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M/S. Usha Martin Ltd. vs Jharkhand Urja Vikas Nigam Ltd. ... on 24 August, 2015

2       ITEM NO.72                                       COURT NO.7                          SECTION
XVII

                                           S U P R E M E C O U R T O F               I N D I A
                                                   RECORD OF PROCEEDINGS

       Petition(s) for Special Leave to Appeal (C)                                  No(s).     23632/
2015

       (Arising out of impugned final judgment and order dated 28/07/2015
       in LPA No. 305/2015 passed by the High Court of Jharkhand at
       Ranchi)

     M/S. USHA MARTIN LTD.                                                                       Petit
ioner(s)

                                                                 VERSUS

     JHARKHAND URJA VIKAS NIGAM LTD.
     (EARLIER-JHARKHAND STATE ELECTRICITY BOARD) AND ORS.                                        Respo
ndent(s)

       (with appln. (s) for directions)


       Date : 24/08/2015 This petition was called on for hearing today.

       CORAM :
                                   HON’BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
                                   HON’BLE MR. JUSTICE UDAY UMESH LALIT

       For Petitioner(s)                         Mr.   Kapil Sibal,Sr.Adv.
                                                 Mr.   Krishnan Venugopal,Sr.Adv.
                                                 Mr.   Rakesh Dwivedi,Adv.
                                                 Mr.   Vimal Kirti Singh,Adv.
                                                 Mr.   Siddhartha,Adv.
                                                 Ms.   Pooja Dhar,Adv.

       For Respondent(s)                         Mr. Ajit Kumar,Sr.Adv.
                                                 Mr. Navin Kumar,Adv.
                                                 Mr. Aabhas Parimal,Adv.
                                                 Mrs. Aprajita Bhardwaj,Adv.
                                                 Mr. Himanshu Shekhar,Adv.

                              UPON hearing the counsel the Court made the following
                                                      O R D E R

We heard Mr. Kapil Sibal, Mr. Krishnan Venugopal and Mr. Rakesh Dwivedi, learned senior counsel appearing for the petitioner and Mr. Ajit Kumar, learned senior counsel appearing for the respondents.

This special leave petition is directed against the interim 16:38:16 IST order of the Division Bench of the High Court, pending LPA before Reason:

the Division Bench. The question pertains to the fuel surcharge  1 and delayed payment surcharge payable by the petitioner to the respondent No.1/Electricity Board. The claim of the respondent in their Bills dated 18/6/15, 25/6/15 and 2/7/2015 along with disconnection notice was for a total sum of Rs. 107.73 crores. Out of the said sum, the principal amount stated to be only Rs.23.85 crores apart from delayed payment surcharge of Rs.83.88 crores. The Division Bench, taking note of the earlier orders of the High Court as well as of this Court, by the impugned order directed the petitioner to deposit the entire principal amout of Rs.23.85 crores by 31.8.2015 apart from payment of Rs.41.94 crores towards late payment surcharge in seven equal installments by 31.3.2016 and furnish bank guarantee for Rs.41.94 crores representing the other 50% of delayed payment surcharge before 31.8.2015.

Having heard learned senior counsel for the petitioner and the respondent, we find that the issue now lies in a very nar row compass as to the manner of the working out of the liability of the petitioner towards payment of fuel surcharge as well as delayed payment surcharge. The said issue is the subject matter of examination in the pending LPA before the Division Bench. Wh ile the petitioner would claim that it has already paid 75% of the principal amount which is seriously disputed, based on the manner of calculation made, by the petitioner on the one side and the respondent/Board on the other side. While the payment as claimed to have been made by the petitioner remains, the controversy can be thrashed out only in the LPA, which is now pending before the Division Bench. Pending consideration of the main LPA, equity can be worked out by directing the petitioner to deposit the principal amount of Rs.23.85 crores and the other liability, namely, fuel surcharge and delayed payment surcharge can be left to be ascertained and determined by the Division Bench while examining the correctness of the bills which are under challenge in the LPA. One recovery of the same, namely, fuel surcharge and delay ed payment surcharge shall depend upon the ultimate order to be passed by the Division Bench.

Since the time granted by the Division Bench for depositing 2 the principal amount would expire by 31.8.2015, considering the prayer made on behalf of the petitioner, the time is extended and the payment to be made in two equal installments. The first installment to be paid on or before 30.9.2015 and the second installment by 31.11.2015. Subject to payment of the said sum within the above due dates, we request the Division Bench to dispose of the LPA by January, 2016. With the above modification of the condition imposed in the impugned order the special leave petition stands disposed of.

If the petitioner fails to comply with the modified condition within the stipulated time limit, the benefit granted under this Order will automatically cease to operate.

  (NARENDRA PRASAD)                                                  (SHARDA KAPOOR)
    COURT MASTER                                                       COURT MASTER




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