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SUPREME COURT QUASHED THE JUDGEMENT OF HIGH COURT AND AWARDED THE EXTENSION OF TIME IN FILING THE WRITTEN STATEMENT.

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CASE NAME: ADITYA KHAITAN & ORS. VERSUS IL AND FS FINANCIAL SERVICES LIMITED

CASE NUMBER: CIVIL APPEAL NOS. 6411-6418 OF 2023

DATED ON: OCTOBER 03, 2023

QUORUM: HON’BLE JUSTICE J.K. MAHESHWARI & JUSTICE K.V. VISWANATHAN

INTRODUCTION:

The appeals challenge the High Court’s decision to dismiss applications for taking on record their written statements in a civil suit. The court ruled that the 30-day period for filing written statements had expired on 08.03.2020. The court also ruled in Sagufa Ahmed and Others Vs. Upper Assam Plywood Products Private Limited and Others (2021) 2 SCC 317, since the orders of this that the order dated 23.03.2020, effective from 15.03.2020, would not benefit the applicants/defendants since the limitation period had expired. The court also ruled that the court’s orders under Article 142 of the Constitution of India only extended the period of limitation, not the period up to which delay can be condoned.

FACTS OF THE CASE:

The plaintiff, IL and FS Financial Services Limited, filed a suit for recovery of money and consequential reliefs in C.S. No. 177 of 2019 against nine defendants. The 30-day period for filing written statements expired on 08.03.2020 and the condonable period of 90 days expired on 06.06.2020.

The appellants filed applications for the defendants on 20.01.2021, requesting an extension of the time for the defendants’ written statements. The reasons for this were the declaration of COVID-19 as a pandemic, the Government of India’s advisories, the Disaster Management Act, the lockdown imposed by the Government of West Bengal, and the closure of the answering applicant’s office.

The affidavits relied on the court’s order dated 23.03.2020 and 10.07.2020, which extended the period of limitation until further orders. The plaintiffs opposed these applications, arguing that the orders would not help since the limitation period had expired before 15.03.2020. The plaintiff relied on the judgment of 18.09.2020 in Sagufa Ahmed to support its contention. The High Court accepted the plaintiff’s stand but did not take the written statements on record.

LEGAL PROVISIONS:

CONSTITUTION OF INDIA

Article-142: Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.-

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

CODE OF CIVIL PROCEDURE

ORDER 5 RULE 1(1): Summons.— When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant. Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim

Order 8 Rule 1:Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

ORDER 8 RULE 10: Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

COMMERCIAL COURT ACT:

Section – 16: Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes-

(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

(3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.

ISSUES RAISED:

  • Whether the High Court was justified in rejecting the application for extension of time dated 20.01.2021 and in not taking the written statements on record.
  • Whether the appellants are allowed to file the written statement after the expiration the limited time period in the special circumstances or not.

CONTENTION OF APPELLANT:

Mr. Sanjoy Ghose, Senior Counsel for the appellants, used the judgment in Prakash Corporates vs. Dee Vee Projects Limited, (2022) 5 SCC 112, to argue that extraordinary measures are crucial in extraordinary circumstances. The court noted that orders of 23.03.2020, 06.05.2020, and 10.07.2020 were addressed in the same In re: Cognizance for Extension of Limitation. The court distinguished Sagufa Ahmed’s case (supra) in paras 28.1, 28.2 and 33.4 of Prakash Corporates (supra), stating that the period envisaged in the order dated 23.09.2021 should be excluded from computing the period of limitation even for filing the written statement. The court ruled that the decision in Sagufa Ahmed is irrelevant to the present case, as the extended period expired on 06.06.2020.

CONTENTION OF RESPONDENT:

Mr. Sahil Tagotra, learned Counsel for the Respondent reiterated the findings of the High Court and submitted that the applicants have forfeited their right to file the written statements and the hon’ble High Court justified in rejecting the application for extension of time dated 20.01.2021 and not taking the written statements on record.

COURT’S ANALYSIS:

The Supreme Court has extended the deadlines for statutes of limitations in cases related to the pandemic. The court took suo motu cognizance and issued orders under Article 142 of the Constitution of India, protecting parties’ rights and ensuring their remedies and defenses were not barred. The orders of 23.03.2020 and 08.03.2021 were issued in a case involving Sagufa Ahmed (supra), which extended the limitation prescribed under the Arbitration & Conciliation Act, 1996 and Section 138 of the Negotiable Instruments Act, 1881 until further orders. The court also extended the period between 15.03.2020 and the lifting of lockdown in the jurisdictional area.

The Supreme Court of India has issued directions to address the challenges faced by litigants during the COVID-19 pandemic. The order dated 08.03.2021 extended the period of limitation prescribed under general law or special laws, with effect from 15.03.2020 until further orders. The court believes that the order dated 15.03.2020 has served its purpose and should come to an end.

The court has also excluded the period from 15.03.2020 to 14.03.2021, allowing the balance period of limitation remaining as of 15.03.2020 to become available with effect from 15.03.2021. The period from 15.03.2020 to 14.03.2021 will also be excluded from computing periods prescribed under various laws. The government is also required to amend guidelines for containment zones, allowing for medical emergencies, essential goods and services, time-bound applications, and educational and job-related requirements.

The Court has directed that the period from 15.03.2020 to 14.03.2021 will be excluded from computing the period prescribed under various laws, including the Arbitration and Conciliation Act, 1996, Commercial Courts Act, 2015, and Negotiable Instruments Act, 1881. This decision has a significant impact on the current controversy, as it excludes the period for computing outer limits within which the court or tribunal can condone delay.

The Court in Prakash Corporates (supra) also noted that the order of 08.03.2021 and subsequent orders by a Bench of three Hon’ble Judges were not available for the Bench which decided Sagufa Ahmed’s case. The outer limit within which the court or tribunal can condone delay is 120 days from the date of summons.

JUDGEMENT:

As has been set out hereinabove, summons was served on 07.02.2020, but the 30 days period expired on 08.03.2020 and the outer limit of 120 days expired on 06.06.2020. The applicants filed for written statements and extension of time on 20.01.2021, and the High Court’s judgment needs to be set aside. The principle underlying the court’s orders dated 08.03.2021, 27.04.2021, and 23.09.2021, in In Re: Cognizance for Extension of Limitation would benefit the applicants-defendants.

The Appeals are allowed, and the written statements filed on 20.01.2021, are directed to be taken on record. The suit will proceed with the appeals, and the appeal stands allowed with no order as to costs.

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Click here to view the full judgement: ADITYA KHAITAN & ORS. VERSUS IL AND FS FINANCIAL SERVICES LIMITED

JUDGEMENT REVIEWED BY: ABHISHEK SINGH

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SUPREME COURT UPHELD THE JUDGEMENT OF HIGH COURT IN CONVICTING THE APPELLANT UNDER SECTION – 302 OF IPC.

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CASE NAME: NANHE  VERSUS STATE OF U.P.

CASE NUMBER: CRIMINAL APPEAL NO. 2791OF 2023.

DATED ON: NOVEMBER 21, 2023

QUORUM: HON’BLE JUSTICE ABHAY S. OKA & JUSTICE PANKAJ MITHAL

FACTS OF THE CASE:

On 30.05.2007, an incident occurred in a market area, resulting in injuries and a death of Mahendra Hussain, son of Mohd. Ali. Two cases were registered against the accused, Nanhe, under Section 304 and 308 IPC and Section 25 of the Arms Act, 1959. Both cases were tried as Sessions Trial Nos. 1097 of 2007 and 1212 of 2007 by Special Judge, S.C./S.T.(P.A.) Act,1989. The trial court found Nanhe guilty of Section 302 IPC and sentenced him to life imprisonment with a fine of Rs.5000/-.

The High Court affirmed the conviction and sentencing of the accused in criminal appeal No.4474 of 2010, which was filed by the accused in both cases. The accused has appealed against the High Court’s judgment and order through this appeal, highlighting the single appeal filed by the accused against his conviction.

ISSUES RAISED:

  • Whether the said offence is liable to be reduced to culpable homicide not amounting to murder falling under second part of section 304 IPC.
  • Whether the offence committed in the state of intoxication can be taken into consideration for convicting the same .
  • Whether the known level of intoxication can be determined factor in convicting the accused.

LEGAL PROVISIONS:

INDIAN PENAL CODE

  • Section-86: Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

  • Section-301: Culpable homicide by causing death of person other than person whose death was intended. – If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender of the person whose death he intended or knew himself to be likely to cause.

  • Section-302: Punishment for murder – Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

  • Section-304: Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
  • Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

CONTENTION OF APPELLANT:

The learned counsel for appellant argues that the deceased’s death was accidental, not intentional. The appellant was heavily intoxicated and unaware of his actions. The incident occurred on 30.05.2007 when Mohd. Ali, his son, and his son, Saddam Hussain, argued. Sant Ram, Mahendra’s brother, intervened and asked Nanhe to leave. Nanhe fired a shot, piercing Mahendra’s neck and killing him. Saddam was taken to a hospital where he died.

CONTENTION OF RESPONDENT:

The counsel for the respondent argues that the action of the Nanhe (appellant) which inflicted to the death of Saddam Hussain was intentional and not accidental. The appellant was  arguing with Mahendra and then, the Sant Ram intervened and asked appellant to leave the place. After walking 15 -20 steps he moved back and fired with his country made pistol   in the state of intoxication, which shows the clear intention of the appellant to murder.

COURT’S ANALYSIS:

Saddam Hussain died from a firearm shot received in his neck, fired from a country-made pistol owned by appellant Nanhe. The weapon and cartridges were recovered from him. The trial court and High Court concluded that Nanhe is guilty of an offense under Section 302 IPC. The question is whether the offense can be reduced to culpable homicide, not murder, under Section 304 IPC, given Nanhe’s intention to settle his score with Mahendra and the impact of his intoxication at the time of the incident.

The appellant argued that he had no intention to kill the deceased and was accidentally killed, despite firing a shot on Mahendra, a person he had a quarrel with earlier. Section 301 of the Indian Penal Code (IPC) is relevant, as it embodies the doctrine of transfer of malice or transmigration of motive. The court in Shankarlal Kacharabhai & Ors Vs. The State Of Gujarat, AIR 1965 SC 1260 stated that to invoke Section 301, an offender must not have any intention to cause the death or knowledge of the potential harm.

In Rajbir Singh vs. State of U.P. and Anr., (2006) 4 SCC 51, the court ruled that the High Court’s decision to set aside a Special Judge’s order based on the fact that the shooting was not aimed at the victim and he was accidently injured was in ignorance of Section 301 IPC. In Jagpal Singh Vs. State Of Punjab, AIR 1991 SC 982, the court ruled that the accused was punishable under Section 302 IPC (simplicitor) under the ‘Doctrine of Transfer of Malice or Transmigration of Motive’ under Section 301 IPC.

The appellant is found guilty of culpable homicide under section 302 IPC, based on the doctrine of transfer of malice or transmigration of motive. The offence was committed by a person under intoxication and incapable of understanding the nature of their act. The court ruled in Basdev Vs. State Of Pepsu, AIR 1956 SC 488, that if no evidence shows an accused’s incapacity to understand their actions due to intoxication, the killing would be an offence of murder.

The incident occurred due to a quarrel between the appellant and Mahendra, with which Saddam was killed. Hussain had no connection to the firing, but Saddam was killed by accident. The appellant may have accidentally killed Saddam intoxicated, but there is no evidence to prove he was incapable of knowing the nature of his act or that it was dangerous enough to cause death. Therefore, Section 86 IPC would not apply and Hussain would not be entitled to a reduction of his sentence.

JUDGEMENT:

In view of the aforesaid facts and circumstances, we find no illegality in the impugned judgment and order of the High Court in confirming the conviction and punishing the appellant under Section 302 IPC.

The appeal is devoid of merit and is accordingly dismissed with no order as to cost. The appellant can apply for remission under the current state policy, which the State is expected to consider on its merits promptly.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Click here to view the full judgement: NANHE VERSUS STATE OF U.P.

JUDGEMENT REVIEWED BY: ABHISHEK SINGH

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CONCERNS REGARDING THE MINISTRY OF HOME AFFAIRS IN COMPLIANCE WITH BNSS, THE SOP FOR AUDIO-VIDEO RECORDING AT CRIME SCENES.

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Under the new criminal procedure legislation, known as Bharatiya Nagarik Suraksha Sanhita (BNSS), the Ministry of Home Affairs has released a Standard of Procedure for the audio and video recording of crime scenes as suggested guidelines.

To meet their immediate need for a handholding document, field practitioners participated in extensive brainstorming sessions that resulted in the preparation of the SOP. In order to guarantee the admission of crime scene photos and videos in a court of law, it serves as a guideline for the functional and operational aspects of the field.

The technical elements, such as the contents, analysis, and photos obtained by forensic specialists, are only superficial and not thoroughly covered.

It has now been made clear that the SOP is a set of recommended guidelines that are shared for use by law enforcement and police units in states and central organizations. However, the states and central police organizations are free to expand upon this basic structure in accordance with their unique requirements and the need for special acts that are dependent on these procedural laws.

KEY HIGHLIGHTS OF THE SOP:

The two parts of the Standard Operating Procedure (SOP) are the Standing Operating Procedure for Videography in Investigative Compliance & Seizure of Electronic and Digital Devices Found as Part of Investigation and General Police Procedures for Videography.

  1. For the public to have faith in the police to accurately and truthfully document and preserve crime scenes, they need to be equipped with basic technology and the right training.

  1. By abiding by the general guidelines provided, state units and central police organizations will improve the environment of evidence gathering through audio-video recording.

  1. The investigating officer should follow a systematic procedure while entering the crime scene to ensure that no important evidence is overlooked.

  1. Independent witnesses, who could or might not be government representatives, will be present during the search. When conducting a search, police officers may also be mentioned as witnesses if no witnesses are present. The witnesses who are also known as Panch Witnesses are required to sign the seizure memo.

  1. Because they are admissible evidence, seizure memoranda pertaining to objects that were collected at the accused’s request should be properly drafted.

  1. For official criminal investigation purposes, only digital cameras and audio video recorders that have been approved and provided by the department may be utilized.

  1. There must be no breaks during the whole filming of the show. Additionally, it is mandatory for all members of the first responder or forensic teams to remain silent and refrain from talking during the videography process to prevent the defense from using it to undermine the integrity of the investigation. The same is anticipated of the in attendance witnesses.

  1. The officer in charge of the police station must provide the following: video recordings of crime scenes, records of searches and seizures, information relevant to cases that qualify for a formal complaint (FIR), and orders on the custody and disposal of property.

  1. Both the handler (or manager) and an expert must certify each audio-video recording made as part of procedural compliance, investigative compliance, and the seizure of pertinent digital evidence.

  1. As required by the New Criminal Laws, the states must provide for the additional needs of police stations regarding audio-video recording. These needs include a dedicated desktop for the Evidence Specialist, Data Manager, Information Assistant, and First Responders; a vehicle specifically designed to transport digital forensic experts and first responders to the crime scene; a room specifically designated for forensic teams and first responders; and storage facilities at data centers for parallel storage.

  1. Many central and state units have previously built an Android, iOS, or MS-based program that is backed by a web application. However, with the introduction of the New Criminal Laws, NCRB is now introducing a cloud-based audio/video recording application through “e-Sakshya” that will be integrated with CCTNS-2.0.

  1. The eSakshya Platform integration will be mandatory for states.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

WRITTEN BY: ABHISHEK SINGH

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SUPREME COURT UPHELD AND THE JUDGEMENT OF APPELLATE TRIBUNAL FOR ELECTRICITY AND SET ASIDE THE CIVIL APPEAL.

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CASE NAME: MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED VERSUS RATNAGIRI GAS AND POWER PRIVATE LIMITED & ORS.

CASE NUMBER: CIVIL APPEAL NO. 1922 OF 2023

DATED ON: NOVEMBER 09, 2023
QUORUM: HONOURABLE CIJ Dr. D.Y. CHANDRACHUD, JUSTICE P.B.         PARDIWALA & JUSTICE MANOJ MISHRA.

INTRODUCTION

The Appellate Tribunal for Electricity (APTEL) in New Delhi dismissed an appeal against an order from the Central Electricity Regulatory Commission (CERC) in 2013. The first respondent, Ratnagiri Gas And Power Private Limited, filed a petition against Maharashtra State Electricity Distribution Co. Ltd., seeking resolution of issues related to non-availability of domestic gas, alternate fuel contracts, and fixed charges. CERC held the appellant liable, which was upheld by APTEL. The court granted the appellant the liberty to move the court again if necessary. The first respondent filed an execution petition, seeking payment of Rs 5287.76 crores and Rs 1826 crores, in accordance with the APTEL order.

FACTS OF THE CASE

The first respondent, RGPPL, a joint venture of NTPC Ltd., Gas Authority of India Ltd, MSEB Holding Company, ICICI, IDBI, SBI, and Canara Bank, took over the assets of Dabhol Power Company Limited after its operations were closed down. The first respondent owns a gas-based generating station in Ratnagiri, Maharashtra, with 95% allocated to the State of Maharashtra and the rest to Goa, Daman, Diu, Dadra, and Nagar Haveli. The appellant, MSEDCL, entered into a Power Purchase Agreement with the first respondent in 2007 for 25 years. The first respondent received gas supply from RIL until September 2011, but a decline in supply was attributed to low-yielding KG-D6 gas fields. The issue was raised with the Central Government and placed before the Empowered Group of Ministers on 24 December.

The first respondent entered into a Gas Supply Agreement/Gas Transportation Agreement with GAIL to supply Recycled Liquid Natural Gas under spot cargo. The appellant, however, refused to schedule power at the agreed rates, claiming that the first respondent failed to obtain their approval before entering into the agreement. The appellant argued that the declaration of capacity on RLNG was unilateral and arbitrary, violating Clause 5.9 of the Power Purchase Agreement. The first respondent filed a petition under Section 79 of the Electricity Act 2003 to resolve the issue of non-payment of fixed charges, the reservations of beneficiaries to enter alternate contractual arrangements for fuel, and the revision of the NAPAF.

LEGAL PROVISIONS:

POWER PURCHASE AGREEMENT

Clause (4.3) Declared Capacity

“Primary Fuel for RGPPL is LNG/Natural gas and/or RLNG. Normally capacity of the station shall be declared on gas and/or RLNG for all three power blocks. However, if agreed by MSEDCL, RGPPL shall make arrangements of Liquid fuel(s) for the quantum required by MSEDCL. In such a case the capacity on liquid fuel shall also be taken into account for the purpose of Availability, Declared Capacity and PLF calculations till the time Liquid fuel(s) stock agreed/requisitioned by MSEDCL is available at site.”

Clause (5.9) Gas Supply Agreement (GSA)/ Gas Transportation Agreement (GTA)

The gas supply agreement for 1.5 MMTPA R-LNG up to September 2009 is in place, sourced through Petronet LNG Ltd and re-gasified at their Dahej terminal. Commercial implications of the GSA/GTA contract will be signed separately with MSEDCL. The total gas/LNG will be procured through short-term and long-term contracts through GAIL, under GoI’s direction. RGPPL must obtain MSEDCL’s approval on contracting terms and price before entering the contract.

ELECTICITY ACT, 2003

SECTION-79: FUNCTION OF CENTRAL COMMISSION

(1) The Central Commission shall discharge the following functions :–

The Act regulates the tariffs of generating companies owned or controlled by the Central Government, those with a composite scheme for electricity generation and sale in multiple states, and inter-state transmission of electricity. It determines tariffs for inter-state transmission, issues licenses for transmission licensees and electricity traders, adjudicates disputes involving generating companies or transmission licensees, levies fees for the Act, specifies Grid Codes and Standards, enforces quality, continuity, and reliability of service by licensees, sets trading margins in inter-state electricity trading, and discharges other functions assigned under the Act.

(2) The Central Commission shall advise the Central Government on all or any of the following matters :–

The Central Commission is responsible for formulating National Electricity Policy and tariff policy, promoting competition, efficiency, and economy in the electricity industry, promoting investment, and addressing other government-referred matters. It ensures transparency and is guided by the National Electricity Policy, National Electricity Plan, and tariff policy.

ISSUSES RAISED:

  • whether the CERC and APTEL were justified in affixing liability to pay fixed charges on the appellant.
  • Whether the dispute in the particular case primarily turns on the terms of the Power Purchase Agreement or not.

CERC ORDER DATED 30 JULY 2023 AND APTEL JUDGEMENT AND FINAL ORDER DATED 22 APRIL 2015.

The CERC allowed a petition and held the appellant liable to pay fixed capacity charges under the Power Purchase Agreement. It  ruled that the appellant’s decision not to schedule RLNG influenced variable charges, not fixed charges. Further, the appeal in APTEL was made and they directed that if the appellant wanted to not pay for RLNG, it must compensate the first respondent, as it is liable under Article 5.2 of the PPA. No prior consent was required for liability to arise. APTEL dismissed the appeal. The Civil Appeal against APTEL’s decision was initially disposed of by this Court. Since the appellant was not facing any punitive action for recovery, and the appellant was granted the liberty to approach the court when needed.  The present appeal is before the Supreme Court of India.

APPELLANT’S CONTENTION

The appellant challenged APTEL’s judgment and final order, arguing that the CERC divided Clause 4.3 and Clause 5.9 of the PPA into two separate categories, absolving the appellant of paying for declared capacity due to RLNG. The placement of the prior approval clause in clause 5.9 suggests it applies to both clause 5.2 and clause 5.3 energy charges. The decision to adopt RLNG has commercial implications, so the prior approval requirement in clause 5.9 is invoked. The compartmentalization of clauses 4.3 and 5.9 is flawed, and the plant availability factor would be less than 70%, reducing capacity charges in accordance with CERC Regulations 2009.

RESPONDENT’S CONTENTION:

The first Respondent urged that, The appellant established a generating station to meet their electricity needs. After the failure of M/s Enron International and M/s Dabhol Power Company, the station was revived and its assets transferred to RGPPL. The appellant held 13.51% shares in the first respondent. The capacity declaration and demand for charges are in accordance with Clauses 4.3 and 5.2 of the Power Purchase Agreement (PPA). The PPA is valid for 25 years and the appellant is bound by Clauses 6.6. and 6.7, which stipulate paying 95% of charges during a dispute.

COURT’S ANALYSIS:

TERMS OF PPA

The PPA outlines two types of tariff charges for MSEDCL: capacity charges and energy charges. The former are fixed and subject to revision by the Government of India or Maharashtra, while the latter are calculated using a formula. MSEDCL must schedule energy sending from RGPPL and obtain approval from CERC for provisional billing. The total gas requirements are procured through GAIL, with RGPPL obtaining approval before entering into a GSA/GTA.

The first respondent argues that an alternate arrangement with GAIL and capacity declarations based on RLNG was necessary due to a nationwide fuel shortage. The appellant argues that the unilateral decision to declare capacity based on RLNG violated the mandatory approval requirement under clause 5.9 of the PPA, exempting it from liability to pay fixed capacity charges.

FACTUAL CONTEXT AND THE INTENTION OF PARTIES TO THE CONTRACT

The first respondent was established due to the failure of M/s Enron International and M/s Dabhol Power Company to meet Maharashtra’s energy needs. The tariff requirements were determined to preserve the unit’s viability. The appellant’s liability for the former is actual delivery agnostic, as long as the declared capacity is made in terms of the PPA.

The appellant’s interpretation of the PPA contradicts the original purpose and intendment of the parties, as it implies that capacity charges can be avoided and made subject to the appellant’s consent. A deviation from the plain terms of the contract is warranted only when it serves business efficacy better. The appellant’s arguments would require reading in implied terms contrary to the contractual provisions, which is permissible only in a narrow set of circumstances.

JUDGEMENT:

In the present context, bearing in mind the background of the establishment of the first respondent, and the shortfall of domestic gas for reasons beyond the control of the first respondent, such a deviation from the plain terms is not merited and militates against business efficacy as it has a detrimental impact on the viability of the first respondent.

The execution proceedings pursuant to the above-mentioned execution petition before the APTEL be continued. The appeal is dismissed. There shall be no order as to costs.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

JUDGEMENT REVIEWED BY: ABHISHEK SINGH

Click here to view the full judgement: MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED VERSUS RATNAGIRI GAS AND POWER PRIVATE LIMITED & ORS.

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SUPREME COURT GIVES ACTIVIST MAHESH RAUT INTERIM BAIL IN THE BHIMA-KOREGAON CASE.

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Mahesh Raut, an activist and one of the defendants in the Bhima-Koregaon case, was recently granted interim release by the Supreme Court for two weeks so that he could attend rites when his grandmother passed away.

Raut was granted temporary bail by a vacation bench consisting of Justices Vikram Nath and SVN Bhatti from June 26 to July 10.The bench mandated Raut’s unconditional surrender on July 10. It further stated that the Special NIA court’s terms and conditions will apply to the interim bail.

“Taking into account the facts and circumstances, the length of Raut’s previous incarceration, and the nature of the request, we are inclined to give interim bail of two weeks to the applicant, which may begin on June 26 and expire on July 10. The NIA Special Court will specify the conditions of release. NIA may ask the trial court to set strict requirements. The judgement from the highest court said that the petitioner must surrender on July 10.

The 33-year-old Raut’s request for temporary release was rejected by the National Investigation Agency (NIA). Raut’s attorney informed the supreme court on the final day of the trial that he was pleading for an interim release so he could go to Gadchiroli to attend funeral rites following the passing of his grandmother.

The Bombay High Court’s September 21 ruling allowing Raut, who was detained in June 2018 and is now being held in judicial custody at the Taloja jail, bail was challenged by NIA, and the supreme court granted the stay. Prosecution claims that comments made during the gathering, which was reportedly sponsored by the CPI(M), a banned terror organisation, were provocative and inflammatory, and that this ultimately resulted in violence in Koregaon Bhima hamlet, close to Pune, in 2018.

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WRITTEN BY: ABHISHEK SINGH

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