Madras High Court
Arkay Energy (Rameswaram) Ltd vs Mr. Rajesh Lakhoni
Author: M.Dhandapani
Bench: M.Dhandapani
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Cont Ptn 950/22 – RA 123/22
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
24.08.2022 07.09.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
CONTEMPT PETITION NO.950 OF 2022
REVIEW APPLICATION NO.123 OF 2022
AND
W.M.P. NO.18638 OF 2022
SUB APPLICATION NO.360 OF 2022
CONT. PTN. NO.950 OF 2022
Arkay Energy (Rameswaram) Ltd.
Rep. by its Authorised Signatory
Mr. T.S.Das, No.20, Old No.129
Chamiers Road, Nandanam
Chennai 600 035. .. Petitioner
- Vs -
Mr. Rajesh Lakhoni, I.A.S.
Chairman-cum-Managing Director
Tamil Nadu Generation & Distribution
Co. Ltd. (TANGEDCO)
No.144, Anna Salai, Chennai 600 002. .. Respondent
REV. APPLN. NO. 123 OF 2002
Tamil Nadu Generation & Distribution
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Cont Ptn 950/22 – RA 123/22
Co. Ltd. (TANGEDCO), rep. by its
Chairman-cum-Managing Director
No.144, Anna Salai, Chennai 600 002. .. Petitioner
- Vs -
Arkay Energy (Rameswaram) Ltd.
Rep. by its Authorised Signatory
Mr. T.S.Das, No.20, Old No.129
Chamiers Road, Nandanam
Chennai 600 035. .. Respondent
Contempt Petition filed under Section 11 of the Contempt of Courts Act to
punish the respondent for willful disobedience of the order of this Hon’ble Court
dated 24.01.2022 in W.P. No.18122 of 2020.
Review Application filed under Order 47 Rule 1 r/w Section 114 of the
Code of Civil Procedure to review the order dated 24.1.2022 made in W.P.
No.18122 of 2020.
For Petitioner : Mr.Anirudh Krishnan in
Cont. Ptn. No.950/2022
Mr. J.Ravindran, AAG, assisted
By Mr.L.Jai Venkatesh in RA 123/2022
For Respondents : Mr.Anirudh Krishnan in RA 123/2022
Mr. J.Ravindran, AAG, assisted
By Mr.L.Jai Venkatesh in Cont Ptn 950/2022
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Cont Ptn 950/22 – RA 123/22
COMMON ORDER
While contempt petition has been filed alleging disobedience of the order passed by this Court in W.P. No.18122/20 dated 24.1.22, pending the contempt, review application has been filed for review of the aforesaid order passed by this Court.
2. This Court, vide order dated 24.1.2022 had directed the respondent to pay the balance amount of 50% out of the total dues of Rs.5,02,95,220/- due and payable to the petitioner within a period of four weeks from the date of receipt of a copy of the order in the writ petition on the submission of the learned standing counsel that the balance admitted dues will be released in favour of the petitioner within the period of four weeks. However, inspite of the said order having been issued on 14.3.2022, till date the balance dues have not been paid, which has prompted the petitioner to come before this Court.
3. As stated above pending the aforesaid contempt, review application has been moved by the respondent/TANGEDCO to review the order passed by this Court on the following grounds :-
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i) That there is no provision for excess energy injection and merely because the petitioner had produce excess energy and injected the units, which resulted in the said amount due, the tariff of Rs.6.70 per unit cannot be claimed as the said tariff was only with regard to 400 MW and any excess unit would be payable only at Rs.4.08.
ii) That the review petitioner had failed to file counter in the writ petition due to which payment of excess for the energy injection was not put on record before this Court. Since the review petitioner had not admitted that they were ready and willing to purchase the excess energy at the rate specified in letter of award, the review petitioner cannot be made to pay the said amount.
iii) That the remedy available to the writ petitioner is only to approach the Tamil Nadu Electricity Regulatory Commission u/s 86 (1) of the Electricity Act, 2003 with regard to payment of excess units generated and supplied to the review petitioner and a writ petition is not maintainable.
iv) That the review petitioner has paid the entire amount due to the petitioner with regard to the admitted purchase on the basis of the letter of award but with regard to the excess power purchase by the review petitioner, which is outside the scope of the letter of award and, therefore, the price at Rs.6.70 per unit claimed by the petitioner is beyond the 4 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 scope of the letter of award and, therefore, the review petitioner is not liable to pay the same.
v) That the order of TNERC with regard to the purchase rate of power from captive generating plants is only between Rs.2.10 and Rs.3.45 and, therefore, the purchase price at Rs.6.70 is uneconomical and the said rate cannot be paid by the review petitioner.
vi) That similar captive generating plant, when approached TNERC for payment of rate for the excess power supplied at Rs.6.35 per unit, the same was dismissed by TNERC as it is unviable for the review applicant to purchase power at that rate.
vii) That similar captive generating plants had sold the excess power generated at Rs.4.08 and Rs.3.60 respectively and, therefore, the petitioner cannot claim excess rate of Rs.6.70 for the excess power given to the review petitioner.
4. Learned Addl. Advocate General appearing for the review petitioner submitted that the letter of award clearly speaks about the rate at which the electricity would be purchased from the captive generating units like the petitioner and that the amount agreed upon on the basis of the order of TNERC is Rs.6.70 only in respect of the agreed purchase and any electricity, which is 5 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 injected by the captive generating units in excess of the agreed purchase would be payable only the rate notified by TNERC and not only the price agreed upon by the parties.
5. It is the further submission of the learned Addl. Advocate General that generators, similar to the petitioner were paid at rates below the agreed tariff rate and the petitioner would also be entitled to receive only the rate which has been paid to the other captive generators and there can be no discrimination between two captive generators.
6. It is the further submission of the learned Addl. Advocate General that the non-filing of counter in the writ petition had resulted in not placing the aforesaid facts before the Court, which are disputed in nature and, therefore, necessarily, this Court cannot adjudicate on the disputed question of facts and it has to be adjudicated only by TNERC.
7. It is the further submission of the learned Addl. Advocate General that price for the excess electricity purchased could be fixed only at Rs.3.60 and 6 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 Rs.4.08 for the period May, 2009 and June, 2009 and it cannot be on the basis of the agreed rate of Rs.6.70 as per the letter of award as the said price is only for the agreed purchase units and not for the excess units generated by the petitioner. Only in the above stated scenario, the payment has not been made to the petitioner, as it was disputed and the aforesaid facts having not been brought to the knowledge of this Court, necessarily the order passed by this Court in the review petition requires to be reviewed.
8. Per contra, learned counsel appearing for the writ petitioner submitted that all along the review petitioner has not disputed its duty to discharge the amount due to the petitioner at the rate of Rs.6.70 per unit. Even before this Court on the earlier occasion, when this case was heard on 16.12.2020, the review petitioner did not dispute its obligation to pay the agreed amount. It is the further submission of the learned counsel that, in fact, the review petitioner had even called upon the petitioner to furnish the break-up details with regard to the amount claimed, which was duly furnished by the petitioner and the condition imposed by the review petitioner in letter dated 13.02.2020 with regard to the petitioner withdrawing all the pending cases was also duly complied 7 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 with and this clearly shows that the review petitioner, all along, has not raised any dispute with regard to the payment of price at Rs.6.70 for the excess units supplied by the petitioner. Even at the time when the writ petition was finally disposed by this Court on 24.01.2022, the review petitioner has not raised any dispute with regard to the amount due and payable by the review petitioner. That being the admitted case, by means of a review, the review petitioner cannot seek to reopen the case and argue afresh, as the scope of review is only limited to the extent of correcting factual materials, which were not considered by the Court, but which was available before the Court. However, even the case of the review petitioner is that the grounds raised presently were not placed before this Court while the matter was contested and that being the case, the review petitioner is estopped from canvassing all the plea in the review application.
9. It is the further submission of the learned counsel that even the appeal filed by the review petitioner was withdrawn with liberty to file a review petition. However, in the said order, no liberty was given to the review petitioner to raise any fresh grounds and that being the case, raising fresh grounds which were not 8 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 before the Court when the writ petition was decided cannot be considered by this Court under the guise of review.
10. It is the further submission of the learned counsel that even the letter of the review petitioner intimating the petitioner about the purchase of excess 10% of the generation does not put any fetters on the price, but only stipulates that the price will be as per the agreed PPA or rates notified by TNERC. It is the further submission of the learned counsel that TNERC has approved the rate per unit at Rs.6.70 per unit in its order in PPAP No.1 of 2009, the review petitioner is bound by the said order and cannot go back and claim that the price has not been agreed upon between the petitioner and the review petitioner.
11. It is the further submission of the learned counsel that the review petitioner has consented to the payment of the amount and had, in fact, released part payment towards the same, it is not open to the review petitioner to contest a consent order and a review is not permissible against a consent order. In the absence any dispute being raised by the review petitioner till date, after passing of the final order, the review petitioner, under the guise of review, cannot raise 9 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 any dispute with regard to the price agreed. It is the further submission of the learned counsel that once the review petitioner has admitted the bills without raising any dispute and also agreed to release the payments due to the petitioner on the petitioner withdrawing all the pending cases, it is not open to the review petitioner to come before this Court by way of review and for the very first time claim that there exists a dispute which cannot be gone into under Article 226 of the Constitution. The act of the review petitioner is nothing but an afterthought specifically aimed at preventing the petitioner from realising its due share towards the electricity supplied to the review petitioner. Accordingly, the petitioner prays for dismissal of the review petition and also for a direction on the review petitioner to pay the balance dues payable within the time frame and also to punish the review petitioner for wilful disobedience of the orders of this Court.
12. This Court gave its anxious consideration to the submissions raised by the learned counsel appearing on either side and perused the materials available on record.
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13. It is settled law that the scope of entertaining a review application is only to the limited extent of correcting the factual errors that are borne out by record and under the guise of review, the party cannot be permitted to reagitate the issue by raising any new grounds. It is trite that review is not rehearing of the petition all over again. The scope of interference in an application for review is limited. Review is not a routine procedure and only if material error is manifest on the face of the order resulting in miscarriage of justice, can the court resort to review of its order. Therefore, it is incumbent upon this Court to find out as to whether any material error manifest on the face of the record has crept in the order, which requires to be reviewed by this Court.
14. A perusal of the records reveal that this Court, vide its order dated 16.12.2020, while recorded the facts, has also recorded the admitted position of the parties to the lis which is quoted hereunder :-
“2.It is seen from the records that the petitioner was the successful bidder in a tender that was notified by the respondent in the year 2009. The case of the petitioner is that the respondent is due and payable a total sum of Rs.5,02,94,220/- to the petitioner. When the petitioner was requesting for this payment, the respondent directed the petitioner to furnish the split up of 11 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 this amount and also asked for further details and the petitioner had also provided all the details by letter dated 18.09.2018. It is seen from the records that the respondent by letter dated 06.02.2020 had acknowledged the pending dues to the tune of Rs.5.02 Crores. It is seen from this letter that the respondent had directed the petitioner to withdraw the court cases and submit a proof of the same. The petitioner by letter dated 13.02.2020 informed the withdrawal of the cases and also submitted proof of the same along with this letter. The grievance of the petitioner is that inspite of receipt of this letter and the proof of withdrawal of the pending cases, the respondent for no reasons is http://www.judis.nic.in delaying the release of money to the petitioner to the tune of Rs.5,02,94,220/-. Aggrieved by the same, the present Writ Petition has been filed before this Court.” (Emphasis Supplied)
15. When the matter was taken up on 24.01.2022, it was reported by the parties that in compliance of the aforesaid directions, 50% of the admitted amount has been paid by the respondents and balance 50% of the amount is yet to be paid. This Court, on 24.1.2022, while recording the submission of the learned standing counsel that the balance admitted amount of dues would be released within a period of four weeks, passed the following order :-12
https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 “3. Learned counsel for the petitioner submits that this Court vide its order dated 16.12.2020 had directed the respondents to release 50% of the total dues of Rs.5,02,95,220/-, pursuant to which the respondents have released 50% of the dues in favour of the petitioner. However, the balance amount is yet to be released by the respondents. Hence, this Court may direct the respondents to release the balance 50% of the dues in favour of the petitioner within the time stipulated by this Court.
4. Learned Standing counsel for the respondents submits that the balance admitted amount of dues will be released in favour the petitioner within a period of four weeks.” (Emphasis Supplied)
16. From the above, it is clear that the learned standing counsel had undertaken that the balance admitted dues would be paid within four weeks. In this backdrop, the order dated 16.12.2020 reveals that the admitted amount is Rs.5,02,94,220/= of which 50% was already paid. Therefore, at the earliest point of time, i.e., even on 16.12.2020, no dispute was raised by the review petitioner with regard to the bills submitted by the petitioner. Further, the order also reveals that upon the petitioner withdrawing all the pending cases against the review petitioner, the review petitioner was ready and willing to settle the bills 13 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 due to the petitioner. The said stand was carried through by the review petitioner when this Court dealt with the case on 24.1.2022 and, therefore, sought for four weeks time to pay the admitted balance dues.
17. It is to be pointed out that even the appeal taken up by the review petitioner, the review petitioner had withdrew the same with liberty to file the present review petition. However, the fact that liberty was granted to the review petitioner to file the review cannot be taken to be an order, which permitted the review petitioner to agitate the case afresh, as the scope of review, as stated above, is limited.
18. The contention of the review petitioner that the non-filing of the counter had resulted in the facts not being placed properly before this Court, which involved certain disputes and, therefore, the review ought to be entertained. However, it is to be pointed out that the Court had not precluded the review petitioner from filing the counter. It is to be pointed out that the initial order directing payment of 50% of the admitted amount was passed on 16.12.2020 and, thereafter, the next order with regard to compliance was passed 14 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 only on 24.1.2022. A year had flown by since the first order, but if really the dispute had existed, the review petitioner would definitely have filed its counter.
Yet when the matter was taken up on 24.1.2022, the review petitioner undertook to pay the admitted balance dues within the prescribed time. This clearly shows that the review petitioner was not disputing the amount raised by the petitioner.
19. It is further to be pointed out that the plea of remedy before the TNERC is being raised by the review petitioner for the first time in this review petition. At no point of time, the review petitioner has raised a plea that the remedy to the petitioner lies before the TNERC and not before this Court. Therefore, in such a backdrop, the plea now raised by the review petitioner is a fresh plea, which is impermissible in a review.
20. The review petitioner now seeks to contend that the price accepted is only for the admitted purchase and not for the excess purchase and price for the excess purchase could be only Rs.3.60 and Rs.4.08 as notified by TNERC and paid to other captive generating units. This plea, as aforesaid, is a also a new plea, 15 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 which cannot be permitted to be raised. However, the said plea gets defeated on its own on the basis of the materials available on record.
21. The Letter of Award dated 25.03.2009 of the review petitioner to the petitioner with regard to excess generation, wherein, the review petitioner has stated as under :-
“Refer the LOA awarded under ref cited, the Board has further approved the following against the tender No.3 dt. Dated 24.12.2008.
Any excess generation not exceeding 10% is identified and accounted on annual basis after taking into account the self consumption, CPP use and this short term sale to TNEB over and above the accepted quantum of the power, then the same shall be purchase at their PPA or TNERC notified rate.
It is informed that the above approval will be followed in the above LOA please.” (Emphasis Supplied)
22. In the above backdrop, PPAP No.1 of 2009, which was filed by the review petitioner before TNERC, the following order came to be passed by TNERC fixing the price per unit at Rs.6.70 per unit, after detailed discussion of the merits 16 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 of the issue raised therein. The relevant portion of the order of TNERC is quoted hereunder :-
“6. Conclusion In the final analysis the Commission approves the tariff of Rs.6.70 / unit with the advice to the licensee that they observe the provisions of the Electricity Act, 2003, scrupulously in future.” (Emphasis Supplied)
23. From the above communications, it is evident that the review petitioner was willing to purchase electricity at the rate notified by TNERC or at the PPA price vide its communication dated 25.3.09, extracted supra. That being the case, TNERC having notified the rate of purchase of excess electricity at Rs.6.70 per unit from the petitioner, the stand of the review petitioner that the approval for the above price of Rs.6.70 per unit will be followed in the Letter of Award would only go to show that the review petitioner had accepted the rate notified by TNERC and, therefore, is bound by the order of TNERC as also its communication to the petitioner.
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24. The contention of the review petitioner that similar captive generating plants were being paid at a far lesser rate and, therefore, the petitioner also cannot be paid at a higher rate, as it would be discriminative, cannot be accepted for the reason that different rates have been fixed by TNERC for the said captive generation plants and the petitioner and such being the case, the review petitioner cannot plead that a lower rate being fixed for similar captive generation plants alone would be applicable to the petitioner would be very much against its own communication dated 25.03.2009 in and by which it has agreed that the rate would be as per their PPA or TNERC notified rate. Therefore, at this point of time, the review petitioner cannot contend that the rate fixed is on the higher side, which has not been accepted by the review petitioner and such a contention is nothing but a valiant attempt on the part of the review petitioner to wriggle out of paying the admitted amount which the petitioner rightfully and lawfully claims.
25. As stated above, in a review, this Court cannot appreciate any fresh facts, which have not been placed before this Court. Only the errors, which are manifest on the face of record, can be gone into and corrected. However, as 18 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22 stated above, all the contentions raised on behalf of the review petitioner are fresh pleas, which have not been raised before this Court. Further, it is to be pointed out that the review petitioner has admitted the balance amount based on the bills furnished by the petitioner and had even paid 50% of the dues based on the said bills to the petitioner on the basis of the order of this Court dated 16.12.2020. That being the admitted position, after admitting the amount and also consenting to pay the same, the review petitioner cannot seek shelter under new pleas, more so, pleas, which do not have any bearing on the case, to seek review of the orders of this Court. Once the review petitioner has consented to the order passed by this Court, in effect it means that the review petitioner has admitted the dues and agreed to pay and, therefore, the review petitioner cannot turn back and claim that facts are disputed which renders the writ petition not maintainable before this Court.
26. For the reasons aforesaid, there are no merits in the review application and, accordingly, the same is dismissed. 19 https://www.mhc.tn.gov.in/judis ____________ Cont Ptn 950/22 – RA 123/22
27. In view of the aforesaid discussion, it is amply clear that the respondent/review petitioner has committed willful disobedience of the orders of this Court in not complying with the directions, which were given based on the undertaking of the review petitioner. However, to render substantial justice, keeping in mind the fact that an appeal was moved and upon withdrawal with liberty to file the present review, review was presented before this Court and the review was pending, this Court directs the respondent/review petitioner to comply with the order of this Court dated 24.1.2022 by paying the balance amount due to the petitioner within a period of six weeks from the date of receipt of a copy of this order.
28. List the contempt petition under the caption “For Reporting Compliance” on 19.10.2022.
07.09.2022
Index : Yes / No
Internet : Yes / No
GLN
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Cont Ptn 950/22 – RA 123/22
To
The Chairman-cum-Managing Director
Tamil Nadu Generation & Distribution
Co. Ltd. (TANGEDCO)
No.144, Anna Salai, Chennai 600 002.
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Cont Ptn 950/22 – RA 123/22
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
CONT. PTN. NO.950 OF 2022
AND
REV. APPLN. NO.123 OF 2022
Pronounced on
07.09.2022
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