Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. No. …..with I.A. Nos. 1-2 in T.C.(Civil) No. 113 of 2005
NIFTY CHEMICALS PVT. LTD. ...PETITIONER
Versus
UNION OF INDIA ... RESPONDENT
WITH
I.A. No.. …….. and I.A. No. 1 in T.C.(C) No. 115 of 2005
I.A. Nos.1-3 & 4 in T.C.(C) No. 117 of 2005
I.A. No……… and I.A. No. 1 in T.C.(C) No. 118 of 2005
I.A. Nos. 1 & 2 and I.A. No. ……. in T.C.(C) No. 119 of 2005
I.A. No……..and I.A. Nos. 1 & 2 IN T.C.(C) No. 120 of 2005
I.A. No…….and I.A. Nos. 1 & 2 in T.C.(C) No. 121 of 2005
I.A. NO. 1 in T.C.(C) No. 122 of 2005
CONTEMPT PETITION (C) NO. 47 OF 2008 in T.C.(C) No. 116 of 2005
CONTEMPT PETITION (C) NO. 49 OF 2008 in T.C.(C) No. 112 of 2005
O R D E R
Dr. Mukundakam Sharma, J.
1. By this order we propose to dispose of the above mentioned
interlocutory applications arising out of Transfer Case Nos.
113, 115, 117, 118, 119, 120, 121, 122 of 2005 and contempt
petition No. 47 of 2008 in T.C. (C) 116/2005 and contempt
petition No. 49 of 2008 in T.C. (C) 112/2005.
2. The basic facts in all these applications are similar. Therefore,
the facts in I.A. No. …..with I.A. Nos. 1-2 in T.C. (Civil) No. 113
of 2005 are taken as illustrative for the purpose of our decision.
3. The present application is filed on behalf of the four applicants,
namely, M/s. Trimurti Moulds Pvt. Ltd., Coventry Stonewares
Pvt. Ltd., Vidharbha Ceramics Pvt. Ltd. and Ceramics
Industries (I) Pvt. Ltd. through their respective Directors praying
for issuance of directions to the M/s. Western Coalfields Ltd. (a
subsidiary of Coal India Ltd) being respondent herein for
implementation and execution of the direction given by this
Court in its order dated 30.10.2007 in T.P. (C) No. 100 of 2006.
The prayer was to the following effect : –
(i) Direct the respondent Coal Company i.e. M/s. Western Coalfields
Ltd. to implement and obey their own undertaking given before
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this Court and as recorded by this Court in it’s order dated
12.12.2005 and 30.10.2007 in Transfer Petition (Civil) No. 100 of
2006 and analogous matters and refund excess money deposited
by the Petitioners/Applicants herein over and above the Notified
Price since the introduction of E-auction along with interest at the
rate of 12% per annum, and/or
(ii) Direct the Respondent M/s. Western Coalfields Ltd. to pay Bank
interest on the amount already refunded to applicants (on
25.07.2008) not only up to 30.4.2008 but till the date of payment.
4. The applicants are non-core linked consumers of coal of M/s.
Western Coalfields Ltd. It is stated in the application that the
applicants and other similarly situated non-core linked
consumers were being supplied coal by M/s. Western
Coalfields Ltd. at fixed price which is stated to be Notified Price,
which was used to be fixed once in a year by the respondent
coal company. The Coal India Ltd. and its subsidiary coal
company like the respondent herein introduced a new Scheme
in the year 2004 for sale of coal and the said scheme was
made applicable to even non-core linked consumers like the
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applicants herein. The aforesaid Scheme was called as “E-
auction Scheme” in which price of coal was to be determined
by market forces in place of fixed price, i.e. the Notified Price.
The validity and legality of the aforesaid scheme of E-auction
was challenged by the various companies like and including the
applicants herein by way of writ petitions before the Bombay
High Court, Nagpur Bench. The writ petition of the applicants
was registered as Writ Petition (Civil) No. 2421 of 2005. In the
said writ petition the High Court passed an interim order on
21.06.2005, whereby and whereunder Coal India Ltd. and M/s.
Western Coalfields Ltd. were directed to supply coal to the
applicants at Notified Price subject to petitioner depositing with
M/s. Western Coalfields Ltd. the difference between the E-
auction price and the Notified Price.
5. In view of and in terms of the aforesaid interim order applicants
started lifting coal after depositing the amount in cash, with
respect to the difference between the average E-auction price
and the notified price. Similar writ petitions were filed
challenging the legality of the aforesaid Scheme of sale of coal
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through E-auction in various other High Courts. Interim orders
were passed by a number of High Courts also, and therefore,
special leave petitions came to be filed by the companies like
the applicants in this Court. The coal companies preferred a
number of transfer petitions in this Court seeking transfer of all
the writ petitions pending on the aforesaid subjects before the
various High Courts to this Court. The special leave petitions
filed by the various coal consumers in this Court and the
transfer petitions preferred by the coal companies were taken
up together and this Court under order dated 12.12.2005 finally
allowed all the transfer petitions preferred by different coal
companies by passing a detailed order. The operative portion
of paragraphs 8 and 9 of the aforesaid order is reproduced
hereinbelow :
“8.……..Taking note of the circumstances as a whole we
feel that it would be just and proper to direct the petitioner
companies/firms, having coal linkage, to pay in addition to
the notified price, 33 1/3 % of the enhanced price, each
time they claim supply of coal to them based on the
linkage and by furnishing security for the balance
66 2/3 % of the enhanced price with an undertaking filed
in this Court that the said part of the price will also be
paid within 6 weeks of the decision of this Court in the
Writ Petitions in case the writ petitions are decided
against the petitioners. To protect the interest of the
petitioners and to ensure that no permanent harm is
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caused to them we also think it proper to record the
undertaking given on behalf of the Coal India Ltd. and its
subsidiaries that in case this Court upholds the challenge
made by the petitioners and allows the writ petitions filed
by them, the enhanced price of 33 1/3% now to be paid
by the petitioners will be refunded to the petitioners within
6 weeks of the judgment of this Court with interest
thereon at 12% per annum from the date of payment till
the date of return to the concerned petitioner.
9.………….All the same, we think it appropriate to direct
that on the concerned petitioner paying the notified price
plus 33 1/3% of the enhanced price as per the E-auction
and furnishing security for the balance 66 2/3% of the
enhanced E-auction price, and filing the undertaking in
this Court within four weeks from today, the coal as per
the linkage will be supplied to the concerned petitioner
within a period of 3 weeks from the date of such payment.
It is clarified that there will be no obligation on the part of
the Coal India Ltd, and its subsidiaries to supply the coal
as per this interim order in the case of those who have
not complied with the order for payment of 33 1/3% of the
difference in price in addition to the notified price and for
furnishing of security for the balance 66 2/3% of the
enhanced price, and filing the undertaking in this Court to
pay the entire amount if they do not succeed in their
challenge. It is directed that this interim order will enure
until these writ petitions are finally heard and disposed of
by this Court.”
6. On 18.1.2006, the aforesaid order passed on 12.12.2005,
came to be clarified in the following manner :
“…….We must note that assurance has been given by
the learned Solicitor General appearing on behalf of Coal
India Ltd. and other subsidiary Companies that the
interim order of this Court date December 12, 2005 shall
be implemented in letter and spirit.
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We would clarify that so far as furnishing of security
for the balance 66 2/3% of the enhanced price is
concerned, the Coal Companies shall not insist on
furnishing bank guarantees and shall supply Coal on their
furnishing undertaking by the Managing Director or
Managing Partner of the Company/Firm, as the case may
be, apart from indemnity bonds or other types of
securities subject of course to the compliance of other
directions.”
The applicants have stated in the application that pursuant to the
aforesaid orders passed by this Court they submitted entire detail in a chart
showing the amount which the respondent M/s. Western Coalfields Ltd.
was liable to refund to the applicants.
7. This Court by the judgment and final order dated 01.12.2006 in
Civil Appeal No. 5302 of 2006 titled as Ashoka Smokeless
Coal India (P) Ltd. v. Union of India , reported in (2007) 2
SCC 640 upheld the challenge of the applicants to the scheme
of E-auction. While allowing the writ petitions this Court held
that the aforesaid scheme of E-auction was invalid and
declared the same as ultravires of Article 14 of the Constitution
of India and quashed the said E-auction Scheme.
Consequence of the said judgment and order is that the coal
companies like the Respondent were required to refund the
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entire price paid by the applicants over and above the Notified
Price as per their undertaking before this Court and as
recorded in the order dated 12.12.2005 and 30.10.2007.
8. Alleging violation of the aforesaid orders passed by this Court
contempt petitions were filed in which the following order came
to be passed by this Court on 30.10.2007 :
“i) The Petitioners shall furnish all documents to the
learned Advocates-on-Record of the respondents,
showing the actual payments made to any of the
subsidiaries of the Coal India Ltd. and the difference
th
between the amount paid and the amount notified by 12
November, 2007.
ii) The documents furnished by the Petitioners shall be
verified by the officers of the concerned Coal companies
within four weeks thereafter.
iii) In case of any difference, the learned counsel, would
deliberate upon the matter so as to enable them to come
out with an accepted solution.
iv) The Bank guarantee furnished by the Petitioners shall
stand discharged”
9. Despite representation filed in that regard by the aforesaid four
applicants and no effective steps having been taken by the
Respondent for redressal of their grievances, the present
application was filed in which an affidavit also came to be filed
on behalf of the M/s. Western Coalfields Ltd., the respondent
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herein. In the said affidavit the respondent coal company has
stated on oath that after verification of all records and after
considering the report of the Committee constituted under the
order of this Court and on their recommendation the
respondent herein released the refund payments to 118 parties
out of 122 parties, as the remaining 4 parties were directed to
submit documents, namely, money receipt and PAN so as to
enable the company to release their amount. The company
has further stated in their affidavit in the following manner :
“….Further the parties who have deposited the additional
amount due to increase in the e-auction price at the time
of delivery are also entitled to refund alongwith interest.”
10. In the light of the aforesaid pleadings of the parties we have
heard the learned counsel appearing for the parties.
11. Mr. M.L. Verma, the learned senior advocate primarily made
following threefold submissions before us. His first submission
was that the interest which was payable pursuant to the orders
of this Court on the extra amount taken and received by the
respondent in terms of the interim orders of this Court is
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payable till the date when extra money taken by the respondent
was refunded but instead the respondent coal company has
computed the said interest only till 30.4.2008 and not till
28.6.2008, when the aforesaid extra money taken by them was
actually refunded. His second submission was that the
respondent-Company has also not paid to the applicants the
entire interest that actually accrued on the fixed deposit receipt
which was deposited on the account of the applicants. It is
next submitted by him that the writ petition of the applicants
registered as Writ Petition (Civil) No. 6629 of 2005 is still
pending disposal in the High Court of Judicature Bombay,
Nagpur Bench and the said High Court did not take up the writ
petition for final disposal as the issue with regard to excess
amount over and above Notified Price paid prior to passing of
the order dated 4.7.2005, i.e. from the date on which E-auction
Scheme came to the existence is pending consideration before
this Court. He further submitted that since now this Court has
disposed of the said issue, there should be a direction to the
concerned High Court to dispose of the aforesaid writ petition
as expeditiously as possible.
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12. Mr. Anip Sachthey, the learned counsel appearing for the coal
company during the course of his submission submitted that
they have paid the amount which became refundable to all the
claimants who are entitled to receive it inclusive of interest in
fixed deposit calculated up to 30.4.2008 as the fixed deposit
receipts were time bound and, therefore, a fixed date was
taken for calculation of the interest which was 30.4.2008. He
also submitted that whatever interest is due and payable to the
applicants have already been paid while refunding the amount
due and payable to the applicants. He further submitted that
the coal company has no objection if a direction is issued to the
Bombay High Court, Nagpur Bench for early disposal of the
aforesaid writ petition for according to him the issues raised in
the said writ petition would now be governed and covered by
the decision of this Court.
13. While considering the aforesaid submissions in the light of the
pleadings of the parties we find that the area of controversy
and the dispute between the parties, as highlighted in the
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present application, lie in a very narrow compass for during the
course of arguments Mr. Sachthey, learned counsel for the
respondent coal company has fairly stated that the coal
company cannot have any objection to pay the interest accrued
on the amount payable to be computed up to 28.6.2008 when
the amount came to be actually refunded to the applicants. We
also find justification in the claim of the applicants for the
respondent coal company had agreed to refund the amount, if
later on found to be due and payable with interest till the date
when it is actually refunded. In fact that was also the intention
of the order passed by this Court when the interim order to that
effect was passed. We may point out that though the applicant
in the application stated that the amount was refunded on
25.7.2008 but however during the submissions it was agreed
that the same was refunded on 28.6.2008
14. According to us, since the applicants were refunded the extra
amount deposited by them only on 28.6.2008 they are entitled
to receive interest computed and calculated up to 28.6.2008
and not till 30.4.2008, for which there is no basis at all. Interest
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is payable on the amount found due and payable on the ground
that the concerned person is deprived of the benefit of the
aforesaid amount which is otherwise due and payable to it.
The intention is to compensate the concerned person for being
deprived of utilizing the money for the period during which he
was unable to utilize the amount. Similarly, the extra amount
which was paid by the applicants was invested in the fixed
deposit receipt pursuant to the order of this Court.
15. There is an apprehension in the mind of the applicants that the
entire interest accrued on the said FDR, is not paid to the
applicants. In that view of the matter, we are of the considered
opinion that whatever interest was received by the coal
company as against the FDR made on the amount deposited
by the applicants towards extra amount charged, and not
covered by the directions issued in the preceding paragraph
may be paid back to the applicants. The aforesaid aspect
could be settled between the parties if the coal company
provides to the representatives of the applicants the statement
of the bank indicating the interest that actually accrued and was
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paid on the aforesaid FDR to the Respondent – Company,
which was made against the extra payment made by the
applicants.
16. We are also of the considered opinion that since this Court has
finally pronounced the judgment and order on 1.12.2006 in
respect of the challenge to the Scheme of E-auction and
passed consequential orders thereof, the writ petition filed and
registered as Writ Petition (Civil) No. 6629 of 2005 could now
be disposed of by the Bombay High Court, Nagpur Bench.
Consequently, we pass the following directions in terms of the
discussions and observations made hereinbefore :
I. the respondent coal company shall now pay interest at 12% per annum in
terms of order of this Court dated 12.12.05 on the extra amount which
was refunded in terms of the claim of the applicants calculating and
computing the same till 28.6.2008 when the said amount was actually
refunded to the applicants and not till 30.4.2008 as has been done by the
applicants.
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II. The respondent-Company shall make available to the representatives of
the applicants statement of the bank indicating interest accrued on the
FDR created as against the extra amount paid by the applicants and not
covered by the directions issued in the preceding paragraph.
III. We also issue a direction to the Bombay High Court, Nagpur Bench now
to take up the Writ Petition (Civil) No. 6629 of 2005 for consideration and
disposal as expeditiously as possible. It is needless to say that all the
contentions relating to the issue of extra amount over and above the
Notified Price, that is to say, difference between average E-auction and
Notified Price in cash and the issues relating to validity of Scheme of E-
auction shall be decided in terms of the decision of this Court those are
covered and governed by the said decision. If, however, any other and
additional contentions are raised in the writ petition and pleadings of the
parties which are not covered by the issues decided by this Court, the
same shall be decided by the High Court as expeditiously as possible and
according to law.
15. All the applications and contempt petitions stand disposed of in terms
of this order.
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...........................................J. .
[S.B. Sinha]
...........................................
J.
[Dr. Mukundakam Sharma]
New Delhi
February 27, 2009
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