TMI Blog1995 (12) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by the consumer, namely the Company. It was further provided for in the agreement that in default of payment within the stipulated time, the payment was to be made with interest @ 18% per annum or at such other percentage as would be fixed by the Board from time to time. The Board revised the tariffs for the electricity supplied by its in 1980, 1982 and 1984. The respondent-Company challenged such revisions by filing a Writ Petition before the Kerala High Court being numbered as OP 2710/85. Similar Writ petitions were filed by other consumers challenging me upward revisions by the Board. All such Writ Petitions were heard along with the Writ Petition filed by the respondent-Company. The Kerala High Court by common judgment dated December 19, 1985, struck down the revisions of tariff by the Board. The respondent-company and other consumers were, therefore, entitled to the refund of excess amount on account of the payment of revised tariffs. The High Court of Kerala directed that such amount paid in excess would be adjusted towards future bill to be issued by the Board. The Board, thereafter, moved this Court by filing Special leave petitions inter alia challenging the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent was justified in not making payment of amounts which became due after December 19, 1985. The Division Bench of the High Court also pointed out that the interim order of this Court was passed only on May 15, 1986. In the aforesaid circumstances, it could not be contended by the appellant-Board that the respondent-Company had not complied with the directions of this Court. It could not also be contended, therefore, that the responder-Company had defaulted in payment of 50% of the future bills as directed to be paid by this Court. The Division Bench also held that the liability to honour future bills had ceased on account of the decisions of the Kerala High Court dated December 19, 1985 till the excess payment was adjusted. It was also indicated by the Division Bench that even before such adjustments had been fully made, this Court passed interim order and the respondent-Company had complied with such interim the respondent-Company had complied with such interim order. The Division Bench, therefore, held that there was no enforceable demand after the decision of the Kerala High Court and the interim order passed by this Court. The Division Bench agreed with the view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing down the upward revisions of tariffs and subsequently when interim order passed by this Court during the pendency of the special leave petitions inter alia regulating a scheme of adjustment between the Board and the respondent-Company on the basis of the decision of the Kerala High Court was subsisting, no liability had accrued for the respondent-Company to make payment on the basis of the revised tariffs. Accordingly, question of payment of interest on such unpaid amount also does not arise. Mr. Poti has submitted that the Kerala High Court has failed to appreciate that the validity of upward revisions of tariffs was finally decided by this Court by disposing of special leave petitions after setting aside the decision of the Kerala High Court that such upward revisions of tariffs were illegal. The interim order by this Court while the special leave petitions were pending for final disposal, was made to safeguard the interest of the parties because the respondent-Company was keen to get back the alleged over payment on account of bills calculated on the basis of revised tariffs since struck down by the Kerala High Court. This Court therefore, subject to the final decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e holders, however executed decree of payment of principal with interest and received the money decreed in its favour. Ultimately, the Privy council allowed the appeal and in terms of such decision of the Privy Council, it was ordered mat the judgment of the Courts below should be reversed and an order of non suit should be entered. In the order passed on the basis of ultimate decision of the Privy Council there was however no specific direction for refund of the entire amount which also included the interest on the principal since realised by the plaintiffs by executing the decree. The defendant thereafter applied for restitution and the Supreme Court of Hongkong held that it had power to direct for payment of all sums and costs that had been paid under the judgment to the plaintiffs but it had no power to order for payment of any interest upon any part of the sum paid over by the defendants to the plaintiffs. In the aforesaid facts, the question which came up for consideration before the Privy Council was whether the Court of Hongkong had or had not the power to order for payment of interest and, if so, whether in this case it was proper to exercise this power? The Privy Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Mr. Poti has also referred to a Full Bench decision of the Madras High Court in Pappy Reddiar v. P.S.V. Rm Ramanatha lyer AIR 1963 Madras 45).. The Madras High Court has held that the restitution conceived in the light of doing justice between the parties will necessarily have to depend on the circumstances of each case and cannot be reduced to the form of inflexible rule that the Courts should have regard only to the detriments suffered by one party and not to the position of the other. The granting of restitution under Section 144 of the Civil Procedure Code should be consistent with justice to both the parties. Where a sum of money is deposited in Court to answer a decree but a restriction is placed to the unconditional withdrawal of the same in terms of the decree by reason of which decree holder is either unable or unwilling to obtain the use of the money, it cannot be taken as invariable rule in such a case that the decree holder should pay interest on the amount lying in Court on the reversal of the trial court's decree in appeal. Mr. Poti has submitted that in the instant case, the Company had enjoyed the fruits of erroneous decision in its favour inasmuch as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest claimed @ 8%, must be set aside by indicating that the Board is justified in making such claim and the respondent-Company has liability to pay interest @ 18% on the unpaid portion of the bill for the entire period when the amount became due till such date when the principal amount on account of revised tariff has been paid. Mr. Dholakia, learned senior counsel for the respondent, has, however, disputed the contentions of Mr. Poti. He has contended that the Company had challenged the validity of upward revisions of tariff before the High Court by filing writ petition and on contest, such writ petition was allowed by striking down the upward revisions of tariff. The Board's appeal against such decision was also dismissed by the Division Bench of the High Court. The Board thereafter filed special leave petition before this Court. Although such special leave petition was entertained by this Court, this Court was also not inclined to stay the operation of the impugned judgment of the High Court. On the contrary, proceeding on the footing that in view of the impugned judgment of the High Court, the appellant Board was under obligation to refused the entire excess amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as defaulter and the proceedings of the collector based on the certificate issued by the I.T.O. would be held as illegal. Mr. Dholakia has submitted that even if the Company has a liability to pay on the basis of revised tariffs, since upheld by this Court, it will not be correct to contend that such liability was enforceable from the dates of revisions of tariff and on such premises, the Company may be held defaulter in payment of excess amount flowing from revisions of tariff and consequently incurring a liability to pay interest on such excess amount, After the High Court struck down the upward revisions of Tariff, no claim on such revisions could be made and a consumer had also no liability to pay on the basis of revised tariffs. It was only when this Court had finally decided the question of validity of revisions of tariff in favour of the Board, the liability to pay revived only prospectively from the date of the decision of this Court and not from any earlier period. Mr. Dholakia has submitted that as already indicated, this Court did not pass any interim order of stay of operation of the impugned judgment of High Court so that there was any occasion to proceed on the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. But after the decision of this Court upholding upward revisions of tariffs, the Board's entitlement to draw bills on the basis of upward revisions and consequential enforceability of payment of such bills by the consumers revived with full force. Hence, it would not be correct to contend mat although the company or for that matter other consumers were required to pay on the basis of revisions of tariffs from the dates when such revisions became effective, liability for such payment would accrue only from the date of pronouncement of the judgment by this Court upholding upward revisions and not from any date prior to that. If the upward revisions or held as valid, enforceability of such upward revision being consequential to such revisions, though it had remained unenforceable for some period on account of the decision of the High Court, can not but revive from the dates of upward revisions. There is no manner of doubt it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. The principle of restitution as enunciated by the Privy Council in rodger's case (Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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