TaxTMI 
TaxTMI 
2024 (3) TMI 1537
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....f appeals, in connection with which the present application has been taken out, being the distribution licensees of the State of Rajasthan as per the provisions of the 2003 Act. They shall, henceforth in this judgment, be collectively referred to as "Rajasthan Discoms". Rajasthan Urja Vikas Nigam Limited was the 4th appellant in the main set of appeals. It appears to have been formed by the Government of Rajasthan for the purpose of coordination among the aforesaid three Discoms, as also other distribution licensees of the State. 2. Through this miscellaneous application, the applicant seeks a direction upon the Rajasthan Discoms for making payment of Rs. 1376.35 crore towards Late Payment Surcharge ("LPS"). This claim has been raised by the applicant citing Article 8.3.5 of the Power Purchase Agreement dated 28.01.2010 ("PPA-2010") entered into between the Rajasthan Discoms and the applicant. The present application has been captioned as "APPLICATION FOR DIRECTIONS ON BEHALF OF THE RESPONDENT NO.1/APPLICANT (ADANI POWER RAJASTHAN LIMITED)" in the said appeals which stood disposed of by a common judgment of a three-Judge Bench of this Court delivered on 31.08.2020. Review p....
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....change in law" was valid and opined that the applicant was entitled to compensation for the loss caused to it because of change in law under a subsequent coal supply scheme, termed as the SHAKTI scheme, which failed to provide domestic coal linkage. The APTEL further found that the applicant would also be entitled for payment towards applicable carrying cost. The Rajasthan Discoms had appealed against the common decision of APTEL before this Court. The three-Judge Bench of this Court, by the judgement dated 31.08.2020, dismissed the appeals with the following observations and directions: - "66. Considering the facts of this case and keeping in view that the RERC and APTEL have given concurrent findings in favour of the respondent with regard to change in law, with which we also concur, we may now deal with the question of liability of appellants-Rajasthan Discoms with regard to late payment surcharge. In this regard, the following Articles 8.3.5 and 8.8 of PPA, which are relevant for the present purpose, are extracted hereunder: "8.3.5. In the event of delay in payment of a Monthly Bill by the Procurers beyond its Due Date, a Late Payment Surcharge shall be payabl....
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....filed by APRL in the year 2013 itself raising its claim on such basis. However, the appellants-Rajasthan Discoms did not allow the claim regarding change in law, because of which APRL was deprived of raising the bills with effect from the date of change in law in the year 2013. We are, thus, of the opinion that considering the totality of the facts of this case and in order to do complete justice and to reduce the liability of the appellants-Rajasthan Discoms, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the appellants-Rajasthan Discoms to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum. 68. We accordingly direct that the rate of interest/late payment surcharge would be at SBAR, not exceeding 9 per cent per annum, to be compounded annually, and the 2 per cent above the SBAR (as provided in Article 8.3.5 of PPA) would not be charged in the present case. 69. Before we part with the ca....
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....not now be reopened at this stage. It is, thus, submitted that since the actual landed cost of alternate coal/imported coal as was submitted by the petitioner has been duly certified by the auditors, which has not been disputed by the respondents, the payment, as claimed, ought to have been made and since the same has not been paid, the respondents are liable for contempt. The further contention of the learned Senior Counsel of the petitioner is that the claim of the respondents that they had paid certain amount towards energy charges regularly month by month, which included certain amount of price of alternate coal/imported coal charges cannot be accepted, as at that stage i.e. in the year 2013, the respondents had not accepted the claim of the petitioner with regard to "change in law", and the assertion now being made by the respondents that they had paid certain amount after partially accepting the "change in law" theory cannot be accepted, as this issue had never been raised by respondents in any proceedings earlier, as the respondents had, in fact, throughout contested that the petitioner is not entitled to the "change in law" benefit." 6. The allegations of non-compliance ....
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....1 crores deposited by the respondents in terms of the interim order dated 29.10.2018 (which, as per the petitioner, the balance payable amount would be Rs. 3048.63 crores) along with interest as per the applicable SBAR for the relevant years, which should not exceed 9% per annum (to be compounded annually), from the date the amount became due till the date of actual payment, within four weeks from today, failing which the respondents shall appear before this Court in person, on the next date, so as to enable this Court to frame charges." 7. The contempt petitions were subsequently directed to be closed by another Coordinate Bench of this Court and order to that effect was passed on 19.04.2022. In this order, it was, inter-alia, observed:- "With regard to the first question it may only be observed that by order dated 25.02.2022 passed in these contempt petitions, this court, in paragraph no. 9, has observed as under: "The further claim of late payment surcharge, amounting to Rs. 2477.70 crores, as per the petitioner, would be a subject matter which the petitioner, if so advised, can claim before the appropriate forum, as the same is not the subject in ....
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....efer to any clarification. We have referred to the substance of the reliefs prayed for in this application earlier in this judgment. 10. Order XII Rule 3 of the Supreme Court Rules, 2013 ("2013 Rules") framed in pursuance of Article 145 of the Constitution of India, stipulates:- "3. Subject to the provisions contained in Order XLVII of these rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission." There are, however, two chapters in the 2013 Rules which permit review of a judgment or order of this Court, being Order XLVII and XLVIII. The former Order, contained in Part IV of the 2013 Rules relates to "Review of a Judgment" and the latter relates to "Curative Petition". There is no other provision in the 2013 Rules, whereby a litigant can apply for modification of a judgment or an order of this Court in a matter which stands finally concluded. On rare occasions, a litigant may apply for clarification of an order if the same is ex-facie incompre....
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....s Court. Such an attempt is not permissible in a miscellaneous application. While Mr Mukul Rohatgi, learned Senior Counsel has relied upon the provisions of Order LV Rule 6 of the Supreme Court Rules, 2013, what is contemplated therein is a saving of the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII of the Supreme Court Rules, 2013. The miscellaneous application is an abuse of the process." The authorities which were cited in the said Judgment by the Coordinate Bench are the cases of State (UT of Delhi) -vs- Gurdip Singh Uban and Others [(2000) 7 SCC 296], Sone Lal and Others -vs- State of Uttar Pradesh [(1982) 2 SCC 398], Ram Chandra Singh -vs- Savitri Devi and Others [(2004 12 SCC 713], Common Cause -vs- Union of India and Others [(2004) 5 SCC 222], Zahira Habibullah Sheikh and Another -vs- State of Gujarat and Others [(2004) 5 SCC 353], P.N. Eswara Iyer and Others -vs- Registrar, Supreme Court of India [(1980) 4 SCC 680], Suthendraraja alias Suthenthira Raja ....
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....e next order, on which Dr. Singhvi placed reliance, was passed on 04.05.2023 in the case of Uttar Haryana Bijli Vitran Nigam Ltd. & Anr. -vs- Adani Power (Mundra) Limited [MA (D) No. 18461 of 2023 in Civil Appeal No. 2908 of 2022]. The substantive part of the order is contained in Paragraph 2 thereof and this paragraph reads:- "2. As agreed by the learned counsel for the parties, the words "As per the details given in the PPA, the mode of transportation is through railway" shown in paragraph 32 of the judgment dated 20.04.2023 passed in C.A. No. 2908 of 2022 be read as "As per the details given in the FSA, the mode of transportation is through railway". But this order appears to be in the nature of correcting an error which was clerical in nature and the Code of Civil Procedure, 1908 ("the Code") itself provides for such correction under Section 152 thereof, as also Order XII Rule 3 of the 2013 Rules. 16. The third order relied on by Dr. Singhvi was passed on 09.12.2022 in the case of Kalpataru Properties Pvt. Ltd. -vs- Indiabulls Housing Finance Ltd. [MA No. 2064 of 2022 in Civil Appeal No. 7050 of 2022]. The applicant therein had approached....
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.... Appeal No. 5041 of 2021]. The Coordinate Bench of this Court granted extension of time, as sought by the applicant therein, in effecting demolition of two building towers which were approved by the Court while disposing of the civil appeal. The power to extend time beyond that fixed by a Court on a legitimate ground is incorporated in Section 148 of the Code. If the time to do something requires to be extended, it would be within the inherent jurisdiction of this Court to go beyond the maximum period of 30 days prescribed in the aforesaid Section, after sufficient reason is shown. Section 112 of the Code itself provides that nothing contained in the Code shall affect the inherent powers of the Supreme Court under Article 136 or any other provision of the Constitution. 18. The fifth order referred to by the applicant was passed on 23.07.2021 in the case of Union of India -vs- Association of Unified Telecom Service Providers of India and Ors. [MA No. 83 of 2021 in MA (D) No. 9887 of 2020 in Civil Appeal No. 6328-6399 of 2015]. A miscellaneous application had been filed for modification of the content of judgment dated 1st September 2020 passed in M.A. (D) No.&....
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.... judgment of a three-Judge Bench of this Court on 31.08.2020 through a course beyond that specified in the statute. This is not an application for correcting any clerical or arithmetical error. Neither it is an application for extension of time. A post disposal application for modification and clarification of the order of disposal shall lie only in rare cases, where the order passed by this Court is executory in nature and the directions of the Court may become impossible to be implemented because of subsequent events or developments. The factual background of this Application does not fit into that description. 21. Our attention was drawn to an order passed on 14.12.2022 in which a Coordinate Bench was of the prima facie opinion that the applicant may be entitled to LPS as per Article 8.3.5 of PPA-2010, at least from 31.08.2020, till the actual payment was made pursuant to the order passed by this Court in the contempt proceedings. This prima facie view was expressed in the course of hearing of the present application only. We have examined the issue in greater detail. As we have already indicated, the applicant, after the three-Judge Bench decision was delivered, did not file....