Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2024
(Arising out of SLP(Civil) No(s). 34194 of 2016)
2024 INSC 133
M/S. DOMCO SMOKELESS FUELS PVT. LTD. .….APPELLANT(S)
VERSUS
STATE OF JHARKHAND AND ORS. …..RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Leave granted.
2. The appellant has approached this Court seeking to assail
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the order dated 17 March, 2016 passed by the learned Single
Judge of the High Court of Jharkhand whereby the contempt
application preferred by the appellant alleging non-compliance of
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order dated 22 September, 2008 passed by the learned Single
Judge of the High Court in Writ Petition (Civil) No. 3040 of 2005
was dismissed.
3. The appellant claims to have paid a higher price than the
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2024.02.22
17:01:55 IST
Reason:
notified price in an e-auction conducted by the respondent,
towards lifting of consignments of coal. After the coal had been
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lifted, the appellant and other similarly placed companies sought
refund of the price paid by them over and above the notified price.
4. However, the prayer for refund was not acceded to, upon
which the appellant instituted Writ Petition (Civil) No. 3040 of 2005
before the Jharkhand High Court claiming refund of excess price
paid by it over and above the notified price towards e-auction of
lifting of consignments of coal by the respondent Company.
5. Likewise, numerous other similarly situated aggrieved coal
consumers filed writ petitions before different High Courts across
the country. These writ petitions were transferred to this Court as
same involved substantial question of general importance.
However, the writ petition filed by the appellant was not
transferred and remained pending before the Jharkhand High
Court.
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6. The issue was adjudicated by this Court vide order dated 30
October, 2007 in the case of Somal Pipes Pvt. Ltd. v. Coal India Ltd.
& Ors. , (Transfer Petition (Civil) No. 100 of 2006). The learned
Solicitor General of India made a statement before this Court on
behalf of the respondents that the difference of price paid by the
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party from the period running from 12 December, 2005 to 1
December, 2006 shall be refunded.
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7. In view of the above development, the appellant filed an
Interlocutory Application No. 4 of 2008 in the pending writ petition
seeking a direction to refund of excess price paid over and above
the notified price for the period running between January, 2005
till October, 2007 along with 12% interest per annum.
8. Learned Single Judge allowed I.A. No. 4 of 2008 vide order
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dated 22 September, 2008 and directed as follows: -
“We, while accepting the apology tendered by the alleged
contemnors, direct as under:
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
between the amount paid and the amount notified, by
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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.
In view of the aforementioned directions, personal
appearance of the alleged contemnors is dispensed with
till further orders. Post this matter for further orders, if
any, on 8th January 2008.”
Learned counsel for the petitioner submits that in the light of the
above direction of the Apex Court, the petitioner is entitled to
refund of the excess payment made by the petitioner over and
above the notified price.
Considering the above facts and circumstances, in terms of the
above stated order of the Apex Court, the petitioner shall, furnish
all requisite documents if not already furnished, to the counsel for
the respondents, showing actual payments made to any of the
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subsidiaries, to enable assessment in proper perspective
regarding the actual payment of money made, if any, by the
petitioner over and above the notified price. After making final
assessment in this regard, the parties shall sit together and decide
all the issues relating to refund of the excess amount and the
mode of refund of such amount, between themselves.”
9. However, the payment was not made despite the above order.
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Being aggrieved by the non-compliance of the order dated 22
September, 2008, the appellant filed Cont. Case (Civil) No.247 of
2010 before the High Court, beseeching the Court to initiate
contempt proceedings against the respondents. The Cont. Case
(Civil) No.247 of 2010 was disposed of by the High Court with a
direction to the respondents to refund the amount collected in
excess of notified price together with interest within a period of one
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month, vide order dated 29 May, 2010.
10. Being aggrieved by non-payment of the amount collected in
excess of the notified price along with interest, the appellant filed
Cont. Case(Civil) No. 403 of 2011 for the alleged breach of order
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dated 22 September, 2008 passed in Writ Petition (Civil) No. 3040
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of 2005 and order dated 29 May, 2010 passed in Cont. Case(Civil)
No. 247 of 2010 by the High Court of Jharkhand.
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11. The Cont. Case(Civil) No. 403 of 2011 was dismissed by the
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High Court of Jharkhand vide order dated 17 March, 2016, which
has been assailed in the present appeal.
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12. It is admitted that for the period between 12 December,
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2005 to 1 December, 2006, the excess amount has been refunded
to the appellant. However, the issue regarding the interest payable
on the refund amount survives.
13. As per the response in the High Court, the respondents
claimed to have refunded an amount to the tune of Rs. 30,80,022/-
to the appellant as against the claim of Rs. 65,93,538/- which, as
per the authorities, includes the interest towards the period from
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1 January, 2005 to 11 December, 2005.
14. The appellant, however, disputes the claim of the
respondents that the amount has been paid towards full
compliance of the orders passed by the High Court and this Court.
It is also asserted by the appellant that refund of excess amount
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for the period between 1 January, 2007 to March, 2008 is still
pending.
15. Learned senior counsel representing the appellant drew our
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attention to the order dated 12 December, 2005 passed by this
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Court in a matter involving same controversy in the case of
Ashoka Smokeless Coal Industries(P) Ltd. and Ors. v Union of
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India & Ors. , to be specific, para 8 wherein following
observations/directions were passed:-
"8. It is pointed out that in respect of some entities, coal was being
supplied at the notified price enhanced by 20% thereof and this
would be a guide for fixing the percentage of the excess price to be
paid by the petitioners. It is pointed out that enhancement of the
notified price only by 20% was in respect of very small consumers
and in respect of Central and State Agencies and that cannot form
the basis for supply of coal to the petitioners herein having a coal
linkage with the coal companies. 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 caused to them we also think it proper
to record the undertaking given on behalf of 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 petitioner concerned."
16. Learned senior counsel urged that this Court clearly directed
that the petitioner therein would be entitled to interest @ 12% per
annum on the refund amount. However, admittedly, the
respondents have refunded the excess amount to the appellant
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( 2006) 9 SCC 228
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after applying interest @ 3.5% per annum only, i.e., the bank rate,
which fact is highlighted from the affidavit filed on behalf of the
respondents in Contempt Case (Civil) No. 403 of 2011.
17. The averments to this effect made in para nos. 11, 12 and 13
of the said affidavit are extracted hereinbelow:-
“11. That thereafter this Contempt application was taken up for
hearing and the counsel appearing for the opposite parties
submitted that due to some confusion regarding rate of interest
the interest could not be paid however the principal amount has
been refunded. The Hon'ble Court therefore allow the opposite
parties time to calculate the interest at the bank rate and payment
be made thereof.
12. That thereafter the opposite parties by their letter dated
30.04.2012 requested their Banker namely the SBI, Bank More,
Dhanbad Branch to inform to them the banking rate of interest
prevailing during the year 2005 so that the order passed by this
Hon'ble Court in the case of the petitioner could be complied with.
13. That the SBI, Bank More, Dhanbad Branch by their letter
dated 30.04.2012 informed the opposite party that the banking
rate of interest has been 3.5 % with effect from 1.03.2003 and 4%
with effect from 3.05.2011.”
18. Learned senior counsel urged that the appellant is also
entitled to a direction for payment of interest on the amount as
well as on the refund due @ 12% per annum as against 3.5% per
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annum paid by the respondents for the period running from 1
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January, 2005 to 11 December, 2005 based on the above order
passed by this Court.
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19. He also drew our attention to the order dated 29 May, 2010
passed by the learned Single Judge of Jharkhand High Court in
Contempt Case (Civil) No. 247 of 2010, which was passed in
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relation to non-compliance of order dated 22 September, 2008 in
I.A No. 4 of 2008 in W.P. (C) No. 3040 of 2005, wherein the High
Court directed as below:-
“1. This application has been filed by the petitioner for intimation
of contempt proceedings against the Opposite Parties for wilful
disobedience and violation of the order dated 22.9.2008 passed
by this Court in a writ petition being W.P. (C) No. 3040 of 2005.
2. It appears that the aforementioned petition was filed by the
petitioner for a direction restraining the respondents-opposite
parties to charge or realize the price determined during E-auction
for the linked quantity of coal which was booked prior to E-auction
on the basis of scheduled price fixed by the respondents, but the
said booked and valued paid quantity of coal was not lifted. The
petitioner also prayed for a direction upon the respondents to
continue supply of linked quantity of coal to the petitioner’s unit
as per the notified price in terms of the order passed in C.W.J.C.
No. 2750 of 1997(R) as also the order passed by Supreme Court
in Civil Appeal No. 6317 of 1998. The writ petition was heard and
disposed of by learned Single Judge on 22.9.2008 taking into
consideration the earlier order passed in the writ petition and also
the direction issued by the Supreme Court. For better
appreciation, the relevant portions of the order passed in the writ
petition, which is the subject matter of this contempt proceeding,
are reproduced herein below:
“From the records, it appears that the present writ
application was filed originally challenging E-auction
proposed to be conducted by the respondent BCCL in
respect of linked quantity of coal with a prayer for a
direction to the respondent to release the price
determined during E-auction of the linked quantity of coal
in the light of the orders passed in CWJC No. 2750 of
1997(R) which was affirmed by the Supreme Court in
Civil Appeal No. 6317 of 1998.
Subsequently, on the allegation that the orders were
not complied with, petition was filed by the petitioner vide
I.A. No. 4 in Com Pet. (C) No. 138 of 2007 in C.A. No. 5324
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of 2006. While hearing all the contempt petitions together
in Transfer Petition (Civil) No. 100 of 2006, the Apex Court
had passed an interim order on 30. 10. 2007 in following
terms:
Let the amount deposited by the Coal India Ltd.
be invested on a short term fixed deposit for 60
days.
It is stated by the learned Solicitor General that
Mr. A.P. Singh, General manager (Sales) CCL,
has not been able to appear in Court today as
his father has expired. His personal
appearance is exempted.
The learned Solicitor General appearing on
behalf of the alleged contemnors tenders an
unqualified apology on their behalf. The
learned Solicitor General does not press the
other I.As. He also does not press the other
contentions raised in the affidavits of the
respective alleged contemnors.
It is submitted by the learned Solicitor General
that the amount paid by the petitioners, in
excess of the notified price shall be refunded to
them upon verification of the documents which
may be submitted in that behalf.
We, while accepting the apology tendered by the alleged
contemnors, direct as under:
(i). The petitioners shall furnish all document 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 between the
amount paid and the amount notified, by 12th
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.
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In view of the aforementioned directions, personal
appearance of the alleged contemnors is dispensed with
till further orders.
Post this matter for further orders, if any, on 8th January,
2008.
Learned Counsel for the petitioner submits that in
the light of the above direction of the Apex Court, the
petitioner is entitled to refund of the excess payments
made by the petitioner over and above the notified price.
Considering the above facts and circumstances, in
terms of the above stated order of the Apex Court, the
petitioner shall, furnish all requisite documents, if not
already furnished, to the Counsel for the respondents,
showing actual payments made to any of the
subsidiaries, to enable assessment in proper perspective
regarding the actual payment of money made, if any, by
the petitioner over and above the notified price. After
making final assessment in this regard, the parties shall
sit together and decide all the issues relating to refund of
the excess amount and the mode of refund of such
amount, between themselves.
This writ application along with the I.A. No. 4 of
2008 are disposed of with the aforesaid observations.”
3. From the order passed by the Supreme Court it is evidently
clear that the learned Solicitor General appearing before the
Supreme Court, admitted that excess amount was realized by the
respondent-Coal Company and, therefore, the said amount in
excess of the notified price shall be refunded to them upon
verification of documents. In the light of the order passed by the
Apex Court, the learned Single Judge directed the petitioner to
furnish all documents showing actual payment made to any of the
subsidiaries so that the amount in excess of notified price could
be refunded. Instead of refunding the said amount, now the
respondent-opposite party is taking a different stand that the
claim for refund of the amount pertaining to the period between
January, 2005 to April, 2008 is not tenable as the said amount
i.e., 13.4% was a part of notified price w.e.f. January, 2005. No
such stand was taken by the respondent-Coal Company before
the Supreme Court It cannot be disputed that the power of fixing
and notifying price was with the Ministry of Coal and the said
power was delegated to Coal India Limited. Hence, any amount
cannot be added with the notified price by the subsidiaries of Coal
India Limited inasmuch as those subsidiaries were never vested
with the power to add any amount in the notified price. It appears
that the matter before the supreme Court was in relation to the
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undertaking given with regard to refund of the amount deposited
by the Coal Company in excess of the notified price.
4. Recently a similar question arose with regard to refund of the
excess amount deposited by the Coal Company in a writ petition
before the Patna High Court being CWJC No. 6530/2009 and the
Patna High Court directed refund of the amount collected by the
Coal Companies in excess of the notified price.
5. In the light of the order passed by the Supreme Court and the
direction issued by this Court, the respondents-opposite parties
are bound to refund the excess amount with interest in excess of
the notified price collected by the Coal Companies from the
petitioner for the period in question. The stand taken by the
respondents in the show cause cannot be accepted.
6. In the facts and circumstances, although a prima facie case is
made out for initiation of contempt proceeding against the
respondents, but instead of proceeding further the respondents
are directed to refund the amount collected in excess of notified
price together with interest for the period in question within a
period of one month from today.”
20. Learned senior counsel pointed out that SLP(Civil) No. 21019
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of 2010 preferred by the respondents against the order dated 29
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May, 2010, has been rejected by this Court vide order dated 9
September, 2010.
21. He submitted that in this background, there was no option
for the respondents, but to comply with the orders passed by the
Jharkhand High Court and this Court. As these orders have been
wilfully disobeyed, appropriate directions deserve to be issued to
the respondents to make the payment to the appellant in terms
thereof.
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22. Learned counsel representing the respondents admitted that
the Jharkhand High Court has taken a view in favour of the
appellant Company in the very same litigation. However, his
submission was that identical claims had been raised by several
claimants in different High Courts, one of them being filed before
the High Court of Calcutta in APO No. 10 of 2011 wherein also, the
order of refund was passed in favour of the claimant Company on
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4 April, 2012. The said order has been challenged by the
respondent Company in SLP(Civil) No. 21888 of 2012 wherein this
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Court has granted stay vide order dated 9 August, 2012.
23. Thus, as per learned counsel representing the respondents,
learned Single Judge of the Jharkhand High Court was justified in
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rejecting the contempt application vide order dated 17 March,
2016 and denying the relief claimed by the appellant for refund of
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amount for the third period beginning from 1 January, 2007 till
March, 2008 and so also the issue of interest as the lis is sub judice
before this Court with a stay operating in favour of the respondent
Company in an analogous matter. On these grounds, he implored
the Court to reject the appeal filed by the appellant.
24. We have anxiously considered the submissions advanced at
Bar and perused the material placed on record.
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25. At the outset, we may note that the plea of respondents that
on account of pendency of SLP(Civil) No. 21888 of 2012 arising
from an order passed by the Calcutta High Court, the appellant
should be denied the rightful claim of refund of excess amount is
misconceived.
26. Suffice it to say that the claim of the appellant for refund
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pertaining to the third period, i.e. 1 January, 2007 till March,
2008 stands concluded with the rejection of SLP(Civil) No. 21019
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of 2010 vide order dated 9 September, 2010 passed by this
Court (supra) . Admittedly, the appellant has not been refunded the
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amount for the period running from 1 January, 2007 till March,
2008 and, therefore, the learned Single Judge was not justified in
discharging the respondents in the contempt case without
ensuring payment of the refund amount with interest to the
appellant herein.
27. The recourse taken by the learned Single Judge in the
impugned order to the pendency of the SLP before this Court,
arising from an order passed by the Calcutta High Court was
absolutely unfounded as the issue inter se between the parties
herein, has already been concluded by this Court.
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28. As a matter of fact, on going through the impugned order
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dated 17 March, 2016, we find that the learned Single Judge
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completely ignored the order dated 9 September, 2010 passed by
this Court in SLP(Civil) No. 21019 of 2010.
29. Regarding the issue of interest on the refund for the period
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running from 1 January, 2005 to 11 December, 2005, the
learned Single Judge rejected the claim of the appellant herein
holding the said demand to be exaggerated. While drawing such
inference, the learned Single Judge completely ignored the
judgment rendered by this Court in Ashoka Smokeless Coal
Industries(P) Ltd. and Ors. (supra) wherein a pertinent direction
had been given to make the refund of the excess amount with
interest @ 12% per annum. Admittedly, as per the affidavit filed
by the respondents(referred to supra), the interest which has been
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applied on the refund amount for the period between 1 January,
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2005 to 11 December, 2005 is at the bank rate i.e. 3.5% per
annum. Evidently thus, the respondents have failed to faithfully
comply with the orders passed by the Jharkhand High Court as
well as this Court.
30. As a consequence, it is hereby directed that the appellant
shall be entitled to interest @ 12% per annum on the refund
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amount for the period running from 1 January, 2005 to 11
December, 2005. The interest @ 3.5% per annum, already paid,
shall be deducted from the differential amount. The appellant
shall also be entitled to receive refund of the excess amount paid
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for the period between 1 January, 2007 till March, 2008 with
interest @ 12% per annum in the same terms as directed by this
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Court vide order dated 9 September, 2010. The amount as
directed above shall be paid to the appellant within a period of two
months from today failing which, the officers concerned shall be
made personally liable to pay the interest amount to the appellant.
31. The appeal stands disposed of. No order as to costs.
32. Pending application(s), if any, shall stand disposed of.
………………….……….J.
(B.R. GAVAI)
………………………….J.
(SANDEEP MEHTA)
New Delhi;
February 22, 2024
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