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TMI Blog2019 (1) TMI 1906X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of 2016 for deciding the common questions of law involved in all these appeals. The facts and pleadings in other appeals shall also be briefly noticed. C.A. Nos. 8442-8443 of 2016 (M/s. Shanti Conductors (P) Ltd. and Anr. v. Assam State Electricity Board and Ors.) 2. The Appellant is a Private Limited Company which has been registered as a Small Scale Industrial Unit for manufacturing electrical conductors and/or wires at Kokrajhar, Assam. On 31.03.1992, the Respondent-Assam State Electricity Board placed an order for supply of Aluminium Electrical Conductors from the Appellants- M/s. Shanti Conductors Pvt. Ltd. for a total consideration of Rs. 1.22 crores. The supplies were to be made between June and December, 1992. On 13.05.1992, another order was placed by the Electricity Board to M/s. Shanti Conductors for the supply of various types of conductors for a total consideration of Rs. 32.49 lacs. The supplies of the aforesaid goods were to be made between January and February, 1993. On 23.09.1992, the President of India promulgated an ordinance, namely, the Interest on Delayed Payment to Small Scale Ancillary Industrial Undertakings Ordinance, 1992. Subsequently, on 02.04.1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1992. It held that interest under the Act would be calculated from 23.09.1992 till the payment is made to the supplier. The Board filed an appeal against the judgment of the Full Bench dated 05.03.2002 in this Court being C.A. No. 2351 of 2003 (Assam State Electricity Board and Ors. v. Shanti Conductors Private Limited and Anr.. The appeal filed by the Board was heard along with another C.A. No. 2348 of 2003 (Purbanchal Cables and Conductors Private Limited v. Assam State Electricity Board and Anr.) A two-Judge Bench of this Court decided both the appeals vide common judgment dated 10.07.2012 which judgment is reported in (2012) 7 SCC 462 (Purbanchal Cables and Conductors Private Limited v. Assam State Electricity Board and Anr.) The two-Judge Bench relying on earlier judgments of this Court held that suit for recovery of interest alone under the Act, 1993 is maintainable. It further held that the Act, 1993 has no retrospective application. It further held that the supplier has an accrued right to claim a higher rate of interest in terms of the Act only with regard to sale agreements entered after the date of the commencement of the Act i.e. 23.09.1992. After judgment of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that it has erred in recording that "all the bills were paid and cleared earlier to the commencement of the Act." The special leave petition is dismissed as withdrawn accordingly. 6. The Appellant filed Review Application No. 75 of 2001. The High Court vide its order dated 19.03.2013 partly allowed the review petition to the extent that the Appellant was held to be entitled to interest at the rate of 9% per annum for the period of delayed payment. The Appellant aggrieved by the said judgment has filed C.A. No. 8445 of 2016. C.A. No. 8448 of 2016(Assam State Electricity Board and Anr. v. Trusses and Towers (P) Ltd.) 7. The above appeal has been filed by the Board against the order in Review Petition No. 75 of 2001 filed by M/s. Trusses & Towers (P) Ltd. by which order the High Court has partly allowed the review petition to the extent that the Appellant was held to be entitled to interest at the rate of 9% p.a. as noted above. The Board aggrieved by the grant of interest of 9% p.a. has come up in this appeal. C.A. No. 8450 of 2016(M/s. Brahmaputra Concrete Pipe Industries v. Assam State Electricity Board) 8. The Board placed two supply orders dated 17.02.1992 & 17.03.1992 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed payments. A perusal of the statement of objects and reasons of the Act, the relevant portion of which has been extracted supra, makes it clear that the small scale industries were suffering as a result of lack of working capital, which was affecting the economic health of such industries. Prompt payment on the outstanding money, it was felt, that was the need of the hour. In this context, the provisions of Sections 3, 4, 5 of the Act, assume significance. More so in light of the fact that in the definition Clause of Section 2 of the Act, the legislature has not defined the words 'transaction' or 'supply order'. It chose to only give definition to the terms, inter alia, 'appointed day', 'buyer' and 'supplier'. Since the focus of the Act is on delayed payment, which is in consonance with the definition of the term 'appointed day' as well, there is no need to consider when the 'transaction' was entered into or the date of the 'supply order'. Section 3 of the Act clearly provides that the liability of the buyer to make payment accrues after the supplier supplies goods or renders any services to the buyer. Thus, what was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Board in this regard cannot be accepted. 12. It was further observed that this Court in Purbanchal Cables and Conductors (P) Ltd. did not consider the important aspect of the matter as to whether provisions of the Act are retroactive or not. Issue No. 1 and 2 were answered in favour of the Appellant. Other issues were also answered in favour of the Appellant. In paragraphs 56 and 57, the appeals were allowed by Justice Gowda in the following manner: 56. For the reasons stated supra, I answer the points framed in these appeals in favour of the Appellants as stated above. The appeals are accordingly allowed. All pending applications are disposed of. 57. In the Civil Appeals arising out of SLP (C) Nos. 9924-9925 of 2013, vide order dated 17.02.2015, the Appellants M/s. Shanti Conductors were directed to pay an amount of Rs. 38,70,000/- back to the Respondents. The Respondents shall refund the amount to the Appellants with 9% interest per annum within six weeks from the date of receipt of the copy of this Order. 13. Another Hon'ble Judge, Justice Arun Mishra who delivered separate opinion disagreed with the opinion of Justice Gowda. While disagreeing with the opinion of Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to and relied on the opinion of Hon'ble Judge allowing the appeal. He submits that the Act, 1993 was enacted as beneficial legislation to protect the small scale industries. The Act, 1993 focused on supplies and the date of the agreement for supply has no relevance. The Act applies and protect the suppliers in the event supplies have been effected subsequent to Act, 1993. Learned Counsel submits that even if the orders for supply were issued prior to 23.09.1992 some of the supplies have been made after the Act. The provisions of the Act are applicable and the Appellant was clearly entitled for interest on delayed payment. He submits that the contrary view expressed by this Court in Purbanchal Cables and Conductors Private Limited judgment does not correctly interpret the provisions of the Act, 1993. He submits that what is relevant is amount due to the suppliers and in event the amount due to supplier is subsequent to Act, 1993 the liability to pay interest on delayed payment accrues and is fastened on the buyer. 16. The Act was brought by an Ordinance. The Act applies on amount due not for any previous period prior to Act, 1993 but subsequent to enforcement of the Act, 1993. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. (2009) 7 SCC 673, Modern Industries v. Steel Authority of India Limited, (2010) 5 SCC 44, as well as judgment of this Court in Purbanchal Cables and Conductors Private Limited (supra) having held that Act has no applicability with regard to contracts entered into prior to enforcement of Act, the said law which is a settled law for a quite long time need not be unsettled by this Court. In view of the judgment of this Court in Purbanchal Cables, the appeal of the Appellant has rightly been dismissed by the Gauhati High Court. 21. Replying the submission of Shri Patil, Shri Hansaria submits that when the SLP by this Court was dismissed on 06.08.2001 against the judgment of the High Court dated 05.04.2001 allowing the appeal of the Board, this Court having not granted further liberty it is not open for the Appellant to file the appeal against the impugned judgment deciding review petition. 22. Shri Hansaria further submits that the Board has also filed appeal against the order of the High Court deciding the review petition wherein the High Court has granted 9% interest. Shri Hansaria lastly submitted that the interest if any can be claimed by the Appellant only till the date the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of only interest when admittedly entire principal amount was paid prior to filing of the suit can be said to be maintainable? (6) Whether appeal filed by M/s. Trusses and Towers Pvt. Ltd. challenging the review judgment dated 19.03.2003 cannot be entertained since no liberty was granted by this Court in SLP(C) No. 12217 of 2001 when the SLP filed against the main judgment of the High court dated 05.04.2001 was dismissed as withdrawn? (7) Whether the High court while considering the Review petition No. 75 of 2001 M/s. Trusses & Towers Pvt. Ltd. even after expressing that Act, 1993 is not applicable could have allowed 9% interest to the Plaintiff? 28. Before we consider the issues which have arisen in these appeals it is necessary to notice the provisions of the Act, 1993. In the Parliament, the Government of India made a policy statement on small scale industries. It was also announced that suitable legislation would be brought to ensure prompt payment of money by buyers to the small industrial units. An Ordinance, namely, the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Ordinance, 1992 was promulgated by the President on 23.09.1993. To re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t between the buyer and the supplier or in any law for the time being in force, be liable to pay interest to the supplier on that amount from the appointed day or, as the case may be, from the date immediately following the date agreed upon, at one and half time of prime Lending Rate charged by the State Bank of India. Explanation.- For the purposes of this section," Prime Lending Rate" means the Prime Lending Rate of the State Bank of India which is available to the best borrowers of the bank. Section 5. Liability of buyer to pay compound interest.- Notwithstanding anything contained in any agreement between a supplier and a buyer or in any law for the time being in force, the buyer shall be liable to pay compound interest (with monthly interests) at the rate mentioned in Section 4 on the amount due to the supplier. Section 6. Recovery of amount due.- (1) The amount due from a buyer, together with the amount of interest calculated in accordance with the provisions of Sections 4 and 5, shall be recoverable by the supplier from the buyer by way of a suit or other proceeding under any law for the time being in force. (2) Notwithstanding anything contained in Sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is neither relevant nor material, what is material is that supply and services had to be after the enforcement of the Act, only then the liability of payment shall accrue. 34. We have already noticed that the purpose and object of legislation was prompt payments of money by buyer which has been statutorily ensured in Act, 1993 by containing mandatory provisions of payment of interest. 35. Section 4 which deals with date from which and rate at which interest is payable. The liability to make payment of the amount to the supplier only arises when any buyer fails to make payment as required Under Section 3. 36. Section 4 further provides "notwithstanding anything contained in any agreement between the buyer and the supplier or any law for the time being in force", thus, even if the agreement between the buyer and the supplier contains Clause that no interest on late payment shall be made the liability to pay interest is fastened by virtue of Section 4 disregarding any contract to the contrary. Whether the contract between buyer and supplier is prior to enforcement of Act, 1993 is also neither relevant nor material and the material is that buyer fails to make payment to supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st at the rate of 23% upto June, 1991 and 23.5% thereafter. 39. The word 'transaction' used in the above judgment has to include the supply, in the event word transaction is understood as supply there cannot be any quarrel with the proposition that Act will not apply with regard to supply made prior to the Act. 40. The next judgment of this Court is Shakti Tubes Ltd. v. State of Bihar and Ors. (2009) 7 SCC 673. In the said case, Shakti Tubes had filed a suit for payment of interest. In the above case, supply orders were placed by the State of Bihar on 16.07.1992, reliance on Act, 1993 was placed by the Appellant. It was also noticed in the said case that earlier supply order dated 16.07.1992 was materially altered and substituted by a fresh supply order issued on 18.03.1993. Referring to the judgment of this Court in Assam Small Scale Industries case, two-Judge Bench held that ratio of aforesaid decision is clearly applicable. In paragraphs 17, 18 and 19 following was laid down: 17. In the light of the said facts in Assam Small Scale Industries case, it was recorded in paragraph 37 of the judgment that while the Act came into effect from 23rd September, 1992, the supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as laid down: 21. We have considered the aforesaid rival submissions. This Court in Assam Small Scale Industries case has finally set at rest the issue raised by stating that as to what is to be considered relevant is the date of supply order placed by the Respondents and when this Court used the expression "transaction" it only meant a supply order. The Court made it explicitly clear in paragraph 37 of the judgment which we had already extracted above. In our considered opinion there is no ambiguity in the aforesaid judgment passed by this Court. The intent and the purpose of the Act, as made in paragraph 37 of the judgment, are quite clear and apparent. When this Court said "transaction" it meant initiation of the transaction i.e. placing of the supply orders and not the completion of the transactions which would be completed only when the payment is made. therefore, the submission made by the learned senior Counsel appearing for the Appellant-Plaintiff fails. 42. The Court further held that there was neither any alteration of the contract nor novation of the contract in paragraph 31 which is to the following effect: 31. Even otherwise, we are of the considered view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liability is admitted or has been disputed in respect of goods supplied or services rendered. In our opinion, Under Section 6(2) action by way of reference to IFC cannot be restricted to a claim for recovery of interest due Under Sections 4 and 5 only in cases of an existing determined, settled or admitted liability. IFC has competence to determine the amount due for goods supplied or services rendered in cases where the liability is disputed by the buyer. Construction put upon Section 6(2) by learned senior Counsel for the buyer does not deserve to be accepted as it will not be in conformity with the intention, object and purpose of 1993 Act. Preamble to 1993 Act, upon which strong reliance has been placed by learned senior Counsel, does not persuade us to hold otherwise. It is so because Preamble may not exactly correspond with the enactment; the enactment may go beyond Preamble. 45. In the above case also the contract was entered on 15.01.1993 but the contract was subsequently altered. Last alteration being on 29.04.1995 hence the Bench repelled the submission that Act, 1993 was not applicable. 46. Now we come to the judgment of this Court in Purbanchal Cables and Conductors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of a high rate of interest against the buyer, the Act cannot be construed to have retrospective effect. Since the Act envisages that the supplier has an accrued right to claim a higher rate of interest in terms of the Act, the same can only be said to accrue for sale agreements after the date of commencement of the Act i.e. 23-9-1992 and not any time prior. 50. The Bench also expressly rejected the submission of the learned Counsel appearing for the supplier that the earlier judgments of this Court in Assam Small Scale Industries and Shakti Tubes need consideration. On question of limitation of the suit no final opinion was expressed. The appeals were ultimately dismissed by the Bench. Issue No. 1 51. The judgment of this Court in Purbanchal Cables and Conductors Pvt. Ltd. relying on Assam Small Scale Industries and Shakti Tubes had laid down that Act, 1993 cannot be made applicable with regard to sale agreements which were entered into prior to the enforcement of the Act and Act can be invoked only for the sale agreements which were entered after the enforcement of the Act. Although attempt was made in Purbanchal Cables to get judgment in Assam Small Scale Industries and Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Board that the day of agreement has to be subsequent to the enforcement of the Act, the entire beneficial protection of the Act shall be defeated. The existence of statutory liability depends on the statutory factors as enumerated in Section 3 and Section 4 of the Act, 1993. Factor for liability to make payment Under Section 3 being the supplier supplies any goods or renders services to the buyer, the liability of buyer cannot be denied on the ground that agreement entered between the parties for supply was prior to Act, 1993. To hold that liability of buyer for payment shall arise only when agreement for supply was entered subsequent to enforcement of the Act, it shall be adding words to Section 3 which is not permissible under principles of statutory construction. We, thus, are of the view that judgments in Purbanchal Cables and Conductors (supra), Assam Small Scale Industries and Shakti Tubes which held that Act, 1993 shall be applicable only when the agreement to sale/contract was entered prior/subsequent to the enforcement of the Act, does not lay down the correct law. We accept the submission of learned Counsel for the Appellants that even if agreement of sale is enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new Rule of law to an act or transaction which was completed before the Rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new Rule of law is applied to an act or transaction in the process of completion.... The foundation of these concepts is the distinction between completed and pending transactions.... (T.C. Hartley, The Foundations of European Community Law 129 (1981). * * * Retrospective-Looking back; contemplating what is past. Having operation from a past time. 'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s completed on 04.10.1993. Details of the payment has also been given in the plaint which indicate that last payment dated 05.03.1994 was received. Paragraph 24 of the plaint gives the details of cause of action for the suit which states that cause of action for the suit arose on 31.03.1992 and thereafter on different date last date being mentioned in paragraph 24 was 05.10.1993 and each date subsequent thereafter. With regard to limitation there is specific pleading in paragraph 21 of the plaint which is to the following effect: 21. That the transaction between the Plaintiffs and the Defendants are duly maintained by the Plaintiffs in the Books of Accounts like ledger, Sale Register etc. which are kept in the usual course of the business of the Plaintiffs and those accounts between the Plaintiffs and the Defendants are in continuity and the interest payable by the Defendants to the Plaintiffs are carried over till date. As such the suit of the Plaintiff's is in within time. Apart from that the provisions of the Limitation Act does not apply in view of the provisions contained in the Act, 1993 as because the Act of 1993 is having overriding effect over the Limitation Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following effect: 31. Though the learned Senior Counsel would state that the suits filed by both the suppliers in the present batch of appeals were barred by limitation. We do not intend to express our view on the issue, since some of the appeals filed by the suppliers are still pending before the High Court. Any observation that we may make would certainly affect the interest of both the parties since that issue is yet to be decided by the High Court. 64. After the judgment of this Court dated 10.07.2012 when the matters went back to the High Court, Division Bench decided the RFA 66 of 2000 by impugned judgment dated 20.11.2012. The Division Bench in the impugned judgment has noticed the issues in paragraph 5 of the judgment and submissions on the limitations. In paragraph 22, the submissions on behalf of the Assam State Electricity Board have been noticed whereas the reply given by the learned Counsel for the Appellant has been noticed in paragraph 22, 24, 25 & 26 of the judgment which are as follows: 22. Yet another ground of challenge, advanced at the time of hearing of this appeal, by Mr. Das, learned Senior Counsel, is that the learned trial Court has wrongly held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, deserves to be excluded under the provisions of Section 14(2) of the Limitation Act and, thus, the suit was, reiterates Mr. Sinha, within time. 26. Above all, points out Mr. Sinha, learned Senior Counsel, that the Appellants, in the present appeal, have not challenged the learned trial Court's decision on the issue of limitation. In this regard, taking the Court through the memorandum of appeal, which the Appellants have preferred, Mr. Sinha, Learned Senior Counsel, has pointed out that the memorandum of appeal is wholly silent and does not raise or challenge the learned trial Court's decision on the issue of limitation. Furthermore, points out Mr. Sinha, the Full Bench, while deciding the reference, has clearly observed, in its decision that the suit was, admittedly, within three years of the last payment made by the Appellant Board. The observations of the Full Bench read as follows: The suit was admittedly within 3 years of the last payment made by the Appellant Board. 65. It is thus clear that the Division Bench although noticed the submissions of both the parties on the question as to whether the suit was barred by limitation or not but Division Bench allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also. There is no provision in 1993 Act pertaining to limitation, the provision of Limitation Act pertaining to filing suit shall continue to operate there being nothing contrary or overriding under 1993 Act. Section 10 will operate only with regard to expressed provisions contained in 1993 Act which shall be given overriding effect but reading Section 10 to the effect that it shall override Limitation Act is not correct interpretation of Section 10 and Trial Court fell in error in relying on Section 10 in holding that Limitation Act will not apply. 70. We thus are of the view that Limitation Act, 1963 is fully applicable with regard to money suit filed by the Appellant hence, the question of limitation has to be answered as per Limitation Act 1963. The limitation for suit for recovery of interest under 1993 Act is a suit of nature which shall be covered by Part X Article 113 of the Schedule which is to the following effect: PART X-SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD 71. The period for commencement of limitation for filing suit Under Article 113 begins "when the right to sue accrues". We have now to find out as to when the right to sue accrues to the Plaintiff as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve submission that Plaintiff was entitled for the benefit Under Section 14 of limitation Act. Since a W.P. No. giving rise to Civil Rule No. 1531 of 1993 on behalf of five main members of the Associations i.e. Assam Conductors Manufacture Association was filed in the High Court which on 06.09.1994 directed the Petitioner to move to Civil Court for realization of the dues of its member, hence the period during which the writ was pending has to be given benefit. According to pleading in paragraph 24, the Writ Petition was filed by Assam Conductors Manufacture Association. M/s. Shanti Conductor(P) Ltd. and another, is a different entity than the Association. 76. We thus are of the view that benefit of the Section 14 cannot be claimed by the Plaintiff in the facts of the present case. We, thus in view of the foregoing discussion come to the conclusion that suit filed by the Plaintiff being Money Suit No. 21 of 1997 was barred by time. Issue No. 4 77. While deciding Issue No. 3 we having held that Money Suit filed by the Appellant was barred by time, it is not necessary to express any opinion on the above issue. Issue No. 5 78. The question as to whether suit filed only for interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act. 81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the Plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted. 82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the Appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this Court in Assam Small Scale Industry Development Corporation and Ors. v. J.D. Pharmaceuticals and Ors. 2005(13) SCC 19. We thus are of the view that present appeal challenging the review judgment cannot be entertained. The ground on which the Appellant can challenge the review judgment can be the ground on which libert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 for recovery of Rs. 5,46,233.14 p. as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993. Appeal was filed by the Respondent in the High Court being RFA No. 78 of 2003, which has been allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest. The High Court following the judgment of this Court in Purbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable. The Appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the Appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act. There being nothing on record to come to the conclusion that any s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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