TMI Blog2010 (11) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment of this Court upholding the upward revision and not from any date prior to that. This Court held that once the upward revision was found to be valid and enforceable such revision would be effective from the date the revision was made, no matter such revision had remained unenforceable for some period on account of the decision of the High Court. It is quite evident that this Court had upheld the claim for payment of interest @ 18% p.a. primarily because of the stipulation contained in the tariffs/agreement executed between the Board and the consumer providing for payment of interest at that rate in the event of delay in the payment/discharge of the bills raised against the consumer. It is not as though this Court had refused to enforce the stipulation contained in the tariffs providing for recovery of interest from the consumer if the latter failed to pay the amounts within the time stipulated - The very fact there was during the intervening period an erroneous decision of the High Court obliterating the revision in full or in part would make little difference in so far as the liability to pay the amount under the revised tariffs was concerned. So also the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay in the payment of the outstanding dues. Far from lending any assistance to the appellant-company the decision squarely goes against it and has been correctly appreciated and applied by the High Court. Appeal dismissed. - 2011 AIR 538, 2010 (14) SCR 900, 2011 (1) SCC 216, 2010 (12) JT 554, 2010 (12) SCALE 161 - - - Dated:- 18-11-2010 - Markandey Katju And T. S. Thakur, JJ. JUDGMENT T. S. Thakur, J. 1. These appeals by special leave arise out of an order dated 6th June, 2002 passed by the High Court of Andhra Pradesh whereby Writ Petitions No.9081 of 1999 and 13458 of 1993 filed by the appellant have been dismissed and the demand for additional charges/surcharge payable on the delayed payment of outstanding electricity dues raised under Clause 32.2.1 and 34 of the Terms and Conditions of supply (TCS) upheld. Facts necessary for the disposal of these appeals may be summarised as under: 2. The appellant is a public limited company engaged in the manufacture of Ferro Silicon. The industry set up by the appellant is energy intensive in as much as it consumes approximately 10,000 units of electricity for every ton of Ferro Silicon produced. The appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make it clear that because of the High Court's order dated 13.4.1985, for a couple of months, there was no such orders in regard to future payments and the Electricity Board has received the dues at the enhanced rates in lump sum from some of the consumers. There will no question of refunding the amounts back to these consumers. The bank guarantee already furnished by the petitioners/appellants will be kept alive from time to time and will cover all the differences including the future difference. 4. It is not in dispute that the above order was modified subsequently in respect of the bills issued from 16th March, 1990 onwards. The appeals, eventually failed and were dismissed by this Court by an order dated 2 nd May, 1991. In I.As. filed by the appellant post- dismissal of the appeals, this Court passed an order on 9th May, 1991 to the effect that the appellants could after paying outstanding 50% of the amount due under the subsisting bank guarantee make representation to the Board for payment of the balance amount in instalments keeping in view the circumstances and the hardships in each individual case. Consequently, the appellants made a representation to the Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala State Electricity Board v. MRF Limited (1996) 1 SCC 597 and Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board (1997) 5 SCC 772 were of no assistance to the appellants. The High Court noted the factual background in which the said decisions were rendered and found that in cases before it there was no justification for nullifying the effect of the Clauses 32.2.1 and 34 of the T.C.S. 7. Appearing for the appellants Mr. Sudheer Chandra Agarwal, learned senior counsel, strenuously agued that the High Court had fallen in error in declining relief to the appellant which according to the learned counsel was due to it on the analogy of the orders of this Court in Kerala State Electricity Board's case (supra). It was submitted that in the light of the decision of this Court in Kerala State Electricity Board's case (supra) the appellant-consumers could not be said to be in default of payment of the outstanding amount during the period the interim order passed by the High Court in its favour had remained operative. It was further contended that this Court had in the above case and in Kanoria Chemicals's case (supra) dealt with a similar fact situation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions subject to which energy was supplied to MRF the consumer in that case. It would not, therefore, be correct to apply the tariff conditions relevant to that case to the case at hand where such conditions are materially different. It is on the contrary necessary to cull out the principle of law settled in the said case for application to the case at hand. This may require recapitulation of a few facts in the backdrop whereof the decision in the Kerala State Electricity Board's case (supra) was delivered. 11. MRF was engaged in manufacturing automobile tubes and tread rubber in the State of Kerala. The company entered into an agreement with the Kerala State Electricity Board for supply of power to the factory set up by it. The agreement contained a provision for payment of power and energy supplied to the company by the Board within 15 days from the date of the receipt of the invoice by the consumer-company. The agreement further provided that in the event of a default in the payment of the amount within the stipulated period, interest @ 18% p.a. or at such other rate as may be fixed by the Board from time to time would be chargeable. 12. The Board revised the tariff f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis thereof after the judgment of the High Court of Kerala till the said decision was reversed by this Court, yet no sooner the decision of this Court upheld the upward revision of the tariffs, the Board's entitlement to draw bills on the basis of the revisions and consequently enforce payment of such bills by the consumers revived with full force. This Court repelled the contention that the liability to pay the revised tariffs accrued only after the pronouncement of the judgment of this Court upholding the upward revision and not from any date prior to that. This Court held that once the upward revision was found to be valid and enforceable such revision would be effective from the date the revision was made, no matter such revision had remained unenforceable for some period on account of the decision of the High Court. The following passage from the decision of this Court is in this regard apposite: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs to which the consumer- company had agreed. The Court observed: The Company is an ongoing business concern and must have utilised the money, saved on account of the decision of the High Court, gainfully in its commercial activities. Similarly, other consumers have gainfully utilised the amount saved for being not required to pay on the basis of revised tariffs. The Board had to suffer financial loss because of the said erroneous decision of the High Court. In the aforesaid circumstances, it will be lawful, conforming to equity and well-established principle of restitution for the Board to claim interest at 18% on the unpaid portion of the Bill drawn on the basis of revised tariffs. The Company had agreed to pay interest at 18% on the bills if not paid when it became due and payable. 18. It is quite evident that this Court had upheld the claim for payment of interest @ 18% p.a. primarily because of the stipulation contained in the tariffs/agreement executed between the Board and the consumer providing for payment of interest at that rate in the event of delay in the payment/discharge of the bills raised against the consumer. It is not as though this Court had refused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The interim order may not even prevent a prudent party from paying the charges according to the revised tariffs if it does not propose to take any chance and suffer recovery of an additional amount on account of the non-payment of the dues by the date stipulated for the purpose. We may in this regard refer to the following observations of this Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association CSI Cinod Secretariat, Madras 1992 (3) SCC 1: While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. 21. Suffice it to say that the decision of this Court in Kerala State Electricity Board's case (supra) doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been raised before this Court in Adoni Ginning Factory's case (supra). This Court observed: ..............We, therefore, agree with the High Court that Adoni Ginning1 cannot be read as laying down the proposition that the grant of stay of a notification revising the electricity charges has the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them even when their writ petitions are dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, is yet deprived of the late payment surcharge which is due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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