Calcutta High Court
Somal Pipes Pvt. Ltd vs Coal India Ltd on 6 January, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
GA No. 3814 of 2015
WP No. 2068 of 2005
GA No. 2093 of 2008
SOMAL PIPES PVT. LTD.
Versus
COAL INDIA LTD.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 6th January, 2016.
Appearance:
Mr. Siddhartha Mitra, Sr. Adv.
Mr. M. Hossain, Adv.
Mr. Swaraj Shaw, Adv.
Ms. Titash Mukherjee, Adv.
Ms. Suruchi Khunteta, Adv.
For the petitioners.
Mr. Kalimuddin Mondal, Adv.
For the respondent nos. 1 to 5.
Mr. Alok Banerjee, Adv.
Mr. Aniruddha Mitra, Adv.
Mr. S.M.Obaidullah, Adv.
Mr. Nikhil Kumar Roy, Adv.
For the respondent nos. 6 and 7.
The Court :- GA no. 3814 of 2015 is an application made by the petitioners in WP no. 2068 of 2005 since disposed of by order dated 1st October, 2015. The operative portion of the said order is reproduced below.
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"The petitioners will approach the General Manager, Sales and Marketing of both the coal companies for expeditious re-verification of their claims of not being participants as bidders/purchasers in the since set aside e-auction scheme as well as their claims for refund in the period aforesaid. This process being one of re-verification is to be made as expeditiously as possible and positively within a period of four weeks from the date of communication of a copy of this order along with material to substantiate their claims on account of refund, to be made by the petitioners upon the said authorities. It is made clear the coal companies have to demonstrate that the petitioners had participated in the e-auction as bidders in this period, if they did, to seek to disentitle them from the refund on the objection on law recorded above, not adjudicated upon in view of the concession made on the distinguishing fact of the petitioners not having been bidders. Once the claims are settled on or before the time indicated above, the settled amounts will be forthwith payable to the petitioners by the said two coal companies. So far as the payment of the claims of the petitioners out of the monies deposited by Eastern Coalfields is concerned, they will apply for leave to withdraw the same deposited with the Registrar for payment of their settled claims on refund."
By this application the applicants have prayed for modification of the said order dated 1st October, 2015 to the extent that the respondent no.5 in the writ petition be directed to pay 12% interest calculated till date along with the principal amount of Rs.1,59,16,791.01 from the dates of payments by the applicants.
A similar application being GA no. 3815 of 2015 made by the applicants in the same writ petition was disposed of by order dated 22nd December, 2015. By that order similar modification sought of the said order relating to Eastern Coalfields was allowed as directed therein, the operative portion reproduced below.
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"In such circumstances, this Court feels fit to make a modification of the said order to the extent that the applicant will be entitled to get interest on the settled sum found due to it as a linked customer of the coal company from the dates of payment till the date of the said order being 1st October, 2015, since the coal company has accepted the said order and complied therewith."
It appears the Coal Company against whom the modification was allowed in that application, had deposited a sum of money with the Registrar, Original Side of this Court on a date prior to 1st October, 2015. Accordingly, correction of the order dated 22nd December, 2015 is necessary regarding the direction for payment of interest made upon the said coal company as to be up to the date of such deposit made with the Registrar instead of 1st October, 2015. Since the said coal company is represented today in the hearing of this application, the parties are notified that the said application will be listed as "To Be Mentioned" for correction of the order dated 22nd December, 2015, on 11th January, 2016.
Mr. Mitra, learned Senior Counsel appearing on behalf of the applicants, submits that the case for modification of his clients stands covered by the order dated 22nd December, 2015. He draws attention to the letter dated 19th November, 2015 issued by North-Eastern Coalfields to the learned Advocate of the applicants regarding settlement of claim of his clients. It appears from the record of proceedings of re-verification of accounts annexed to the said letter that under point no.7 thereof the said coal company's representative had stated that the Court order and 4 judgment dated 1st October, 2015 provides no specific direction for payment of interest and CST on the principal amount and thus it is not payable by them. Mr. Mitra submits the order dated 1st October, 2015 was made following the judgment of the Supreme Court in Eastern Coalfields Ltd-Vs-Tetulia Coke Plant(P) Ltd & Ors., reported in (2011) 14 SCC 624 in which the said Court had held it cannot be said that the effect of the decision of Ashoka Smokeless Coal Industries (P) Ltd can be restricted only to those cases which were pending before that Court and not for all cases which were pending in different High Courts at that stage, at least to the issues which are common in nature. He submits, therefore, the said order dated 1st October, 2015 was made which his clients interpreted as complete relief granted in the matter of obtaining the refund with interest as an effect of the judgment of the Supreme Court in Ashoka Smokeless Coal Industries (P) Ltd-Versus-Union of India reported in (2007) 2 SCC 640. Hence his clients had applied accordingly but in view of the stand taken by the said coal company, the modification sought was necessary.
Mr. Mondal, learned Advocate appearing on behalf of North- Eastern Coalfields, submits he has two further and other points in addition to those already dealt with by order dated 22nd December, 2015. The case of the applicants was not one for modification but a fresh cause for which they might resort to filing a writ petition to espouse such cause. Such case was not a case for modification. He relies on a 5 judgment of the Supreme Court in the case of J.S. Parihar-Versus- Ganpat Dugar, reported in (1996) 6 SCC 291 in particular paragraph 6 therein out of which, it is sufficient, to reproduce the following portion.
"It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review."
He also relies on a decision of the Supreme Court in the case of V.Kanakrajan-Versus- General Manager, South Eastern Railway & Ors, reported in AIR 1996 SC 2758 in which the Supreme Court while considering the dismissal of an application for contempt by the Division Bench, took the view that the High Court was right in declining to entertain the same. The reason given by the Division Bench of the High Court as reproduced in the judgment of the Supreme Court is also reproduced below.
"It was not directed by us that the question of promotion of the petitioner should be considered only on the basis of the confidential reports. It may be that the effect of the confidential reports being in favour of the petitioner, the respondents should have granted him promotion. But we are not considering the merits of the report of the competent authority in not recommending the promotion of the petitioner. We are also unable to consider whether the competent authority was justified in observing that the petitioner is not a suitable candidate for promotion as per rules. The remedy of the petitioner, in our opinion, lies not in an application for contempt but in a separate writ petition against the order that was communicated to him by the Chief Personnel Officer dated May 18, 1981."6
His other point is that by praying for this modification to obtain interest from his client, the applicants are seeking to unjustly enrich themselves. For this submission he relies on a decision of the Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India reported in (1997) 5 SCC 536 in particular paragraphs 52 and 53 therein. A portion of paragraph 52 is reproduced below for the purpose of adjudication of this application.
"52. . . . . . . . . the enhancement of market fee from two to three per cent was held to be bad, whereupon the traders demanded refund of the excess market fee collected from them. This Court held that though refund of the fee so collected may be legally due to the traders, the traders may be repaid amounts only to the extent they have not passed on the burden to their customer. To the extent they have passed on, it held, they were not entitled. This principle was deduced from the concept of distributary justice underlying Articles 38 and 39 of the Constitution of India as also from the discretionary nature of the power under Article 226 of the Constitution . . . . . . .."
Mr.Mondal by relying on Explanation 5 to Section 11 of the Code of Civil Procedure submits further that the relief of interest was claimed by the applicants in their application being GA no.2093 of 2008 made earlier which stood disposed of by the said order dated 1st October, 2015. There being no direction for payment of interest in the said order, the same relief claimed by this subsequent application must be taken to have been deemed to be refused. Such relief cannot now be obtained by the applicants by seeking modification.
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Mr. Mitra in reply submits that there was an exercise undertaken for reverification of the claims of the applicants pursuant to the said order dated 1st October, 2015. In that reverification the coal company had refused to pay interest since there was no direction made specifically to that effect in the said order. Hence this application for modification made in facts and circumstances distinguishable from J.S. Parihar (supra), Mafatlal Industries Ltd. (supra) and V. Kanakrajan (supra) and the same should be allowed.
This Court finds the applicants had approached the coal company with their claims pursuant to the said order dated 1st October, 2015. Such included their claim for interest on the amounts they had paid earlier, refund of which was directed to be paid to them by the said order as an effect of Ashoka Smokeless (supra). The coal company on the other hand construed the said order as one which, according to them, refused the claim for interest. Hence, they refused to pay interest or take the same into account for the calculation of the amounts payable in reverification of the claims directed to be made.
By the said order there was also a direction upon the coal company entitling it to reject the claims of the applicants if they were found to be bidders in the e-auction. The coal company did not reject the claims of the applicants as obviously the applicants were not bidders in the e-auction. They were the linked consumers of the coal company as is the undisputed position that emerges. The exercise of reverification 8 however, in the opinion of this Court, was not an order passed by the coal company which would give rise to a fresh cause of action as cannot be adjudicated on an application made for modification of an earlier order passed. What is clear is that the order dated 1st October, 2015 had been made the following the judgment of the Supreme Court of Ashoka Smokeless (supra) and Tentulia Coke Plant (supra). The question whether interest was or was not payable as an effect in Ashoka Smokeless (supra) was decided by the Supreme Court by interim orders and judgments made in the said two cases adjudicated by it. There was no adjudication by this Court regarding entitlement of payment of interest to the applicants. Hence the conflicting interpretation of the said order dated 1st October, 2015 by the parties opposing each other in this Court is itself a reason for which this Court feels the modification as prayed for is necessary. Also there having been no adjudication by this court on the entitlement of interest it cannot be said such claim was refused.
So far as the objection to the modification being allowed on the ground of unjust enrichment is concerned, as aforesaid, the question of entitlement and payment of interest was decided in the interim and other orders made in Ashoka Smokeless (supra) and Tetulia Coke Plant (supra). The said contention raised in opposition today is that the applicants having had passed on the burden of the excess e-auction price paid by them, should not get an order regarding entitlement of 9 interest as it would amount to unjust enrichment. Such contention or point ought to have been taken by the coal company or companies before the Supreme Court. By the said order dated 1st October, 2015 the position settled by the Supreme Court regarding the disputes arising out of the scheme of e-auction set aside was followed to give the relief to the applicants as the writ petitioners, which this Court found was the effect of such judgments of the said Court.
For the reasons aforesaid, the modification sought is allowed. The order dated 1st October, 2015 is modified to the extent that the applicants will be entitled to get interest on the settled principal sum found due as a linked customer of the coal company from the dates of payment till the date of the said order being 1st October, 2015. Since the coal company has accepted the said order and made its position known that it is willing to pay the principal sum found due as reverified by it, the reverified principal amount along with interest calculated on and from the dates of payments till 1st October, 2015 is to be paid to the applicants within a period of four weeks from the date of communication of this order.
The application is disposed of.
(ARINDAM SINHA, J.) snn/sd.