Appellate Tribunal For Electricity
Ntpc Limited vs Central Electricity Regulatory ... on 12 November, 2014
Appeal No.97 of 2013 Batch
Before the Appellate Tribunal for Electricity
(Appellate Jurisdiction)
I.A. No. 56 of 2014 in Appeal No. 97 of 2013
I.A. No. 77 of 2014 in Appeal No. 120 of 2013
I.A. No. 75 of 2014 in Appeal No. 122 of 2013
I.A. No. 76 of 2014 in Appeal No. 134 of 2013
I.A. No. 21 of 2014 in Appeal No. 136 of 2013
I.A. No. 67 of 2014 inAppeal No. 141 of 2013
I.A. No. 74 of 2014 in Appeal No. 146 of 2013
I.A. No. 57 of 2014 in Appeal No. 193 of 2013
Dated :12th November, 2014
Present : Hon'ble Mr. Justice M. Karpaga Vinayagam, Chairperson
Hon'ble Mr. Rakesh Nath, Technical Member
I.A. No. 56 of 2014 in
Appeal No. 97 of 2013
In the matter of :
NTPC Limited
NTPC Bhawan, Scope Complex,
7, Institutional Area, Lodhi Road,
New Delhi ... Appellant(s)
Versus
1. Central Electricity Regulatory Commission
3rd & 4th Floor, Chanderlok Building,
Page 1 of 35
Appeal No.97 of 2013 Batch
36, Janpath, New Delhi - 110001 & Anr.
...Respondent(s)
Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. Pradeep Misra Mr. Manoj Kr. Sharma Mr. Shashank Pandit for R.2 Mr. K.S. Dhingra for R.1 I.A. No. 77 of 2014 in Appeal No. 120 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. M.S. Ramalingam for R.1 Mr. Pradeep Misra Page 2 of 35 Appeal No.97 of 2013 Batch Mr. Manoj Kr. Sharma Mr. Shashank Pandit for R.10 Mr. Vaibhav Choudhary for R.20 Mr. R.B. Sharma for R.4, 5 & 18 I.A. No. 75 of 2014 in Appeal No. 122 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. M.S. Ramalingam for R.1 Mr. Pradeep Misra Mr. Manoj Kr. Sharma Mr. Shashank Pandit for R.2 Mr. Vaibhav Choudhary for R.6 Mr. R.B. Sharma for R.7 Page 3 of 35 Appeal No.97 of 2013 Batch Mr. Bipin Gupta Mr. S.K. Bansal for R.3 to 5 I.A. No. 76 of 2014 in Appeal No. 134 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. M.S. Ramalingam for R.1 Mr. Pradeep Misra Mr. Manoj Kr. Sharma Mr. Shashank Pandit for R.2 Mr. Vaibhav Choudhary for R.6 Mr. R.B. Sharma for R.7 Mr. Aashish Gupta Mr. Aditya Mukherjee for R.8 Mr. Alok Shankar for TPDDL Page 4 of 35 Appeal No.97 of 2013 Batch I.A. No. 21 of 2014 in Appeal No. 136 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. Pradeep Misra Mr. Manoj Kr. Sharma Mr. Shashank Pandit for R.2 Mr. Vaibhav Choudhary for R.6 Mr. R.B. Sharma for R.7 Mr. Alok Shankar for TPDDL Page 5 of 35 Appeal No.97 of 2013 Batch I.A. No. 67 of 2014 in Appeal No. 141 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. M.S. Ramalingam for R.1 Mr. Pradeep Misra Mr. Manoj Kr. Sharma Mr. Shashank Pandit for R.10 Mr. Vaibhav Choudhary for R.19 Mr. R.B. Sharma for R.4, 5 & 17 Mr. Alok Shankar for TPDDL Page 6 of 35 Appeal No.97 of 2013 Batch I.A. No. 74 of 2014 in Appeal No. 146 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. M.S. Ramalingam for R.1 Mr. Pradeep Misra Mr. Shashank Pandit for R.2 Mr. Vaibhav Choudhary for R.6 Mr. R.B. Sharma for R.7 Mr. Alok Shankar for TPDDL Page 7 of 35 Appeal No.97 of 2013 Batch I.A. No. 57 of 2014 in Appeal No. 193 of 2013 In the matter of :
NTPC Limited NTPC Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi ... Appellant(s) Versus
1. Central Electricity Regulatory Commission 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 & Ors.
...Respondent(s) Counsel for the Appellant(s) : Mr. M.G. Ramachandran Ms. Poorva Saigal Counsel for the Respondent(s): Mr. M.S. Ramalingam for R.1 Mr. Pradeep Misra Mr. Shashank Pandit for R.10 Mr. R.B. Sharma for R.4, 5 & 17 Mr. Alok Shankar for TPDDL Page 8 of 35 Appeal No.97 of 2013 Batch /O R D E R/ PER HON'BLE MR. JUSTICE M. KARPAGA VINAYAGAM, CHAIRPERSON NTPC Limited is the Applicant/Appellant herein. These Applications have been filed in the batch of these Appeals seeking for the amendment of the Memorandum of Appeals, which have already been filed.
1. The short facts of each of the Appeals are as follows:
APPEAL NO. 97 OF 2013
i) In this Appeal, the Central Commission determined the tariff of the NTPC by the Order dated 17.10.2012.
Aggrieved by the said Order on some aspects, NPTC filed a Review Petition before the Central Commission for review of the Order on two specific aspects. The Central Commission by the Order dated 15.03.2013 allowed the Review Application seeking for the Review of the Order Page 9 of 35 Appeal No.97 of 2013 Batch dated 17.10.2012 on both aspects on which the Review was sought for. The NTPC felt that since the Review had been allowed on both the aspects, the initial tariff Order passed on 17.10.2012 stood merged with the Order dated 15.03.2013. NTPC has filed the Appeal against the merged Order dated 15.03.2013 in Appeal No. 97 of 2013.
ii) During the pendency of the Appeal, this Tribunal in another Appeal No. 88 of 2013 dated 02.12.2013, which was filed by the NTPC, held that "the Appeal as against the Review Order is not maintainable even though the Review is allowed in respect of some of the issues." On that basis, the maintainability of this Appeal has been objected to by the Respondents, on the ground that the Appeal as against the Order, dated 15.03.2013, passed in the Review Petition is not maintainable.
iii) In view of the subsequent development, namely, the Judgment in Appeal No. 88 of 2013 dated 02.12.2013, the Page 10 of 35 Appeal No.97 of 2013 Batch NTPC decided to seek for amendment of the Memorandum of Appeal in Appeal No. 97 of 2013 seeking for the challenge to the Order dated 17.10.2012, the main tariff Order, in the place of the Order dated 15.03.2013 passed in the Review Petition No. 28 of 2012. This Application for amendment also stoutly opposed by the Respondents on various grounds.
APPEAL NO. 120 OF 2013
i) In this Appeal, the Applicant/Appellant in I.A. No. 77 of 2014, the NTPC, has filed this Application seeking for the amendment of the Appeal. In this case, the main tariff Order was passed on 15.06.2012 in Petition No. 228 of 2009.
ii) Aggrieved by the said Order on some of the tariff elements, NTPC had filed the Review Petition No. 23 of 2012 for review of the Order on two specific aspects. Page 11 of 35
Appeal No.97 of 2013 Batch The Central Commission decided the Review Petition and passed the Order dated 15.04.2013 allowing the Review Petition on one aspect and rejecting in respect of the other aspect.
iii) Aggrieved by the Order of the Central Commission dated 15.04.2013 passed in the Review Petition, the NTPC had filed this Appeal No. 120 of 2013 against the said Review Order dated 15.04.2013 thinking that the first Order dated 15.06.2012 got merged with Review Order dated 15.04.2013.
iv) While this Appeal is pending, this Tribunal in another Appeal No. 88 of 2013 rendered a Judgment dated 02.12.2013 holding that the Appeal in respect of some aspects, which are rejected in the Review Petition is not maintainable even though the Review is allowed in respect of other issues.
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Appeal No.97 of 2013 Batch
v) On the strength of this Judgment dated 02.12.2013, the Respondent filed the Counter to the Appeal challenging the maintainability of this Appeal. In view of this objection, and in the light of the subsequent development, namely the Judgment in Appeal No. 88 of 2013 passed by this Tribunal, the NTPC has decided to amend the Memorandum of Appeal and filed this Application seeking for the amendment with reference to the challenge to this decision of Central Commission dated 15.06.2012, the main Order, in the place of the Order, dated 15.04.2013 passed in the Review Petition. This Application is also opposed by the Respondents on various grounds.
APPEAL NO. 122 OF 2013
i) In this Appeal also, the NTPC has filed the Application for amendment in I.A. No. 75 of 2014. The main Order had been passed by the Central Commission Page 13 of 35 Appeal No.97 of 2013 Batch determining the tariff of the NTPC on 20.04.2013. Aggrieved by this Order, NTPC had filed a Review Petition on 12.06.2012 on three aspects. The Central Commission admitted the Review Petition. Ultimately, the Central Commission decided the Review Petition on 02.04.2013 by allowing the claims only in respect of two aspects.
ii) Aggrieved by the said Order of the Central Commission, NTPC filed this Appeal in Appeal No. 122 of 2013 as against the Review Order dated 02.04.2013, on the impression that the main Order dated 20.04.2012 was merged with the Review Order dated 02.04.2013.
iii) When this Appeal is pending, another Appeal No. 88 of 2013 was disposed of by this Tribunal on 02.12.2013 holding that the Appeal in respect of tariff aspects, which are rejected in the Review Petition are not Page 14 of 35 Appeal No.97 of 2013 Batch maintainable without filing the Appeal as against the main Order.
iv) This Appeal has been objected to by the Respondents on the strength of the Judgment rendered in Appeal No. 88 of 2013. In view of this subsequent development, namely, the Judgment in Appeal No. 88 of 2013 , the Applicant/Appellant has now filed this Application for amendment in I.A. No. 75 of 2014 in this Appeal seeking for the amendment for challenging the main Order dated 20.04.2012 instead of Review Order dated 02.04.2013. The Application is objected to by the Respondents on various grounds.
APPEAL NO. 134 OF 2013
i) In this Appeal, the Applicant in I.A. No. 76 of 2014 has filed an Application for amendment of the Appeal seeking for challenge to the main Order. In this matter, Page 15 of 35 Appeal No.97 of 2013 Batch the Central Commission determined the tariff in the Petition filed by the NTPC by the main Order dated 07.06.2012.
ii) Aggrieved by this Order, the NTPC has filed a Review in Petition No. 22 of 2012 on three aspects. The Central Commission by the Order dated 22.04.2013 allowed the review only on two aspects and did not incline to allow the third aspect. Ultimately, NTPC did not press the said issue as the said claim has been withdrawn. Thereupon, aggrieved by the Order passed in the Review Petition, NTPC filed this Appeal challenging the Review Order dated 22.04.2013 since it felt that initial tariff Order dated 07.06.2012 stood merged with the Order dated 22.04.2013.
iii) As mentioned above, during the pendency of this Appeal, this Tribunal rendered a Judgment in Appeal No. 88 of 2013 on 02.12.2013 holding that the Appeal Page 16 of 35 Appeal No.97 of 2013 Batch in respect of some of the tariff aspects, which are rejected in the Review Petition is not maintainable. On this basis, the Respondents filed the objection to the maintainability of this Appeal. Therefore, the Appellant decided to file the amendment Application and accordingly, filed this Application seeking for the amendment with reference to the challenge in the Appeal to the decision of the Central Commission to be amended as to the Order dated 07.06.2012 instead of the Review Order dated 22.04.2013. This Application is stoutly opposed by the Respondents on various grounds.
APPEAL NO. 136 OF 2013
i) In this Appeal, the NTPC has filed an Application for Amendment in I.A. No. 21 of 2014 seeking for the amendment of the prayer of the Appeal. In this matter, the Central Commission determined the tariff in the Page 17 of 35 Appeal No.97 of 2013 Batch Order passed on 14.06.2012 in the Petition filed by the NTPC.
ii) Aggrieved by the said Order, NTPC has filed a Review on two specific aspects. The Central Commission by the Order dated 01.05.2013 reviewed the Order on one aspect and modified the other aspect on which the review was sought for.
iii) Aggrieved by the Review Order dated 01.05.2013, the NTPC filed this Appeal in Appeal No. 136 of 2013 seeking for setting aside the Order dated 01.05.2013 on the impression that the main Order dated 14.06.2012 stood merged with the Review Order dated 01.05.2013.
iv) While this Appeal is pending, this Tribunal gave a Judgment in Appeal No. 88 of 2013 dated 02.12.2013 holding that the Appeal in respect of some of the aspects which are rejected in the Review Petition, is not Page 18 of 35 Appeal No.97 of 2013 Batch maintainable. On that basis, the maintainability of this Appeal had been opposed by the Respondents. Therefore, the Applicant/Appellant filed this amendment Petition seeking for the amendment with reference to the challenge in the Appeal to be amended as to the Order dated 14.06.2012 passed by the Central Commission in the place of the Order dated 01.05.2013 passed in the Review Petition. This Application is opposed by the Respondents on various grounds. APPEAL NO. 141 OF 2013
i) In this Appeal, the Appellant/Applicant has filed an Application in I.A. No. 67 of 2014 seeking for the amendment of the Appeal. In this matter, the main tariff Order has been passed in the Petition filed by NTPC on 23.05.2012 determining the tariff. Page 19 of 35
Appeal No.97 of 2013 Batch
ii) Aggrieved by the said Order, dated 23.05.2012, NTPC had filed the Review before the Central Commission on two specific issues. The Central Commission, ultimately, decided the Review Petition by the Order dated 03.05.2013 and modified the Order dated 23.05.2012 on some aspects. Then, the NTPC filed this Appeal No. 141 of 2013 seeking to challenge the Review Order dated 03.05.2013.
iii) As mentioned above, while this Appeal is pending, this Tribunal gave a Judgment in Appeal No. 88 of 2013 dated 02.12.2013 relating to the maintainability of the Appeal in respect of some of the aspects in tariff Order which are rejected in the Review Petition. In view of the above, the Respondents opposed the maintainability of the present Appeal on the basis of the ratio decided by this Tribunal in Appeal No. 88 of 2013. This subsequent development necessitated the Page 20 of 35 Appeal No.97 of 2013 Batch Applicant/Appellant to file this amendment Application seeking for amendment with reference to the challenge to the decision of the Central Commission to be amended as to the Order dated 23.05.2012, the main tariff Order, in the place of Order dated 03.05.2013 passed in the Review Petition. Again, the Respondents have opposed this Application on various grounds. APPEAL NO. 146 OF 2013
i) In this Appeal, NTPC has filed I.A. No. 74 of 2014 seeking for the amendment of this Appeal. The Central Commission, in this case, passed the tariff Order on 23.05.2012 on some of the tariff elements.
ii) NTPC had filed the Review Petition on 29.06.2012 in respect of one specific aspect. The Central Commission by the Order dated 29.04.2013 disposed Page 21 of 35 Appeal No.97 of 2013 Batch of the Review Petition holding that this aspect could be considered at the time of true up Petition.
iii) Aggrieved by the Review Order dated 29.04.2013, this Appeal has been filed.
iv) As mentioned above, during the pendency of this Appeal, this Tribunal in Appeal No. 88 of 2013 decided that the Appeal, in respect of some of the aspects which are rejected in the Review Petition, is not maintainable since the maintainability of the Appeal has been questioned by the Respondents on the strength of the Judgment in Appeal no. 88 of 2013. NTPC has now filed this amendment Application seeking for the amendment with reference to the challenge in the Appeal to the decision of Central Commission to be amended as to the Order dated 23.05.2012, the main Order instead of the Order dated 29.04.2013 passed in the Review Petition.
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Appeal No.97 of 2013 Batch
v) This Application is also opposed by the Respondents on various grounds.
APPEAL NO. 193 OF 2013
i) In this matter, the Applicant has filed I.A. No. 57 of 2014 seeking for the amendment. On the Petition filed by the NTPC, the Central Commission passed the main tariff Order on 14.06.2012.
ii) Aggrieved over this decision on some of the tariff elements, NTPC filed the Review Petition in respect of five specific aspects. The Central Commission ultimately by the Order dated 19.06.2013 decided the Review Petition filed by NTPC and modified the Order dated 14.06.2012 only on one aspect but rejected the review in respect of other aspects. Page 23 of 35
Appeal No.97 of 2013 Batch
iii) Aggrieved by this Order dated 19.06.2013 passed in the Review Petition, the Appellant has filed this Appeal No. 193 of 2013.
iv) During the pendency of this Appeal, as mentioned above, the Tribunal rendered a Judgment in Appeal No. 88 of 2013 rendering the ratio with reference to the maintainability of the Appeal as against the Review Order. In view of the objection raised by the Respondents with regard to the maintainability of this Appeal on the strength of the above Judgment, the Applicant/Appellant has now filed this Application seeking for the amendment with reference to the challenge to the decision of the Central Commission to be amended as to the Order dated 14.06.2012, the main Order, in the place of the Order dated 19.06.2013, the review Order. This Application is also opposed by the respondents on various grounds. Page 24 of 35
Appeal No.97 of 2013 Batch
2. Now let us go into the question as to whether the Applications seeking for the amendment with regard to the prayer in all these Appeals could be allowed or not in the light of the objections raised by the Respondents.
3. The learned Counsel for both the parties have cited the following Judgments to substantiate their respective submissions. The following are the authorities cited by the learned Counsel for the Appellant.
a) Tirumala Chetti Rajaram V. Tirumala Chetti Radha Krishnayya Chetty (1962 (2) SCR 452);
b) Rajesh Kumar Aggarwal and Others v. K.K. Modi and others (2006) 4 SCC 385;
c) Tirumala Chetti Rajaram V. Tirumalachetti Radhakrishnayya Chetty 1962 (2) SCR 452;
d) A.K. Gupta & Sons Ltd. V. Damodar Valley Corpn., (1966) 1 SCR 796 Page 25 of 35 Appeal No.97 of 2013 Batch
e) Pasupuleti Venkateswarlu V. Motor and General Traders, (1975) 1 SCC 770;
f) Anchor Health and Beauty Care Pvt Limited V. Kaushik & Ors. (AIR 2010 Delhi 62);
g) Navinchandra N. Kajithia V. State of Maharashtra & Ors. (2000) 7 SCC 640;
h) Sarkar on Code of Civil Procedure (11th Edition - 2006) at page 1088;
i) Nair Service Society Ltd. V. K.C. Alexander (1968) 3 SCR 163.
4. The Citations referred to by the learned Counsel for the Respondents in support of their contentions are as follows:
a) Ganesh Trading Co. V. Moji Ram (1978) 2 SCC 91;
b) Revajeetu Builders and Developers V. Narayanaswamy and Sons and Ors. (2009) 10 SCC 84;Page 26 of 35
Appeal No.97 of 2013 Batch
c) Pirgonda Hongonda Patil V. Kalgonda Shidgonda Patil & Ors. (AIR 1957 SC 363);
d) Gangaprasad Rajaram Brahman and Ors. V. Mt. Banaspati (AIR 1963 Nag 246);
e) Ram Ratan Sahu V. Mohant Sahu ((1907) 6 CLJ 74);
5. While deciding this question, we have to bear the principles laid down by various Courts as referred to above.
6. According to the Appellant, the amendment proposed would not change either the nature of the Appeal or otherwise adding new grounds or plea, as NTPC maintains the same grounds as contained in the Memorandum of Appeal. It is also contended by the Appellant that the nature of the amendment sought for is only formal in nature and does not cause any prejudice whatsoever to the Respondents.
7. On the contrary, the Respondents have objected to the maintainability of these Applications on various grounds Page 27 of 35 Appeal No.97 of 2013 Batch contending that the amendment Applications do not satisfy the requisite conditions under Order 6 Rule 17 of C.P.C. and there has been no change of circumstances or subsequent event which necessitated the filing of amendment Applications when especially NTPC is not a person aggrieved.
8. In the case of Ravajeetu Builders and Developers V. Narayanswami & Sons (2009) 10 SCC 84, the Hon'ble Supreme Court reviewed the case law on amendment of pleadings and laid down the basic principles which are to be taken into consideration while allowing or rejecting an application for amendment of plaint. Those principles are as under:
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.Page 28 of 35
Appeal No.97 of 2013 Batch
i) Whether the amendment sought is imperative for proper and effective adjudication of the case?
ii) Whether the application for amendment is bona fide or mala fide?
iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
v) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And
vi) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the Courts must not Page 29 of 35 Appeal No.97 of 2013 Batch refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
9. In the light of the guidelines and aspects referred to in the Judgments of the Hon'ble Supreme Court, we have to mainly consider whether the amendment so sought has become necessary for proper and effective adjudication of the Appeals, in view of the specific development when there is no mala fide on the part of the Applicant/Appellant to file these Applications.
10. At the outset, it shall be mentioned that the power of this Tribunal for amendment of the prayer at any stage cannot be questioned and has not been questioned. As a matter of fact, the well settled principle is that the Courts should not refuse bona fide legitimate, honest and necessary amendments. One of the tests would be whether any Page 30 of 35 Appeal No.97 of 2013 Batch prejudice will be caused to the other party by the reason of allowing the amendment.
11. On going through the Applications and reply, it is evident that there is no change in the Appellants Appeal except for change in the date of the Order challenged. We are not considering the merits of the matter and therefore, no prejudice would be caused to the Respondents as the Respondents are required to deal with the same only at the time of final disposal of the Appeals.
12. According to the Appellant, it bona fide believed that the main tariff Order stood merged with the Review Order passed by the Central Commission in view of the review being allowed in respect of aspects on which review was sought for and the Appeals would not be maintainable from the main Order and would be maintainable only from the Review Order since the main Order stood merged with the Review Order.
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Appeal No.97 of 2013 Batch
13. While these Appeals are pending, admittedly, the Judgment in Appeal No. 88 of 2013 has been rendered by this Tribunal with reference to the maintainability of the Appeal as against the Review Order. Admittedly, this is the subsequent development. In view of the same, the Applicant is necessitated to file these amendment Applications seeking for quashing of the main Order instead of Review Order. Therefore, this amendment has become necessary for proper and effective adjudication of the Appeals, in view of the position of law laid down by this Tribunal in Appeal No. 88 of 2013. According to the Appellant, they bona fide thought that these Appeals would be maintainable only against the Review Order and not against the main Order in the light of the merger. But this aspect has been decided by this Tribunal in Appeal No. 88 of 2013 which was rendered on 02.12.2013. Under those circumstances, these Applications have been filed seeking for the amendment. Page 32 of 35
Appeal No.97 of 2013 Batch
14. As a matter of fact, the Applicant/Appellant had filed the Review Petition before this Tribunal as against the Judgment in Appeal No. 88 of 2013. But ultimately, the Applicant withdrew the same with the permission of this Tribunal. It is also pointed out that the Appeal which has been filed by the Applicant before the Hon'ble Supreme Court against the Judgment in Appeal No. 88 of 2013 also was withdrawn. Thereafter, the Applicant/Appellant had filed a fresh Appeal being Appeal No. 48 of 2014 against the main Order along with the Application for condonation of delay in the light of the dismissal of Appeal No. 88 of 2013. This Appeal has been admitted after condoning the delay. So in that Appeal also, we have to consider the merits of the matter with reference to the main Order.
15. Admittedly, all these Appeals have been filed before the Judgment was pronounced in Appeal No. 88 of 2013 dated 02.12.2013. Therefore, no prejudice would be caused to the Page 33 of 35 Appeal No.97 of 2013 Batch Respondents by allowing the Applications for entertaining the Appeal as against the main Order.
16. As indicated above, in the present case, the amendment sought for, namely, substitution of the Order challenged, is necessary for deciding the controversy after the subsequent event, namely, the decision rendered in Appeal No. 88 of 2013 dated 02.12.2013. It is now well settled as per the law laid down by the Hon'ble Supreme Court, the amendment necessitated by subsequent event shall be allowed. As mentioned earlier, if there is no mala fide on the part of the Applicant in not filing the Appeal against the main Order which is absent in the present Appeals, this Tribunal feels that it becomes necessary to allow the Applications for amendment for proper and effective adjudication of Appeals. On the other hand, if these Applications are not allowed, we feel that there will be serious prejudice to the NTPC leading to injustice and besides would lead to multiple litigations. Page 34 of 35
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17. As indicated above, there will be no change to the nature and character of the Appeals. Therefore, we feel that it would be appropriate to allow these Applications for amendment. In view of the same, all the Applications for condonation of delay are to be allowed. Accordingly ordered.
18. The Appellant/Applicant is directed to file the amended Memo of Appeals duly signed and verified upon these Orders being passed.
19. Post the main Appeals for final disposal on 08.12.2014.
(Rakesh Nath) (Justice M. Karpaga Vinayagam)
Technical Member Chairperson
Dated:12th November, 2014
REPORTABLE/NON-REPORTABALE
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