Rajasthan High Court - Jaipur
Ultratech Cement Limited vs Rajasthan Rajya Vidyut Utpadan Nigam ... on 20 December, 2018
Bench: Mohammad Rafiq, Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 5596/2018
Ultratech Cement Limited, Having Its Registered Office At B-
Wing, Ahura Center, Second Floor, Mahakali Caves Road, Andheri
(East), Mumbai 400093 And Unit Office- Vikram Nagar, P.o. Khor,
District Neemuch 458470 (Madhya Pradesh), Through General
Manager, (Finance And Accounts) And Authorised Signatory Raj
Khetan.
----Appellant
Versus
Rajasthan Rajya Vidyut Utpadan Nigam Ltd., Registered Office-
Vidyut Bhawan, Janpath, Jyoti Nagar, Jaipur- 302005
(Rajasthan) Through- Chairman-Cum-Managing Director.
----Respondent
For Appellant(s) : Mr Sudhanshu Kasliwal, Sr. Counsel
with Ms. Suruchi Kasliwal
For Respondent(s) : Mr. RK Agarwal, Sr. Counsel with Mr.
Pranjul Chopra
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE ALOK SHARMA
Judgment
Date of Judgment :: December, 20th 2018
REPORTABLE
BY THE COURT :: (PER HON'BLE ALOK SHARMA, J.)
Under challenge in this Civil Misc. Appeal under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereafter 'the Act of 2015') is the order dated 2.11.2018 passed by the Commercial Court No.1 (District Level), Jaipur dismissing the (2 of 23) [CMA-5596/2018] plaintiff-appellant's (hereafter 'the plaintiff') application under Order 39 Rule 1 and 2 CPC filed with the suit for declaration and permanent injunction.
Necessary facts for the disposal of this appeal are that the plaintiff and the defendant-respondent (hereafter 'the defendant') entered into a MOU dated 9.9.2008 in the first instance for a period of five years from the date specified for installation, operation, maintenance, collection and taking free of cost / supply Dry Fly Ash generated from unit 3 and 4 of Chhabra Thermal Power Plant (CTPP) extendable by 5 years on agreed terms and conditions subject to mutual agreement on price to be charged for the dry fly ash, if the government prescribed the levy of any price.
Clause 2.8 and Clause 6 of the MOU dated 9.9.2008 relevant for the disposal of this appeal read as under:
"2.8 RVUN/CTPP agrees to supply dry fly ash free of cost, initially for a period of 5 years from the commissioning of CTPP unit # 3 & 4 and thereafter it will be extended for a period of 5 years on the terms & conditions as agreed upon. However, at the time of extension, if the Govt. prescribes levy of any price for the dry fly ash, the price, if any, to be charged, will be mutually decided."
"6. This agreement will be in force initially for a period of 5 years from the date of commissioning of CTPP unit # 3 & 4 and thereafter it will be extended for a period of 5 years on the terms & conditions as agreed upon. However, at the time of extension, if the Govt.
(3 of 23) [CMA-5596/2018] prescribes levy of any price for the dry fly ash, the price, if any, to be charged, will be mutually decided."
Pursuant to the MOU aforesaid, over the land made available by the defendant at the CTPP, the plaintiff developed a Dry Fly Ash Handling and Maintenance System prior to the defendant commissioning unit 3 of CTPP on 31.12.2013 and unit 4 on 30.12.2014.
Admittedly vide Notification dated 3.11.2009 issued by MoEF Government of India, dry fly ash generated as Thermal Power Plants was required to be charged a price - the regime of its free supply coming to an end. Vide letter dated 17.8.2018, the plaintiff appears to have taken view that as the MOU dated 9.9.2008 pertaining to Unit 3 of CTPP commissioned on 31.12.2013 was to expire on 30.12.2018 and it be extended under clause 2.8 and 6 thereof for a further period of 5 years. That letter however was revoked / withdrawn on 27.10.2018 subsequent to the defendant's refusal to renew the MOU beyond 30.12.2018 qua unit 3 of CTPP on its view of Clauses 2.8 and 6 and instead stating that in terms of the Notification dated 3.11.2009 issued by MoEF requiring that Fly Ash generated by the Thermal Power Stations be sold at the best market price available, Notice Inviting Bid (for (4 of 23) [CMA-5596/2018] short 'NIB') for sale of Dry Fly Ash from unit 3 of CTPP subsequent to 30.12.2018 was to be issued and the plaintiff, if interested, could participate therein. It was thus the defendant's case that the plaintiff did not have an indefeasible right to extension of MOU dated 9.9.2008 beyond 30.12.2018 in respect of unit 3 CTPP as the pre condition therefor, of a mutually agreed price of the dry fly ash was absent.
The polar opposite positions taken by the defendant and the plaintiff with regard to the extension of the MOU dated 9.9.2008 for a further period of 5 years from 30.12.2018 for appropriation and use free of cost Dry Fly Ash generated at unit 3 of the CTPP entailed the plaintiff laying a suit for declaration and permanent injunction against the defendant. An accompanying application under Order 39 Rule 1 and 2 CPC for interim relief was also filed. The reliefs broadly sought in the suit inter-alia were that; a declaration be issued by the trial Court that the MOU dated 9.9.2008 was valid upto 29.12.2019; the defendant be injuncted from obstructing the plaintiff from the appropriation and use of Dry Fly Ash free of cost after 30.12.2018, upto 29.12.2019 and even beyond till the plant for the purpose so fabricated by the plaintiff for appropriation and use of Dry Fly Ash from Unit 3 (and (5 of 23) [CMA-5596/2018] Unit 4) was in a functioning condition; the letters dated 14.9.2018 and dated 11.10.2018 by defendant JVVNL stating that the plaintiff had no indefeasible right of extension of MOU upto 30.12.2018 and that the letter for NIB for sale of Dry Fly Ash be held to be of no legal effect and not binding on the plaintiff; the NIB No. NIB-209/2018-19SE(CA)/CTPP dated 12.10.2018 be declared to be contrary to Clause 2.8 and Clause 6 of the MOU dated 9.9.2008 and any proceedings taken thereunder against the interest of the plaintiff be held null and void; the MoEF Notification dated 14.9.1999 be held to be of no effect on the MOU dated 9.9.2008 and the subsequent Notification of MoEF issued on 3.11.2009 be held to be inoperative and not applicable on the plaintiff; Clause 2.12 of MOU dated 9.9.2008 be declared null and void against the plaintiff; it be declared that the plaintiff was an irrevocable licensee of the defendant over the parcel of land over which the Dry Fly Ash Handling and Maintenance System was fabricated and finally that the defendant be restrained from dispossessing the plaintiff from the plant for disposal of Dry Fly Ash without due process of law.
In the application under Order 39 Rule 1 and 2 CPC for interim relief it was prayed that the plaintiff not be obstructed (6 of 23) [CMA-5596/2018] upto 29.12.2019 and even beyond 29.12.2019 and further till the plant was functional, from removal and appropriation free of cost of Dry Fly Ash generated from unit 3 & 4 of the CTPP. It was also prayed that the defendant be restrained / injuncted from acting contrary to MOU dated 9.9.2008 and also be restrained / injuncted in the interim during the pendency of the suit from acting in furtherance of its NIB dated 12.10.2018.
The application for interim relief under Order 39 Rule 1 and 2 CPC was obviously opposed by the defendant on various counts including that the plaintiff had no legal right to seek the court's intervention for a declaration that the MOU dated 9.9.2008 was valid for a further five years subsequent upto 30.12.2018, and that the issue of further 5 years' extension of the MOU following the expiry of the initial 5 years effective 30.12.2018 was a matter of plaintiff's discretion which in the context of the MoEF Notification dated 3.11.2009 had been appropriately exercised for cessation of free supply as the best market price for the Dry Fly Ash through open bid / tender system was to be ascertained and dry fly ash sold thereon. It was stated that with the NIB the plaintiff could have no quarrel and it could itself freely participate therein. It was also stated that the plaintiff in the facts of the case (7 of 23) [CMA-5596/2018] had neither been able to make out any prima-facie case either on fact or law nor had any balance of convenience in its favour to warrant the exercise of the Court's discretion in its favour for grant of a temporary injunction and continuation of the supply of dry fly ash free of cost during the pendency of the suit.
The trial court having considered the contesting cases of the plaintiff and the defendant in the context of the conditions of the MOU dated 9.9.2008 more particularly clauses 2.8 and 6 thereof found that no case for grant of interim injunction to the plaintiff against the defendant was made out as no price for the supply of dry fly ash had been agreed. The plaintiff's application for temporary injunction under Order 39 Rule 1 and 2 CPC was accordingly dismissed.
Aggrieved, this Civil Misc. Appeal has been filed. Mr. Sudhanshu Kasliwal, Sr. Counsel submitted that the order dated 2.11.2018 passed by the trial court dismissing the plaintiff's application for temporary injunction is a mechanical exercise of discretion without regard to the facts of the case in which both a prima-facie case and balance of convenience obtained for the plaintiff on a wholistic and purposeful construction of the clauses of the MOU dated 9.9.2008. Mr. (8 of 23) [CMA-5596/2018] Sudhanshu Kasliwal submitted that the trial court also failed to appreciate that in the context of the criticality of Dry Fly Ash for production of Cement by the plaintiff, in which business it was and for which the MOU dated 9.9.2008 had been entered into for the first place mandating only captive use of the Fly Ash, an abrupt and arbitrary discontinuation of the supply of Dry Fly Ash from Unit 3 of CTPP owned by the defendant would entail an irreparable loss to the plaintiff, which loss could not be computed in terms of money. Mr. Sudhanshu Kasliwal submitted that consequently damages were not adequate compensation for breach of the MOU dated 9.9.2008. Mr. Sudhanshu Kasliwal submitted that Clause 2.8 as also Clause 6 of the MOU dated 9.9.2008 entailed extension of the MOU for 5 years as a right for the plaintiff on such option being made. For this Mr. Kasliwal drew the attention of the Court to the language of both Clause 2.8 and Clause 6 of the MOU dated 9.9.2008 which provides that the MOU would be extended for a period of 5 years on the terms and conditions agreed upon." Mr. Sudhanshu Kasliwal submitted that the words in the two clauses above "will be extended for a period of 5 years" are reflective of the life of MOU being 10 years effective the date of commissioning of CTPP, qua unit 3 i.e. 31.12.2013 and qua unit 4 on 30.12.2014.
(9 of 23) [CMA-5596/2018] Mr. Sudhanshu Kasliwal submitted that the mere fact that Clause 2.8 and Clause 6 both provided that at the time of extension of the MOU, in the event of the government in the meantime prescribing levy of any price for Dry Fly Ash, the price be charged by the defendant from the plaintiff as mutually decided was not a device for the plaintiff not to take steps for mutual determination of the price on the one hand, and not extension of the MOU for 5 years on the other i.e. take advantage of its own mischief. Mr. Sudhanshu Kasliwal submitted that the price to be paid for supply of Dry Fly Ash in the 5 years following 30.12.2018 was a matter to be reasonably resolved between the plaintiff and the defendant and the absence of such mutuality on the price of Dry Fly Ash could not denude the substantive right of the plaintiff under the MOU to an extension of additional 5 years subsequent to the expiry of first tranche of 5 years on 30.12.2018 qua unit 3 of CTPP. Mr. Sudhanshu Kasliwal submitted that clause 2.8 and clause 6 of the MOU dated 9.9.2008 thus consciously excluded all possibility of competitive bidding for the Dry Fly Ash generated by Unit 3 and 4 of CTPP as the supply was dedicated for a period of 10 years upto 30.12.2023 only to the plaintiff's benefit. It was submitted that in construction of clause 2.8 and clause 6 of MOU (10 of 23) [CMA-5596/2018] dated 9.9.2008, the rule of efficacy related to business contracts should be enforced as the defendants-RRVUNL thereby had effectively waived for ten years commencing installation of unit 3 and 4 CTPP, its right to obtain the market price during this period through an open bid process as is now in breach of contract sought to be done under NIB dated 12.10.2018.
Mr. Sudhanshu Kasliwal further submitted that under its Notification dated 14.9.1999, the MoEF had conscious of the environmentally destructive effects of Dry Fly Ash generated in the production of Thermal Power provided that such Dry Fly Ash - a by product - be supplied to Cement Plant manufacturers and others free of cost for a period of ten years such that environmentally its damaging effects be dissipated and it be productively used. That was the background of the MOU and the defendant thus had agreed that the period of MOU would effectively be 10 years from the Commissioning of unit 3 & 4 of CTPP. He then argued that even otherwise the plaintiff having been permitted to set up the Dry Fly Ash Handling and Maintenance System for Unit 3 & 4 of CTPP on the land earmarked by the defendant, it became an irrevocable licensee-whose license could not be per-emptorily terminated and it dispossessed. In (11 of 23) [CMA-5596/2018] this context, Mr. Sudhanshu Kasliwal submitted that the defendant could not even otherwise dispossess the plaintiff from the Dry Fly Ash Handling and Maintenance System of Unit 3 & 4 and appropriating the dry fly ash available, except by due process of law. Yet it was so intended to do and hence an order of interim injunction was warranted in the facts of the case - which the trial court failed while failing to exercise its jurisdiction and discretion. Mr. Sudhanshu Kasliwal in support of his contentions in the appeal also invoked the doctrines of legitimate expectation and promissory estoppel and relied on various judgments in regard thereto.
Per contra, Mr. RK Agarwal, Sr. Counsel appearing for the defendant submitted that clause 2.8 and 6 of the MOU dated 9.9.2008 make it evident that the contract for the free supply of Dry Fly Ash to the plaintiff by the defendant was binding only for 5 years. Mr. Agarwal submitted that clauses in issue make it evidently clear that following the end of the 5 years period from the date of commissioning of CTPP Unit 3 & 4 respectively, the arrangement for appropriation of Dry Fly Ash by the plaintiff, free of cost could be extended but only subject to mutuality on the price charged therefor, if in the meantime the Government were to (12 of 23) [CMA-5596/2018] prescribe that a price be levied for such appropriation. And that has been so done under MoEF Notification dated 3.11.2009. In this view of the matter the defendant has taken a conscious decision to sell dry fly ash generated at Unit 3 CTPP at the best market price which can be discovered only at a public auction/tender. Clause 2.8 and 6 of the MOU do not oblige the defendant to privately negotiate a price for the dry fly ash even with the plaintiff as such private negotiation qua the disposal of public property would be in the cross-hairs of catena of judgments of the Apex Court and this Court. Mr. RK Agarwal further submitted that even otherwise the extension of the currency of the MOU for further 5 years beyond the first five years from date of commissioning of the units of the CTPP was not automatic but dependent upon an agreement on the price of dry fly ash. Such an agreement being absent, the plaintiff did not have any right at all to an extension of MOU for a further period of 5 years on mere demand. The plaintiff has not offered any price for the dry fly ash generated by Unit 3 CTPP. It instead seeks free supply contrary to the conditions of MOU itself. He thus even remotely has no case at all. Mr. RK Agarwal emphatically submitted that clause 2.8 and clause 6 of the MOU dated 9.9.2008 holistically construed with (13 of 23) [CMA-5596/2018] reference to their language and conditionalities of the purported extension can only be held to be a 'renewal clause' and not an 'extension clause'. And no renewal of the MOU has been done nor any deed therefor drawn.
Mr. RK Agarwal then submitted that even otherwise the plaintiff's suit for declaration and injunction is misdirected and in- fact not maintainable. He submitted that the MOU dated 9.9.2008 is evidently determinable as is borne out from the plaintiff's own best case that it was operative for a maximum period of 10 years. This limited period makes the MOU determinable, he submitted. Further clause 2.12 of the MOU clearly contemplates its termination. Similarly clause 3.10 contemplates strict captive use of the dry fly ash by the plaintiff and any breach of this conditionality under the MOU entails termination. Mr. RK Agarwal submitted that the MOU dated 9.9.2008 thus being determinable was not specifically enforceable under Section 14(1) (c) of the Specific Relief Act 1963 (hereafter 'the Act of 1963'). No injunction in respect thereof could be granted under Section 41(e) thereof. Mr. RK Agarwal submitted that the plaintiff thus did not file a suit for specific performance of the MOU dated 9.9.2008 for apparently it was conscious of the fact that the MOU dated 9.9.2008 could not (14 of 23) [CMA-5596/2018] be specifically enforced, for, aside of dealing with appropriation of movable property i.e. Dry Flash Ash it was also determinable.
Mr. RK Agarwal submitted that in-fact it was also the plaintiff's own honest understanding in the first instance that the MOU dated 9.9.2008 having operated 5 years from the commissioning of unit 3 CTPP on 31.12.2013 needed a renewal. This when vide its letter dated 17.8.2018 it admitted that the MOU dated 9.9.2008 qua unit 3 CTPP with reference to condition no. 2.8 and 6 thereof was to expire on 30.12.2018 as unit 3 CTPP had been commissioned on 31.12.2013. This contemporaneous conduct of the plaintiff vouchsafes that the MOU dated 9.9.2008 was effective for a period of 5 years in the first instance subject to effectively a renewal thereof on the price for supply of Dry Fly Ash being mutually agreed, as in the meantime MoEF Notification dated 3.11.2009 was operative and the supply could not be free of cost. Mr. RK Agarwal submitted that without the mutuality on price of dry fly ash between the plaintiff and the defendant and it is contrary to the terms of the MOU dated 9.9.2008 itself and far- fetched on behalf of the plaintiff to contend that it has an indefeasible right to a 5 years "extension" and free supply of dry fly ash in the duration. Mr. RK Agarwal submitted that presently (15 of 23) [CMA-5596/2018] there being no MOU - extended or renewed - between the plaintiff and the defendant for supply of Dry Flash Ash subsequent to 30.12.2018, interim injunction to allow the plaintiff dry fly ash appropriation free of cost is absolutely inconceivable, such a prayer is wholly misdirected and liable to be rejected.
Mr. RK Agarwal also submitted that the application under Order 39 Rule 1 & 2 CPC filed by the plaintiff did not aver that the plaintiff had a prima-facie case or balance of convenience in its favour and that in the event of the interim relief prayed for not being granted, it would suffer irreparable loss. He submitted that thus without anything more, the application was liable to be dismissed and has been rightly dismissed by the trial court. Mr. RK Agarwal further submitted that the impugned order dated 2.11.2018 reflects that the trial court in dismissing the application for interim injunction reasonably exercised its discretion on the facts and law obtaining. Mr. RK Agarwal further submitted that the Apex Court in the case of Wander Ltd. And Another Versus Antox India P. Ltd. - 1990 (Supp) Supreme Court Cases 727 held that where a discretion of the court below has been reasonably exercised and does not partake any perversity, there is no warrant to displace it by the discretion of the appellate court even if a (16 of 23) [CMA-5596/2018] possibly another view could be first taken. Mr. RK Agarwal however hastened to add that in the instant case another possible view different from that one taken by the trial court in its impugned order dated 2.11.2018 does not even remotely possible. Mr. RK Agarwal submitted that the plaintiff more or less on the same facts had filed a suit for permanent injunction in respect of Unit 7 of the Kota Thermal Power Plant (KTPP) for supply of Dry Fly Ash free of cost after expiry of the initial 5 years and an application under Order 39 Rule 1 and 2 CPC praying for temporary injunction against the floating of tenders therefor by the defendant, as in the present case, qua Unit 7 of the KTPP was also moved. The trial court rejected the temporary injunction application filed by the plaintiff. In the Civil Misc. Appeal thereagainst - SB Civil Misc. Appeal No. 3947/2014 - M/s. Ultra Tech Cement Versus Rajasthan Rajya Vidhyut Utpadan Nigam Ltd., the High Court denied any substantive relief to the plaintiff relating to the right to appropriate and use Dry Fly Ash free of cost for a period beyond the initial 5 years, as had been agreed to between the parties. Reference was also made to the judgment of this Court in S.B. Civil Misc. Appeal No. 1862/2012 - Rajasthan Rajya Vidhyut Utpadan Nigam Ltd. Versus Manglam Cement Ltd.
(17 of 23) [CMA-5596/2018] and three other connected matters; decided on 18.11.2013, where this Court allowed the aforesaid appeals and set-aside the order passed by the trial court on an application under Order 39 Rule 1 and 2 CPC at the instance of the respondents-plaintiffs in the said appeal, where they had been allowed to continue appropriating Dry Fly Ash beyond the initial period of the MOU on the ground of their purported right to extension of the MOU/agreement. In so doing the Court had adverted to the fact that the contracts / agreements / MOU in issue before it were ex- facie determinable within the meaning of Section 14 (1)(c) of the Act of 1963 and therefore, not specifically enforceable resulting in a prohibition on the grant of injunction as per Section 14 (e) of the Act of 1963.
Heard. Considered.
The trial court has by the impugned order dated 2.11.2018 noted the fact that as Unit 3 of CTPP was commissioned on 31.12.2013 and Unit 4 thereof on 30.12.2014, in terms of MOU dated 9.9.2008 the 5 years period of contract for appropriation and free use of the Dry Fly Ash would expire on 30.12.2018 qua unit 3 and on 29.12.2019 qua Unit 4 of CTPP. It was held that the 5 years period for appropriation of Fly Ash free of cost related (18 of 23) [CMA-5596/2018] separately to the respective commissioning of Units 3 and 4 and the period could not be reckoned from the later commissioning of Unit 4 on 30.12.2014. It held that the MOU for appropriation of Dry Fly Ash free of cost by the plaintiff from Unit 3 of CTPP would thus expire on 30.12.2018 as unit 3 was admittedly commissioned on 31.12.2013. In support of its conclusions, the trial court also noticed the plaintiff's contemporaneous conduct of its understanding of the MOU dated 9.9.2008 when under its letter dated 17.8.2018 it agreed that on expiry of the period of 5 years qua the MOU for unit 3 of CTPP on 30.12.2018, appropriate arrangement for supply of dry fly ash for further five years be put in place - albeit the said letter was thereafter retracted from on 28.10.2018 following the defendant's letter dated 14.9.2018 making it clear to the plaintiff that the period for appropriation free of cost of the dry fly ash from Unit 3 CTPP was to expire on 30.12.2018 and in terms of the conditions of the MOU dated 9.9.2008, there was no right of the plaintiff for extension / renewal of the MOU for appropriation and use free of cost of the Dry Fly Ash for a further period of 5 years. This, the trial court held, was the inevitable consequence of the MoEF's Notification dated 3.11.2009 mandating that Fly Ash generated from the (19 of 23) [CMA-5596/2018] Thermal Power Plants be sold only at the best market price determined through the competitive bidding process. And the plaintiff and defendant not having agreed on a price for fly ash, the trial court held that from a reading clause 2.8 and 6 of the MOU dated 9.9.2008 it was clear that subsequent to the completion of the initial 5 years automatic extension of the MOU for further five years could not be permitted. The defendant was, the trial court held, in the circumstances obliged to discover the best market price for the Dry Fly Ash through a competitive bidding process in terms of MoEF Notification dated 3.11.2009. The trial court also noted in the context of the determinable nature of the MOU dated 9.9.2008 and it thus not being specifically enforceable that an injunction qua purported rights thereunder could not be issued for reason of the statutory prohibition under Section 41(j) of the Act of 1963. The trial court therefore, found that the plaintiff did not have a prima-facie case in its favour for it to hold that the MOU dated 9.9.2008 conferred an ironclad right in it to continue to appropriate Dry Fly Ash generated from Unit 3 of CTPP free of cost subsequent to 30.12.2018, upto 30.11.2023 and thereafter as prayed.
(20 of 23) [CMA-5596/2018] The reasoning of the trial court in dismissing the plaintiff's application under Order 39 Rule 1 and 2 CPC by its impugned order dated 2.11.2018 cannot even remotely be held to be perverse rendering the discretion exercised by it liable to be interfered by this Court in this Civil Misc. Appeal. A perusal of clause 2.8 and 6 of the MOU dated 9.9.2008 leads to a prima-facie view that the plaintiff did not have any indefeasible or ironclad right to the appropriation and use of dry fly ash from unit 3 of CTPP or unit 4 free of cost for a period of 10 years from the respective commissioning of the said units. Clause 2.8 and Clause 6 of the MOU indeed state that the MOU 'will" be extended for 5 years but also provide that the extension would be on the condition of an agreement between the parties on the price of dry fly ash. This in my prima facie view indicates that the additional 5 years of the MOU dated 9.9.2008 being operational following the initial 5 years were not so much by way of extension as of renewal. It is well settled that wherever the terms and conditions of an existing agreement need to varied / agreed upon afresh for it to sustain after the expiry of the mutually agreed terms, the exercise jurisprudentially partakes the character of a renewal not an extension. In the instant case, admittedly the free supply for (21 of 23) [CMA-5596/2018] Dry Fly Ash generated at unit 3 and unit 4 of CTPP was contemplated under the MOU dated 9.9.2008 free of cost, for the first 5 years with reference to the date of their respective commissioning. But it was equally clearly provided by clause 2.8 and 6 of the MOU in issue that if the Government were to subsequently require cessation of the free supply, the extension for the further period of 5 years was to be on mutually agreed price of dry fly ash. The MoEF Notification dated 3.11.2009 had put to an end the regime of free supply of Dry Fly Ash and obliged the Thermal Power Plants to obtain the best possible price therefor through competitive bidding. It cannot also be denied that Dry Fly Ash now has a market value and as a by product of the State's or its instrumentality's economic activity of generation of thermal power, has, except for compelling reason, to be sold in a transparent manner to the highest bidder for the maximization of public revenues. The equities of the case as set up, in the circumstances, are also wholly against the plaintiff who seeks free appropriation of the dry fly ash. The plaintiff has also not been able to prima-facie satisfy this Court as to how the MOU determinable in nature as it is, is specifically enforceable under Section 14 of the Act of 1963 and when it is not so, why the (22 of 23) [CMA-5596/2018] statutory prohibition against the grant of injunction in such a situation as provided under Section 41(e) of the Act of 1963 should not attract to its case. It is important to note that the plaintiff itself has not filed a suit for specific performance of contract as evidently in the state of law which obtains - Section 10 of the Act of 1963 - it could not. The prayer for declaration instead made, in the suit is only a red herring as it prima-facie appears that under Section 34 of the Act of 1963 a declaration is obtainable in a civil suit only qua a legal character as contra distinguished from a contractual right and a right to immovable property. None of the two situations (i) of the plaintiff seeking declaration of a legal character or (ii) asserting a right to immovable property in its suit prima-facie obtains in the instant case notwithstanding the plaintiff's apparently far-fetched case of being a licensee of the defendant. Besides for a plain breach of a contract otherwise than one specifically enforceable the plaintiff in law can only seek compensation / damages on proving the defendant's breach.
Reliance placed by Mr. Sudhanshu Kasliwal on the doctrine of promissory estopple and legitimate expectation and the judgments in regard thereto is of no avail. The doctrines in (23 of 23) [CMA-5596/2018] issue are not even remotely relevant for the purposes of prima- facie ascertaining and determining the rights in a contract agitated by the plaintiff in his suit, relate as they do to challenges to administrative / executive decision making in petitions under Article 226/32.
The Apex Court in 2015 (2) SCC 461 - Larsen and Toubro Ltd. Versus Mohan Lal Harbans Lal Bhayana has held that equity cannot alter contract between the parties. Further in (2015) 7 SCC 728 Joshi Technologies International Inc. Versus Union of India (UOI) and others, the Apex Court has held that the doctrine of fairness and reasonableness applies only in the exercise of statutory or administrative actions of State (and it may be added State's instrumentalities) and not in the exercise of contractual obligations. It was further held that issues arising out of contractual matters are to be decided on the basis of law of contract and not on the basis of administrative law.
In this view of the matter, there is no ground whatsoever made out in this Civil Misc. Appeal to interfere with the impugned order dated 2.11.2018 passed by the trial court. The appeal is dismissed.
(ALOK SHARMA),J (MOHAMMAD RAFIQ),J
DK
Powered by TCPDF (www.tcpdf.org)