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2015 (11) TMI 1005 - SUPREME COURT

2015 (11) TMI 1005 - SUPREME COURT - TMI - Applicability of Limitation Act - Whether the Limitation Act, 1963, particularly Section 3 and the Schedule will apply to any action instituted before the Commission under Section 86(1)(f) of the Electricity Act, 2003? - Whether the impugned order passed by APTEL permitting application of principles emerging from Section 14 of the Limitation Act, is against Law so as to warrant interference? - Held that:- A claim coming before the Commission cannot be e .....

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respect of its other powers or functions which may be administrative or regulatory.

In the light of above there can be no difficulty in appreciating that M/s. LANCO rightly appreciated the hurdle of limitation in its way when such an objection was taken by the appellant and it rightly chose to seek exclusion of the period it was pursuing arbitration proceeding before the High Court, on the basis of principles underlying Section 14 of the Limitation Act.

Having considered su .....

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explanation (a) to sub-section (3) of Section 14 of the Limitation Act which reads as follows:

"Explanation - For the purposes of this section, -

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted."

The same conclusion is inevitable even on other relevant facts. The appellant had notice of the arbitral proceeding and after judgment in Guj .....

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imitation Act fails.

Claim for reimbursement of MAT - Held that:- The claim of the appellant that liability of MAT is on account of change in Law and therefore required M/s. LANCO to adopt the procedure for making claims under Article 11.4 of the PPA does not appeal to us. The entire stipulation in Article 11.4 of the PPA is in respect of additional or reduced expenditures or costs which have not been catered for and arise later due to change in Law. The burden on account of income ta .....

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also considered other relevant provisions of the Income Tax such as definition of income, total income, tax and find that they do not help the case of the appellant in any manner. Section 2(43) defines 'Tax' to mean income tax chargeable under the provisions of Income Tax Act and 'Total Income' has been defined with reference to Section 5 which enlarges the scope of total income not only to income received or accrued but also deemed to be received or deemed to be accrued in India (for a residen .....

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of 2012, C. A. Nos. 6061 of 2012; 6138 of 2012; 9304 of 2013 and 6835 of 2015 - Dated:- 16-10-2015 - Vikramajit Sen And Shiva Kirti Singh, JJ. For the Petitioner : Mr. A. Subba Rao, Adv. Ms. Suadha Shankar, Adv. Mr. Rakesh K. Sharma, Adv For the Respondent : Mr. Sakya Singha Chaudhuri, Adv JUDGMENT Shiva Kirti Singh, J. 1. The leading matter - C.A.No.6036 of 2012 as well as C.A.No.6061 of 2012 are statutory appeals arising out of a common order dated 2.7.2012 passed by Appellate Tribunal for Ele .....

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harges and in the other appeal for Minimum Alternate Tax (MAT) for 2001-2005 have been remanded for a follow up order by the Commission on the actual claims and interest. In respect of MAT, a concession on merits was recorded in respect of period 2006-2009 and for the earlier period (2001-2005) the contest was confined only to issue of limitation, as evidenced by Original Order of Commission dated 13.6.2011. Hence, through a SLP leading to C.A.No.6835 of 2015, the Appellant has chosen to make a .....

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between the same appellant and respondent in all these appeals, they have been heard together and shall be governed by this common judgment. Unless otherwise indicated the facts have been noted from the records of the main matter, i.e., C.A.No.6036 of 2012. 2. Instead of merits of bills raised by M/s. LANCO for capacity charges the issue of limitation has assumed greater significance and has thrown up two important points. First, whether the Limitation Act is applicable to a claim before the Co .....

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ll stand rejected if APTEL's order on the issue of limitation is reversed, otherwise such claim for the aforesaid period as well as for later period upto 2012 will be governed by the present judgment on the issue of legality and admissibility of claim for MAT. 3. Before adverting to the issues noticed above and the rival contentions, it will be useful to notice the essential facts relevant for deciding the issues. M/s. LANCO is engaged in the generation and sale of electricity. Its Registere .....

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procurement of power for the Distribution Companies. In the first phase of power sector reforms, Andhra Pradesh State Electricity Board was unbundled into Generation and Transmission Corporation and subsequently the four Distribution Companies were notified by the Government on 31.3.2000 on account of unbundling of the Transmission Corporation in the subsequent phase of reforms. 4. There is no dispute between the parties that the erstwhile A.P. State Electricity Board had invited bids for short .....

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ed 25.10.2000 as the date of commissioning of their project but this was not accepted as the Commercial peration Date (COD) by APTRANSCO. However, M/s. LANCO continued to generate power and delivered it to grid. It raised bills from 19.9.2000. While the charges for the energy delivered were accepted, the bill for capacity charges was disallowed on the ground that it was not in accordance with the PPA. On 8.9.2003 M/s. LANCO issued a notice of arbitration under Article 14 of the PPA. There is som .....

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ion required by Article 14.1. It requested the other side to designate their representative and to intimate the date and venue of the meeting. The appellants through a letter dated 25.11.2003 designated their Chief General Manager to act as their representative but the meeting scheduled could not take place. On 26.3.2004, M/s. LANCO issued another notice for arbitration and intimated the name of Justice B.P. Jeevan Reddy as its arbitrator. Through a letter dated 8.4.2004, APTRANSCO raised variou .....

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ved through arbitration. APTRANSCO contested the maintainability of arbitration proceedings on various grounds including Section 86(1)(f) of the Electricity Act, 2003. While the matter before the High Court was still pending, the scope and effect of Section 86(1)(f) of the Electricity Act was decided by a judgment of this Court dated March 13, 2008 in the case of Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. (2008) 4 SCC 755. This Court held that all disputes between the licencee such as the .....

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it decides to refer the disputes to arbitration. This Court further clarified that except the power of appointing arbitrator getting shifted to the State Commission, conduct of arbitration even under Section 86(1)(f) of the Electricity Act would be governed by provisions of the Arbitration and Conciliation Act, 1996. Only in cases of conflict the Electricity Act would prevail. 6. In view of law settled by the judgment in the case of Gujarat Urja (supra), the Arbitration Application No.31 of 200 .....

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NCO preferred a reply in which Section 14 of the Limitation Act was invoked for seeking exclusion of time when the arbitration proceeding had remained pending with the High Court in the form of Arbitration Application No.31 of 2004. The Commission rejected the claim by order dated 13.6.2011 on the ground of limitation by holding that the time spent in the arbitration proceedings did not merit exclusion under Section 14 of the Limitation Act because it had not been pursued in good faith. M/s. LAN .....

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it got revived on account of common appellate order by APTEL dated 2.7.2012 and after the remand only a consequential order is required to be passed by the Commission. For other periods, the claim for reimbursement of MAT has been allowed in favour of M/s. LANCO. The Commission allowed the claim for the periods 2006-2009 and 2009-2012 on account of its earlier order in respect of similar claim in another case which elicited a concession by the counsel for the appellants, although in the written .....

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from 2001 to 2012. But in case the claim of MAT for 2001-2005 is held by us to be barred by limitation, it will not be considered on merits. 8. Appearing for the appellants, learned senior advocate Mr. V. Giri pointed out that in the impugned order under appeal APTEL has not considered the claim of capacity charges on merits and therefore this Court is not required to go into facts for deciding the merits of bills for capacity charges. On the issue of limitation he contended that there was no is .....

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preferring a claim before the State Commission. We have noticed that in para 28 of the judgment under appeal APTEL has noted that the appellant no.1 (M/s. LANCO) does not seriously dispute the fact that the Limitation Act would be applicable to the present case. But learned counsels have conceded that the issue whether Limitation Act is applicable or not is one of law and accordingly the parties have advanced detailed submissions on this issue. Hence we propose to consider these submissions also .....

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merits the claim for reimbursement of MAT is in contravention of relevant terms and conditions of the Power Purchase Agreement (PPA)? 10. At this juncture, relevant provisions or articles of PPA need to be noticed. They are as follows: "Article 3.8 - Claims for Taxes on Income Any advance Income tax payable for the Project in any month supported by a certificate of a chartered accountant approved by the Board (such approval not to be unreasonably withheld or delayed) shall be reimbursed by .....

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ompany is engaged solely in the ownership, design, financing, construction, operation and maintenance of the Project and will not include tax reimbursements of the previous year. 5.5. - Supplementary Bills For payments due to the Company for reimbursement of taxes on income, incentives or taxes and duties levied on generation and/or sale of electricity, payments for periods of political Force Majeure affecting either Party or Non-Political Force Majeure affecting the Board or any other adjustmen .....

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l for the same. This bill shall be payable by the Board within twenty-five (25) days of its presentation to the Board by the Company or at least five (5) days before the date on which the tax is required to be paid by the Company, whichever is later. 5.7 - Billing Disputes Notwithstanding any dispute as to all or any portion of any bill submitted by the company to the Board, the Board shall pay the full amount of the bill provided that the amount of the bill is based on (a) a meter reading that .....

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h respect thereto. If the resolution of any dispute requires the Company to reimburse the Board, the amount to be reimbursed shall bear interest at the Working Capital Rate applicable to the Board from the date of payment by the Board to the date of reimbursement. The Board may not dispute any amount after sixty (60) days following the Due Date of Payment therefor. 11.1 - Definition of Law For the purposes of this Agreement, "Law" means the constitution of India and any act, rule, regu .....

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nt legislature or Government Agency in India which is contrary to the existing accepted application or interpretation thereof, in each case coming into effect after the date of this Agreement, provision for which has not been made elsewhere in the Agreement. 11.4 - Additional/Reduced Expenditures or Other Increased/Reduced Costs due to a Change in Law or Change in Permits (a) Within sixty (60) days after the COD of the first Generating Unit or the end of any Tariff Year, the Company shall determ .....

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enced but for such changes in Law or Changes in Permits (taking into account the reasonable costs of financing of any capital improvement in the period prior to the COD of the first Generating Unit or, as the case may be, such Tariff Year), the aggregate economic affect of which exceeds the equivalent of Rupees three (3) crores per 100 MW or pro-rata for any part thereof during the period prior to the COD of the first generating unit and Rupees one (1) crore per 100 MW or pro-rata for any part t .....

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certification of the Company's independent chartered accountant and a reasonably detailed explanation of certification of any officer of the Company respecting the basis for such net economic burden increase. The amount of an net economic burden claimed by the Company shall be net of any insurance proceeds received in respect thereof. (b) Within sixty (60) days after the COD of the first Generating Unit or the end of any Tariff Year, if after accounting as provided in subsection (a) for the .....

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part thereof during the period prior to the COD of the first Generating Unit or Rupees one (1) crore per 100 MW or pro-rata for any part thereof, following the COD of the first Generating Unit, during any tariff Year, the Company shall provide to the Board results of such accounting together with a certificate of the Independent chartered accountant and the Board, in response thereto may notify the company of any proposed amendments to this Agreement required in its good faith judgment to put t .....

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account, all reasonable steps which may be taken by the Company to minimize such increased costs, shall be considered as increased costs for the purposes of this Article. (d) As soon as practicable during the period prior to the COD of the first Generating Unit or any Tariff Year after the Company becomes aware of any Change in Law or Change in Permits which could reasonably be expected to give rise to an increase/reduction in costs or reduction/increase in after-tax cash flow pursuant to paragr .....

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ent. If prior to the end of any Tariff year the Company demonstrates on the basis of a certification of its chartered accountant that any Change in Law or Change in Permits would result in the Company's being unable to meet its payment obligations to its lenders under the Financing Documents on a current basis, then in addition to the Company's right under sub-section (a) but notwithstanding the time period for exercising such rights specified therein, the Company shall be entitled to pr .....

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ments to this Agreement or alternative arrangements to implement the foregoing. If no such agreement has been reached within ninety (90) days after any meeting pursuant to Article 11.3(a), (b) or (d), as the case may be, the proposals of the Parties shall be submitted to the Independent chartered accountant referred to in paragraphs (a), (b) and (d), as the case may be. 14.1 - Informal Dispute Resolution (a) Each Party shall designate in writing to the other Party a representative who shall be a .....

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forts to attempt to resolve all disputes arising hereunder promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to any and all non-privileged records, information and data pertaining to any such dispute. 14.2 - Arbitration (a) In the event that any dispute is not resolved between the Parties pursuant to Article 14.1, then such disputes shall be settled exclusively and finally by arbitration. It is specifically understo .....

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such arbitration proceedings, which award shall determine whether and when termination of this Agreement if relevant shall become effective." 11. Although, we were taken through various other Articles of PPA but it is not imperative to reproduce all such provisions. Article 3.1 provides for capacity charge which is required to be computed as per Article 3.2 and is meant to be paid by the Board. This is in respect of the Cumulative Available Energy provided by the Project in respect of any t .....

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nsee on the Due Date of Payment. The supplementary bills are covered by Article 5.5. They cover different items and are required to be supported by supporting data. Such bills are also payable on the Due Date of Payment, except the supplementary bill for taxes on income which is to be submitted at least 30 days prior to the time when the income tax is required to be paid by the generating company. Such bill is payable by the Board within 25 days of presentation or at least 5 days before the date .....

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but under Article 11.4 which provides an altogether different procedure for making claim for additional costs by the company on account of any Change in Law etc. In this context it may usefully be noted that Article 1 of PPA contains definitions for the purposes of the agreement. Article 1.2 adopts definition of several terms as defined in the Indian Electricity (Supply Act) 1948 and set out in Schedule B to the Agreement. Article 1.4 contains various general provisions such as - unless the con .....

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he disputes between the licensees and generating companies and to refer any dispute for arbitration." He also referred to Section 94 which vests the Commission, for purposes of any inquiry or proceedings under this Act, with same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 in respect of various matters such as summoning and enforcing the attendance of any person and examining him on oath; discovery and production of any document etc; receiving evidence on aff .....

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he meaning of Sections 193 and 228 of the Indian Penal Code and it shall be deemed to be a Civil Court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973. Section 158 is a solitary provision in Part XVI which provides for arbitration under the heading "Dispute Resolution". According to Section 158, any matter directed to be determined by Arbitration, unless there is expressed provision to the contrary in the license of a licensee, shall be determined by su .....

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Mr. Giri is that in discharge of its functions to adjudicate all disputes between the licensees and generating companies and/or in referring a dispute to arbitration under Section 86(1)(f) of the Electricity Act, the Commission deserves to be treated as a substitute and therefore equivalent of civil court for the purpose of attracting the bar of limitation provided under the Limitation Act, 1963. According to him the law laid down by this Court that Limitation Act applies only to civil courts in .....

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tters arising purely out of contract like in the present case and not from the statutory provisions of the Electricity Act. He also advanced a supplementary or alternative submission that there is nothing in the Electricity Act, 2003 to restore to any party the right to sue for a cause which has already become barred by law of Limitation, rather under the mandate of Section 175 of the Electricity Act, the Limitation Act has to be given full respect as a law for the time being in force unless any .....

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that the Limitation Act, 1963 shall apply to arbitrations as it applies to proceedings in courts. It may however be noted here that in the case of PPN Power Generating Co. (P) Ltd. (supra) in para 65, the Court held that the Limitation Act would not be applicable in such matters for various reasons including Section 2(4) of the Arbitration Act which was extracted to highlight that sub-section (1) of Section 40, Sections 41 and 43 all in Part I of the Arbitration Act, would not apply to arbitrati .....

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ra), in Paragraphs 64 and 68, this Court was satisfied on facts itself that the principle of delay and laches was not attracted. Further, the provisions in the PPA in that case provided that the seat of Arbitration shall be in London and that alone made part I of the Arbitration Act inapplicable to the arbitration proceeding and ruled out applicability of Section 43 also. 17. Mr. Giri has placed considerable reliance upon a judgment by three Judges of this Court in State of Kerala v. V.R. Kalliy .....

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uld issue a notification making the provisions of the Act applicable to the recovery of "amounts due" from any person or class of persons to any specified institution or any class of institutions. The say of State Government and the State Financial Corporation was that the words "amounts due" will encompass time barred claims also. This Court placed reliance upon judgment of the Privy Council in the case of Hans Raj Gupta v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. AIR 1 .....

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edy without touching the right. But such submission did not cut any ice. Relevant provisions of the Kerala Act led to a conclusion that although the necessity of filing a suit stood avoided, the claim which coulde legally recovered was not enlarged. In para 16 this Court concluded thus : "......... An Act must expressly provide for such enlargement of claims which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts which have ceased to be lega .....

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tution. It expressed its views thus : "..... Moreover, such a wide interpretation of "amounts due" which destroys an important defence available to a debtor in a suit against him by the creditor, may attract Article 14 against the Act. It would be ironic if an Act for speedy recovery is held as enabling a creditor who has delayed recovery beyond the period of limitation to recover such delayed claims." In para 12 the Court referred to and relied upon judgment in the case of N .....

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said amount was payable. When a duty is cast on an authority to determine the arrears of rent the determination must be in accordance with law. ...." (emphasis added) 19. Mr. Giri referred to paragraphs 98 and 99 of the judgment in the case of Kihoto Hollohan v. Zachillhu 1992 Supp. (2) SCC 651 to highlight the attributes of a "Court" and those of a Tribunal and also the relevant tests which led the court to hold that the Speaker while deciding certain disputes is a Tribunal. Simi .....

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s as per Civil Procedure Code or the Criminal Procedure Code. The next case in this series is that of Brajnandan Sinha v. Jyoti Narain AIR 1956 SC 66. In this case it was found that the Commissioner appointed under the Public Servants (Inquiries) Act 1850 (Act 37 of 1850) is not a court within the meaning of the term under Section 3 of the Contempt of Courts Act. This view found favour largely because the Commissioner did not have the legal capacity under that Act to deliver "definitive jud .....

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tute a Court. (15) The Privy Council in the case of Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 AC 275 (A) thus defined 'Judicial Power' at p.295: "Is this right? What is 'Judicial power'? Their Lordships are of opinion that one of the best definitions is that given by Griffith C.J. in - Huddart, Parker & Co. v. Moorehead, (1909) 8 CLR 330 at p.357 (B) where he says: 'I am of opinion that the words 'judicial power' as used in S.71 of the .....

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n to this subject : "1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision; 2. Nor because it hears witnesses on oath; 3. Nor because two or more contending parties appear before it between whom it has to decide; 4. Nor because it gives decisions which affect the rights of subjects; 5. Nor because there is an appeal to a Court; 6. Nor because it is a body to which a matter is referred by another body. See Rex v. Electricity Commissioners 1924-1KB 17 .....

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53 SC 325 (E), where the test of a judicial tribunal as laid down in a passage from - Cooper v. Willson, 1937-2 KB 309 (F) at p.340, was adopted by this Court : "A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: - (1) The presentation (not necessarily orally) of their case by the parties to the dispute, (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by th .....

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bove referred to, was followed by this Court in - S.A. Venkataraman v. Union of India, AIR 1954 SC 375 (G), where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement. (18) It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision .....

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o be a civil court. On such reasonings the appellate authority under Section 41 of Tamil Nadu Shops and Establishments Act was held to be a court. One must notice here only that the judgment in the case of P. Sarathy (supra) has been considered in a recent judgment of this Court rendered by a Bench of two Judges in the case of M.P. Steel Corporation v. Commissioner of Central Excise (2015) 7 SCC 58. In this case it was held that although the Limitation Act including Section 14 thereof would not .....

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d not the very Section itself can apply to tribunals having attributes of Court, in M.P. Steel Corporation (supra) the Court analysed the precedents and the Limitation Act 1963. It concluded that a quasi-judicial Tribunal will suffer Limitation Act only as per the statutory scheme under which it is created and functions. On the other hand, on its own the Limitation Act is applicable in respect of proceedings before courts proper, i.e., courts as understood in the strict sense of being part of th .....

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at Puthanpurayil Aboobacker (1995) 5 SCC 5 was therefore held to be at variance with at least five earlier binding judgments and also at odd with a later judgment in the case of Consolidated Engg. Enterprises v. Irrigation Deptt. (2008) 7 SCC 169. The latter judgment was considered in detail because the three-Judge Bench examined the provisions of the Arbitration and Conciliation Act 1996 and held that provisions of Section 14 of the Limitation Act 1963 would be applicable to an application unde .....

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phs 44 and onwards a number of precedents were noticed as to the meaning and interpretation of the word "Court" and in paragraph 57 it was held that the word "Court" in Rule 29 of the Second Schedule of the Carriage by Air Act 1972 has been borrowed from the Warsaw Convention and had not been used in the strict sense as used in the procedural laws of this country. The word "Court" was, therefore, held to include the consumer forums. In para 58 it was reiterated that .....

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period of limitation is applicable for initiating action before the Commission, if this Court finds it necessary and in the interest of justice, then a reasonable period may be indicated by this Court for the aforesaid purpose. He hastened to add that such reasonable period can only be as an illustration and not as a fixed period. According to him, a reasonable illustrative period indicated by the court, in practical application, can vary from case to case as per facts of each case. He also cont .....

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pplicable to proceeding before the State Commission." He also placed reliance upon paragraph 65 which is as follows: "65. The submission of the appellant that the Limitation Act would be available in case the reference was to be made to arbitration, in our opinion, is also without merit. Firstly, the State Commission exercised its jurisdiction to decide the dispute itself. The matter was not referred to arbitration, therefore, the Limitation Act would not be applicable. Secondly, Secti .....

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ration agreement, except insofar as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder." 24. Mr. Sundaram placed reliance upon judgment in the case of M.P. Steel Corporation (supra) to support his submission that Limitation Act applies only to courts stricto-sensu and not to quasi-judicial tribunals. It may be noted here that the matter in M.P. Steel Corporation (supra) had arisen from proceedings under the Customs Act and hence in that .....

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required to be respected by the Commission on the ground that there is no provision in the Electricity Act conferring additional rights upon a party moving the Commission for relief so as to claim even such reliefs which stand barred by limitation before the Civil Court or even for arbitral proceedings. The other ancillary issue required to be answered is - whether by virtue of provisions of the Electricity Act 2003 the Limitation Act has been made applicable to an action before the Commission b .....

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eject a claim on the ground of limitation unless limitation is found to be applicable by virtue of the provisions of the Electricity Act 2003. According to him if Limitation Act does not apply, courts cannot import limitation and the exceptional cases where this Court has introduced principles of delay and laches relate to proceedings before quasi-judicial tribunals which are vested with discretionary or suo motu jurisdiction like revisional power; the other exception being courts having extraor .....

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ased) Edge v. Jarvis (1958) 2 All.ER 336. Since the principle noted above is well settled, the above authorities need not be discussed particularly when this Court has taken similar view in the case of Bombay Gas Co. Ltd. v. Gopal Bhiva 1964(3) SCR 709 and Hindustan Times Ltd. v. Union of India (1998) 2 SCC 242. In the latter case the issue under consideration was of delay in passing order levying damages under Employees Provident Funds and Miscellaneous Provisions Act, 1952. The Court distingui .....

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are for the ultimate benefit of the employees but there is no provision by which the employees can directly recover the due amounts. The power of recovery is vested in the statutory authorities to be exercised in the manner provided by the Statute and not by way of suit. 27. Mr. Bhushan also referred to some judgments in support of the principle that Statute of limitation only bars a remedy through ordinary suit and not a remedy provided under a special Statute such as the Industrial Disputes A .....

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a for the reason that such jurisdiction was always recognized and held to be a discretionary one. 28. Coming back to the issues relating to limitation, in view of law noticed above and for the reasons noted in M.P. Steel Corporation (supra), we respectfully concur and hold that by itself the Limitation Act will not be applicable to the Commission under the Indian Electricity Act 2003 as the Commission is not a Court stricto sensu. Further stand of the respondents that the Commission being a stat .....

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of M.P. Steel Corporation (supra), we have held above that by itself the Limitation Act is inapplicable to proceeding or action brought before the State Commission. However, the Electricity Act 2003 requires a further scrutiny to find out whether by virtue of Section 175 of the Electricity Act or otherwise it can be inferred that the provisions of Limitation Act will govern or curtail the powers of the Commission in entertaining a claim under Section 86(1) (f) of the Electricity Act. Section 175 .....

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w for the time being in force. In other words, as stated in the Section the provisions of the Electricity Act will be additional provisions without adversely affecting or substracting anything from any other law which may be in force. Such provision cannot be stretched to infer adoption of the Limitation Act for the purpose of regulating the varied and numerous powers and functions of authorities under Electricity Act 2003. In this context it is relevant to keep in view that the State Commission .....

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ention of Mr. Giri that there is nothing in the Electricity Act 2003 to create a right in a suitor before the Commission to seek claims which are barred by law of limitation merits a serious consideration. There is no possibility of any difference of opinion in accepting that on account of judgment of this Court in Gujarat Urja (supra) the Commission has been elevated to the status of a substitute for the Civil Court in respect of all disputes between the licencees and generating companies. Such .....

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the State to exercise enabling power under Section 84(2) to appoint a person who is/has been a Judge of a High Court as Chairperson of the State Commission. In such a situation it falls for consideration whether the principle of law enunciated in State of Kerala v. V.R. Kalliyanikutty (supra) and in the case of New Delhi Municipal Committee v. Kalu Ram (supra) is attracted so as to bar entertainment of claims which are legally not recoverable in a suit or other legal proceeding on account of bar .....

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e such claims in accordance with law. In our considered view a statutory authority like the Commission is also required to determine or decide a claim or dispute either by itself or by referring it to arbitration only in accordance with law and thus Section 174 and 175 of the Electricity Act assume relevance. Since no separate limitation has been prescribed for exercise of power under Section 86(1)f) nor this adjudicatory power of the Commission has been enlarged to entertain even the time barre .....

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ct creating a new right upon a claimant to claim even monies barred by law of limitation, or taking away a right of the other side to take a lawful defence of limitation, we are persuaded to hold that in the light of nature of judicial power conferred on the Commission, claims coming for adjudication before it cannot be entertained or allowed if it is found legally not recoverable in a regular suit or any other regular proceeding such as arbitration, on account of law of limitation. We have take .....

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also in the light of Article 14 of the Constitution. In that case the possibility of Article 14 being attracted against the statute was highlighted to justify a particular interpretation as already noted. It was also observed that it would be ironic if in the name of speedy recovery contemplated by the statute, a creditor is enabled to recover claims beyond the period of limitation. In this context, it would be fair to infer that the special adjudicatory role envisaged under Section 86(1)(f) als .....

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d or allowed if it is barred by limitation prescribed for an ordinary suit before the civil court. But in appropriate case, a specified period may be excluded on account of principle underlying salutary provisions like Section 5 or 14 of the Limitation Act. We must hasten to add here that such limitation upon the Commission on account of this decision would be only in respect of its judicial power under clause (f) of sub-section (1) of Section 86 of the Electricity Act, 2003 and not in respect o .....

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by APTEL permitting application of principles on Section 14 of the Limitation Act is in accordance with law or warrants interference now requires to be answered on the basis of law as well as facts. In law, the APTEL could grant exclusion of certain period on the basis of principles under Section 14 in view of law laid down or clarified in M.P. Steel Corporation (supra). On facts, although the parties have argued at length, we find no difficulty in holding that APTEL has adopted a just and lawfu .....

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s rightly not pursued further by Mr. Giri after some initial arguments. But since this issue was touched, we have looked at the entire Article 14 of the PPA as well as the notice dated 8.9.2003 and we find no difficulty in holding it as the notice for arbitration which amounted to initiation of arbitral proceedings as contemplated by Section 21 of the Arbitration Act. A spirited argument was advanced on behalf of appellant that after the judgment of this Court in Gujarat Urja (supra) on 13.3.200 .....

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by this Court in several judgments including M.P. Steel Corporation (supra). But the point requires no debate in view of clear stipulation in explanation (a) to sub-section (3) of Section 14 of the Limitation Act. This explanation reads as follows: "Explanation - For the purposes of this section, - (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted..........." .....

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der in respect of views taken on the issue of limitation in the light of principles of Section 14 of the Limitation Act fails. Issues relating to MAT 33. The notice of Arbitration dated 8.9.2003, inter alia, made a demand for reimbursement of income tax payment made by M/s. LANCO, as per Article 3.8 of the PPA. No doubt the claim on this head for the subsequent years was not and could not be in this notice but the difference between the parties on the issue had already arisen. In the notice clai .....

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of Claim as it may deem appropriate whenever the same is filed before the Arbitral Tribunal. Thus the issue whether MAT is covered by article 3.8 of the PPA was clearly covered by Arbitration notice. The filing of upto date claims through amendment or otherwise before the Arbitral Tribunal could not happen for the obvious reason that application under Section 11 of the Arbitration Act itself remained pending till 18 th March, 2009 before the High Court and thereafter before the Commission. 34. .....

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s barred by limitation. Thus the claim of MAT for entire concerned period that is from 2001-2012 will be covered by our decision on Merits of Claim relating to MAT. The argument of Mr. Giri that MAT cannot be covered by the provisions in Article 3.8 of the PPA providing for claims for taxes on income because the appellant had not foreseen such eventuality in view of the then prevailing tax regime under which income from such power projects stood exempted, is noticed only to be rejected. The enti .....

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mere book profits of even power generating companies. The argument that such tax is not on income from the project and therefore, not covered by Article 3.8 of the PPA is also found to be without any substance. 35. The objective of levying MAT, as declared by the Income Tax Department is to bring into the tax net "Zero Tax Companies" which inspite of having earned substantial book profits and having paid handsome dividends, do not pay any tax due to various tax concessions and incenti .....

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and from 1.4.1991 MAT became inapplicable because of deletion of Section 115J which was reintroduced with effect from 1.4.1997 by insertion of Section 115JA. But it was not made applicable to power generating companies till 31.3.2001. However, Section 115JA was withdrawn and Section 115JB was inserted with effect from 1.4.2001 to make MAT applicable to all targeted corporate entities including power generating companies. The submission on behalf of the appellant that Section 115JB is a tax not .....

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es not change the basic nature of the provision. It remains a provision under the Income Tax Act and what is levied is income tax on the assessment of income as per such a special provision. 36. Article 1.4 of the PPA provides inter alia that reference to any 'Law' shall be construed as a reference to such Law as from time to time amended or re-enacted. This general provision in our view is sufficient to take care of all the taxes on income under Article 3.8 of the PPA notwithstanding di .....

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n the manner required by the Agreement so that tax is only on the basis of income from the project. No such dispute has been raised in the present case. 37. The claim of the appellant that liability of MAT is on account of change in Law and therefore required M/s. LANCO to adopt the procedure for making claims under Article 11.4 of the PPA does not appeal to us for the aforesaid reasons. The entire stipulation in Article 11.4 of the PPA is in respect of additional or reduced expenditures or cost .....

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