Calcutta High Court
North Eastern Coalfields Limited & Anr vs Somal Pipes Private Limited & Ors on 27 June, 2016
Author: Soumitra Pal
Bench: Soumitra Pal
IN THE HIGH COURT AT CALCUTTA
IN APPEAL FROM AN ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
PRESENT:
The Hon'ble Mr. Justice Soumitra Pal
The Hon'ble Mr. Justice Mir Dara Sheko
G.A. No. 347 of 2016
APOT No. 35 of 2016
W.P. No. 2068 of 2005
G.A. No. 3814 of 2015
G.A. No. 2093 of 2008
North Eastern Coalfields Limited & Anr.
Vs.
Somal Pipes Private Limited & Ors.
For the Appellant : Mr. Kalimuddin Mondal, Advocate,
Mr. Nikhil Roy, Advocate,
Mr. S.M. Obaidullah, Advocate.
For the Respondents : Mr. Kalyan Kumar Bandyopadhyay,
Senior Advocate, Mr. M. Hossain, Advocate, Ms. Titash Mukherjee, Advocate, Ms. Suruchi Khuntela, Advocate.
Heard on : 27.4.16,29.4.16,06.5.16,16.5.16,17.5.16
and 18.5.16.
Judgment on : 27th June, 2016.
Soumitra Pal, J.:-
This appeal has been preferred by North Eastern Coalfields Limited (for short 'NECFL')and its General Manager (S & M), the appellant No. 1 and 2 respectively, against the order dated 6th January, 2016 passed in G.A. No. 2093 of 2008 and in G.A. No. 3815 of 2015 arising out of W.P. No. 2068 of 2005 (Somal Pipes Private Limited versus Coal India Limited and Ors.) principally on the ground that since the writ petition was finally disposed of by an order dated 1st October, 2015 (for short the 'earlier order'), the learned single Judge erred in passing the order dated 6th January, 2016 granting interest on an application praying for clarifying the earlier order. Since the learned single Judge had finally disposed of the writ petition and the application and directions have been carried out by the appellants, the subsequent application, being G.A. No. 3814 of 2015 (for short 'the application') is not maintainable.
Mr. Kalimuddin Mondal, learned advocate for the appellant, relying on the grounds of appeal, had submitted that though the application was made for clarifying the order passed on 1st October, 2015, actually it was an application for modification and/or review of the earlier order. Since in the writ petition filed in the year 2005 prayer was not made for grant of interest and in the application being G.A. No. 2093 of 2008 prayer was made for refund, the learned single Judge erred in modifying the order by directing payment of interest. As the writ petition was finally disposed of by the earlier order and, thereafter, the respondent/writ petitioner through its learned advocate by letter dated 13th October, 2015 had requested for implementation of the earlier order dated 1st October, 2015 and in compliance with the direction of the earlier order, NECFL had passed an order dated 25th November, 2015, the learned single Judge erred in passing the order dated 6th January, 2016 modifying the earlier order. According to him the prayer for grant of interest is a fresh of cause of action.
Submission is that the interim order contained in paragraph 8 of the order dated 12th December, 2005 issued in Ashoka Smokeless Coal Industries cannot be the basis for grant of interest at the rate of 12% since the Supreme Court while finally disposing of the matter - Ashoka Smokeless Coal Industries (P) Limited v. Union of India: (2007) 2 SCC 640 did not grant interest. As in Eastern Coal Field Ltd. v. Tetulia Coke Plant (P): (2011) 14 SCC 624 the Supreme Court had directed that if the authorities failed to pay the amount it would carry interest at the rate of 9% per annum, the respondent is not entitled to interest. Further as Explanation V to section 11 of the Code of Civil Procedure, 1908 stipulates that any relief claimed in the plaint, which is not expressly granted by the decree shall be deemed to have been refused and as section 152 of the Code empowers Court to correct clerical or arithmetical mistakes in decrees and orders and as principles of the Code are applicable to writ proceedings the learned single Judge erred in passing the order impugned. Moreover, according to him the issue is covered by the judgement delivered on 15/17th March 2016 in G.A No. 238 of 2016 in APOT 27 of 2016 (Eastern Coal Field Limited versus Oriental Ceramics and Refractories (p) Ltd & Ors). Mr. Mondal had relied on the judgments in the State of U.P v. Brahm Datt Sharma: AIR 1987 SC 943, in J.S.Parihar v. Ganpat Duggar: (1996) 6 SCC 291 and in Vinod Kumar Singh v. Banaras Hindu University: AIR 1988 SC 371 in support of his submission.
Mr. Kalyan Kumar Bandyopadhyay, learned Senior advocate appearing on behalf of the respondent/writ petitioner submitted that as on 12th December, 2005 an undertaking was given on behalf of the Coal India Limited before the Supreme Court regarding grant of interest and it still continues and as the appellant cannot be discriminated against just because he had earlier filed an application before the Supreme Court, the benefit of such undertaking should have been given. Since the said judgment of the Supreme Court is a judgment in rem and binds all parties similarly situated and even an application is not necessary, the appellant is entitled to interest. In view of the undertaking by Coal India given before the Court it was virtually an inbuilt relief granted by the Court and thus refund with interest is not a fresh cause of action. Submission is that the order dated 15th/17th March, 2016 passed in G.A No. 238 of 2016 in the APOT 27 of 2016 (Eastern Coal Field Limited versus Oriental Ceramics and Refractories (P) Ltd & Ors) is per incuriam as the judgments in Nifty Chemicals (P) Ltd v. Union of India: (2009)15 SCC 314 and S.J. Coke Industries P (Ltd) v. Central Coalfields Ltd: (2015) 8 SCC 72, which cover the issue, was not brought to the notice of the Court. In this context reliance was also placed on the judgments in State of Kerala v. Kumari T.P. Roshana: (1979) 1 SCC 572; Gopal Krishna Sharma v. State of Rajasthan: 1993 Supp(2) SCC 375; Rupadhar Pujari v. Gangadhar Bhatra: (2004) 7 SCC 654, Vajrapu Sambayya Naidu v. State of A.P: (2004) 10 SCC 152; Government of Karnataka v. Gowramma: (2007) 13 SCC 482; State of Maharashtra v. Hindutan Construction Company Limited: 2010(4) SCC 518 and State of Uttar Pradesh v. Arvind Kumar Srivastava: 2015(1) SCC 347,. Relying on the judgment in A. R. Antulay v. R.S. Nayak: (1988) 2 SCC 602 submission was the learned single Judge in the order dated 6th January, 2016 had rectified the mistake committed in the earlier order. So far as judgments relied on behalf of the appellants are concerned, submission was that the judgement in J.S. Parihar (supra) is inapplicable as therein new directions were given. The judgement in State of U.P. v. Brahm Datt Sharma (supra) is also inapplicable as therein by a miscellaneous application separate cause of action was raised. Since the respondent/writ petitioner has acquired substantive right to get interest and as substantive justice will prevail over the procedural law, - that is, the Code of Civil Procedure, - the judgment under challenge may not be interfered with.
Mr. Mondal in reply submitted that as the learned Single Judge by the earlier order dated 1st October, 2015 had consciously refused the payer for grant of interest after considering the judgment in S. J. Coke Industries (supra) and as at one point of time the respondent/petitioner was pursuing parallel proceedings before the Supreme Court and the High Court for grant of interest, which is not permissible under the law, the judgment under appeal may be set aside and appeal be allowed.
The issue is whether the learned single Judge was justified in passing the order dated 6th January, 2016 on an application praying for modification of the earlier order whereby the writ petition and the connected application had already been disposed of.
We find that the learned single Judge on 1st October, 2015 while disposing of the writ petition and its connected application had directed that once claims are settled the settled amount would be forthwith payable by the coal companies to the writ petitioner. Be it noted in the earlier order there was no direction to pay interest. After the earlier order was passed, the respondent, that is the writ petitioner, through his learned advocate had issued a letter dated 13th October, 2015 praying for reverification of accounts and claims in the light of the directions given in the earlier order dated 1st October, 2015. Thereafter, on 25th November, 2015 after hearing the parties NECFL had passed an order wherein interest was declined. Subsequently, the respondent had filed the application for modification of the earlier order praying for interest which was allowed by order dated 6th January, 2016 which is under challenge. The question is whether the learned single Judge was justified in passing the order dated 6th January, 2016. It is already noted that after the earlier judgment was delivered on 1st October, 2015 the respondent/writ petitioner had represented before the NECFL for implementation of the order. In the representation dated 13th October, 2015 there was no prayer for interest. Thereafter, the NECFL had passed an order dated 25th November, 2015 directing payment of a sum without interest. This order was challenged by the respondent/writ petitioner by filing an application in a writ petition already disposed of by the earlier order. In our view when the proceedings came to an end with the passing of the earlier order, the learned single Judge was not justified in passing the impugned order dated 6th January, 2016 on an application as in State of U.P. V Brahm Datt Sharma (supra) the Supreme Court had held that "When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by mean of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning"
(paragraph 10). Since in the earlier order the learned single Judge, even after considering the judgment in S. J. Coke Industries (supra), had declined the prayer for grant of interest, the submission of Mr. Bandyoapadhyay that the judgment dated 15/17th March, 2016 passed in G.A 238 of 2016 heard with APOT 27 of 2016 is per incuriam cannot be accepted. It is to be noted that though the judgment in Nifti (supra) which was not brought to the notice of the learned single Judge, however, the principles of law and the factual aspect find echo in S.J. Coke Industries (supra) which is a later judgment. It is to be borne in mind that Supreme Court in Vinod Kumar Singh(supra) had held once judgement is delivered, proceedings stand terminated and modification of the judgement is not permissible except in exceptional cases. As NECFL, in compliance with the earlier order, had passed the order dated 25th November, 2015, there was no ground to reopen the proceedings by filing an application. Had the writ petitioner been aggrieved by the order dated 25th November, 2015 passed by NECFL, the remedy was not by way of filing an application challenging the said order in a proceeding which was disposed of by earlier order dated 1st October, 2015.
That apart, as section 152 permits correction of clerical or arithmetical mistakes in judgments, decrees or order or errors arising therein from any accidental slip or omission and as denial of interest in the earlier order cannot be called a mistake, the submission on behalf of the appellant has to be accepted. In our view, had there been some positive discussion on the question of grant of interest in the earlier order, in that event, relief, if granted, would have been in harmony with the earlier order. Moreover, the earlier order, that is, the judgement dated 1st October, 2015 does not contain any discussion on the question of grant of interest even after taking note of the judgment in S.J. Coke Industries (supra). Assuming grant of interest was a part of the claim of the respondent/writ petitioner, as the principles of the Civil Procedure Code are applicable to writ proceedings, in view of Explanation V to section 11 of the Code, which postulates that any relief claimed in the plaint, which is not expressly granted by the decree, shall be deemed to have been refused, as interest was not granted by the earlier order, the learned single Judge erred in passing the order dated 6th January, 2016 by modifying the earlier order. Therefore, as Court by its earlier order expressly did not allow the prayer regarding interest, it was deemed refusal under Explanation V to Section 11 of the Code. In the light of the discussion hereinbefore, the learned Judge erred while passing the order impugned as it came in conflict with Explanation V to section 11. For the reasons as aforesaid the judgments in State of Kerala v. Kumari T.P. Roshana: (supra); A. R. Antulay (supra); Gopal Krishna Sharma (supra); Rupadhar Pujari (supra); Vajrapu Sambayya Naidu (supra); Government of Karnataka v. Gowramma (supra); State of Maharashtra v. Hindutan Construction Company Limited (supra) and State of Uttar Pradesh v. Arvind Kumar Srivastava (supra) relied on by the respondent/writ petitioner are not applicable.
Therefore, once a petition is disposed of by a final order and as under
section 152 clerical or arithmetical mistakes in judgement, decree or order can only be corrected and any order granting further relief on the basis of subsequent application is not permissible and in view of Explanation V to section 11 of the Code as modification of the earlier order is not permissible and as in the instant case after the proceedings stood terminated by the earlier order in which there was no direction to grant interest and NECFL had carried out a direction by passing an order which cannot be challenged by filing modification application and as the issue is covered by the judgment delivered on 15/17th March, 2016 passed in G.A. No. 238 of 2016 heard with APOT 27 of 2016, the submission made on behalf of the appellant has to be accepted. Hence, for the reasons as aforesaid, the judgment dated 6th January, 2016 passed by the learned single Judge is set aside and quashed. The appeal is allowed. The application is disposed of.
No order as to costs.
Urgent photastat certified copy of this judgement, if applied for, be furnished to the appearing parties on priority basis.
(Soumitra Pal, J.) I agree.
(Mir Dara Sheko, J.)