before it. It was submitted that the facts situation in which the relief was granted in those cases was different from that of the present case. It was further argued that the additional charges and interest were payable in terms of the TCS which was statutory in character and to which the appellant had agreed to abide by. The amount which the appellant had not paid would have been utilized by it in ....
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....ity supplied by it in 1980, 1982 and 1984. These revisions were challenged by MRF in a writ petition filed before the High Court of Kerala, which was together with other similar petitions disposed of by a common order by which the revisions made by the Board were struck down. Consequently MRF Limited and other consumers became entitled to the refund of the excess amount paid by them pursuant to the revised tariffs. The High Court of Kerala directed the adjustment of such amounts towards future bills to be issued by the Board. 13. Aggrieved by the order passed by the Kerala High Court the Board filed special leave petitions before this Court which were entertained by this Court and an interim order passed, inter alia, directing that pending disposal of the appeals before this Court, the refund of charges already collected shall remain stayed. It was further directed that the future charges would be collected to the extent of 50% only and the balance adjusted towards the past charges. 14. The appeals filed by the Board were finally allowed by this Court by its judgment dated 26th August, 1986 upholding the validity of the revision of the tariffs by the Board. The inevitable conclus....
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....end that although the Company or for that matter other consumers were required to pay on the basis of revisions of tariffs from the dates when such revisions became effective, liability for such payment would accrue only from the date of pronouncement of the judgment by this Court upholding upward revisions and not from any date prior to that. If the upward revisions are held as valid, enforceability of such upward revisions being consequential to such revisions, though it had remained unenforceable for some period on account of the decision of the High Court, cannot but revive from the dates of upward revisions." 16. This Court then applied the principle of restitution as enunciated by the Privy Council in Rodger v. Comptoir D'Escompte de Paris 1871 (3) PC 465 and held that it will be the endeavour of the Court to ensure that a party who had suffered on account of a decision that is finally reversed should be put back in the same position as far as the same is practicable, in which he would have been if the decision of the Court adversely affecting him had not been passed. This Court observed: "In giving full and complete relief in an action for restitution, the court has n....
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.... the tariffs providing for recovery of interest from the consumer if the latter failed to pay the amounts within the time stipulated. It is also manifest that this Court had in no uncertain terms held that even after the upward revisions of the tariffs had remained unenforceable for a certain period on account of erroneous judgment of the High Court, the moment the said judgment was set aside in appeal, the liability to pay revived with full force from the date the revisions were made effective. The very fact there was during the intervening period an erroneous decision of the High Court obliterating the revision in full or in part would make little difference in so far as the liability to pay the amount under the revised tariffs was concerned. So also the fact that the consumers were not deliberately in default on account of the judgment of the High Court did not affect the enforceability of the demand arising from the revised tariffs or the stipulation regarding payment of interest demanded on the same on account of the non- payment or delayed payment of the amount recoverable by the Board. 19. Suffice it so say that the decision of this Court in the case of Kerala State Electri....
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....ny in its endeavour to avoid payment of the amount which became recoverable from it no sooner the judgment of the High Court was reversed in the earlier round of litigation upholding the revision of the tariffs. 22. That brings us to the decision of this Court in Kanoria Chemicals and Industries Ltd. and Ors. v. U.P. State Electricity Board and Ors. (1997) 5 SCC 772. That was also a case where the validity of a notification issued by the U.P. State Electricity Board revising the electricity rates/tariffs under Section 49 of the Electricity (Supply) Act, 1948 was challenged by the consumers. Interlocutory applications filed in the writ petitions for stay of the operation of the impugned notification were eventually dismissed by the High Court whereupon the consumers deposited the differential amount between the pre-revised and the revised electricity rates. Consumers did not, however, deposit the late payment surcharge "recoverable" in terms of Clause 7(b) of the notification. Notices of demand were, therefore, issued to the consumers which were challenged in a fresh batch of writ petitions filed by them. The main contention urged by the consumers before the High Court was that sin....
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....ich terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law..........." 23. This Court further clarified that the terms in which the prayer in the stay application was made by the consumers did not determine the effect of the order issued by the Court in the writ petitions raising similar questions of law. The phraseology used in the prayer for interim orders could be materially different though in essence the relief may be similar. On a question of principle this Court held that the impugned order coming to an end upon dismissal of the substantive proceedings, it is the duty of the Court to put the parties in the same position as they would have occupied but for the interim orders of the Court for otherwise it would give rise to unjust results. This Court said: "..............It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position ....