Jharkhand High Court
Jharkhand Bijli Vitaran Nigam Limited vs M/S Anvil Cables Private Limited on 1 August, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 71 of 2024
With
I.A. No. 5511 of 2024
---------
1. Jharkhand Bijli Vitaran Nigam Limited, a State Government Company,
having its Registered Address at Engineering Building, H.E.C, Dhurwa,
P.O. & P.S. Dhurwa, District-Ranchi-834004.
2. Chairman-Cum-Managing Director, Jharkhand Bijli Vitaran Nigam
Limited, having its office at Engineering Building, H.E.C, Dhurwa, P.O
& P.S.-Dhurwa, District-Ranchi-834004.
3. Senior Manager (Finance & Accounts), Jharkhand Bijli Vitaran Nigam
Limited, having its registered address at Engineering Building, H.E.C,
Dhurwa, P.O & P.S- Dhurwa, District-Ranchi-834004.
... ... Petitioners/Respondents
Versus
1. M/s Anvil Cables Private Limited, a Private Limited Company
incorporated and subsisting under the provisions of the Companies Act,
2013, having its Registered Office at 102 Krishna, 224, AJC Bose Road,
P.O. & P.S.- A.J.C Bose Road, District- Kolkata-700017, through its
Constituted Attorney, Mr. Shailendra Kumar Singh, aged about 50 years,
son of Shri Rabindra Nath Singh, resident of Dewanji Street, Hooghly,
P.O. and P.S.-Rishra, District-Hooghly, Pin Code-711228, West Bengal.
... ... Respondent/Petitioner
2. The State of Jharkhand through the Principal Secretary, Department of
Energy, having its office at SBI Building, Project Bhawan, Dhurwa, P.O.
& P.S.- Dhurwa, District-Ranchi, Jharkhand-834004.
3. Joint Commissioner of Income Tax (TDS), having its office at Income
Tax Building, M.G. Road, P.O-Railway P.O, P.S-Chutia, District-
Ranchi-834001.
... .... Proforma Respondents/Respondents
---------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
----------
For the Petitioners : Mr. Sachin Kumar, Sr. Standing Counsel
For the Respondents : Mr. M.S. Mittal, Sr. Advocate
Mr. Salona Mittal, Advocate
-----------
st
03/Dated: 01 August, 2024
I.A. No. 5511 of 2024:
1. The instant interlocutory application has been filed for condonation
of delay of 21 days which has occurred in filing the instant civil
review.
2. Learned counsel for the petitioner has submitted that the delay of 21
days which has occurred in filing the instant civil review may be
condoned.
3. Learned counsel for the respondent has raised no objection to such
submission of the learned counsel for the appellant in condoning the
delay.
4. Considering the reason assigned in the delay condonation
application, this Court is of the view that the delay of 21 days may
be condoned.
5. Accordingly, the instant interlocutory application is allowed and the
delay of 21 days which has occurred in filing the instant civil
review, is hereby condoned.
Civil Review No. 71 of 2024:
6. The instant civil review has been filed under Article 226 of the
Constitution of India for modification of the order dated 08.04.2024
passed in W.P.(T) No. 5475 of 2023.
7. Before proceeding to examine the principle of review as to whether
the same is applicable in the facts and circumstances of the present
case or not, it needs to refer herein the factual background which
reads as under:
A tender for Rural Electrification Works under Din Dayal
Upadhyay Gram Jyoti Yojna, hereinafter referred as DDUGJY,
project in XIIth Plan for Giridih, Bokaro and Dhanbad districts of
Jharkhand was floated by JBVNL on 11.09.2015 being NIT No.
249/PR/JBVNL/15-16, 250/PR/JBVNL/15-16 and
251/PR/JBVNL/15-16. The writ petitioner on being selected as the
successful bidder, two separate Letter of Awards (LoA) each for
supply of materials and service of erection were issued to the writ
petitioner, wherein, the LoA for supply of material is defined as
"First Contract" and the LoA for erection works is defined as the
"Second Contract".
While the work was going on, the writ petitioner was
informed by the appellant/respondent-JBVNL that it has received
one show cause notice from the Income Tax Department dated
10.10.2017 vide Ref No.607 seeking explanation as to why the TDS
was not deducted by the appellant/respondent-JBVNL on the
amount of Rs.83,84,78,837/- so paid to the writ petitioner against
supply of the materials by the writ petitioner.
It is the case of the writ petitioner that the
appellant/respondent-JBVNL has started deducting the TDS @ 2%
from Running Account Bills for all the three projects for supply of
materials by the writ petitioner and also retained the amount
representing 2% of the value of the Work Order for supply of
materials towards the TDS liability so demanded by the Income Tax
Department.
Thereafter, the writ petitioner had issued a letter dated
14.03.2018 to the appellant/respondent-JBVNL requesting to release
the amount retained as Income Tax contingency @ 2%. The writ
petitioner wrote another letter dated 21.06.2018 to the
appellant/respondent-JBVNL requesting to release the amount being
Rs.2,90,32,000/- deducted/retained/withheld as Income Tax
Contingency for Tax Deducted at Source from Running Account
Bills for all the three projects. Thereafter, the writ petitioner wrote
another letter dated 21.09.2018 drawing attention towards the excess
TDS collected from the writ petitioner.
It is also the case of the writ petitioner that the writ
petitioner has not received any credit of the TDS so
deducted/retained/withheld by the appellant/respondent-JBVNL as it
was not reflected in Form 26AS of the writ petitioner.
Thereafter, the appellant/respondent-JBVNL issued letter
dated 22.10.2018 to the writ petitioner requesting to submit certain
documents in support of payment of Income Tax and Bank
Guarantee for release of withheld amount towards contingent
liability on TDS on supply bills which was responded by the writ
petitioner vide letter dated 29.10.2018 along with certificate issued
by the Chartered Accountants under first proviso to sub-section (1)
of Section 201 of the IT Act, 1961.
Thereafter, again vide letters dated 04.09.2019 and
01.06.2022, the writ petitioner requested the appellant/respondent-
JBVNL not to deduct the Income Tax Contingency from Supply
Bills and to release the amount of Rs.2,90,32,000/- held up as kept
back on account of Income Tax Contingency by the Respondent
JBVNL, respectively but the same having not been paid heed by the
appellant/respondent-JBVNL, the writ petitioner approached this
Court by filing writ petition being W.P.(T) No. 5475 of 2023.
8. It is evident on the basis of the factual background that the matter
was adjudicated by the co-ordinate Bench of this Court vide
judgment dated 08.04.2024 passed in W.P.(T) No. 5475 of 2023.
The operative part of the order needs to be referred herein, which
reads as under:
"17. Any unjust retention of money or property of another shall be
against the fundamental principles of justice, equity and good
conscience. The unauthorized deductions from the running bills of
the petitioner-Firm are patently illegal. Such deductions caused
loses to the petitioner-Firm which filed its Income Tax retuns but
was deprived of Rs. 2,90,32,000/- and thereby suffered business or
alteast interest losses. On the other hand, the JBVNL was unjustly
enriched and need to restitute the petitioner-Firm. The refund of
Rs. 2,90,32,000/- must therefore carry interest as a matter of
course. In "Indian Council for Enviro-Legal Action v. Union of
India" (2011) 8 SCC 161, the Hon'ble Supreme Court held that
this is the bounden duty of the Court to neutralize unjust
enrichment by imposing compound interest and punitive costs. In
paragraph No.178 of the reported judgment, the Hon'ble Supreme
Court held as under:
"178. To do complete justice, prevent wrongs, remove
incentive for wrongdoing or delay, and to implement in
practical terms the concepts of time value of money, restitution
and unjust enrichment noted above--or to simply levelise--a
convenient approach is calculating interest. But here interest
has to be calculated on compound basis--and not simple--for
the latter leaves much uncalled for benefits in the hands of the
wrongdoer."
18. As per clause 10.7.4 of the Jharkhand State Electricity
Regulatory Commission, Ranchi (Electricity Supply Code)
Regulation, 2015, the interest rate to be paid on any excess amount
paid by the consumer is equivalent to the interest rate paid by the
consumer on delay payment surcharge. Therefore, the JBVNL shall
pay interest over the withheld amount of Rs. 2,90,32,000/- as per
clause 10.7.4 of the Regulation of 2015 which is extracted
hereunder:
10.7.4 If the consumer has paid any excess amount, it shall
be refunded to the consumer within 15 days or, if consumer
opts, be adjusted within two subsequent bills. The
Distribution Licensee shall pay to the consumer interest
charges at the rate equivalent to the delay payment surcharge
as per tariff on the excess amount outstanding on account of
such wrong billing from the date of payment till the date of
refund or adjustment in subsequent bills.
19. Regarding the imposition of cost, we may indicate that on 14th
March 2024, this Court has passed the following order:
"Having briefly heard Mr. M.S Mittal, the learned senior
counsel for the petitioner, Mr. Sachin Kumar, the learned
senior standing counsel for the JBVNL and Mr. Anurag
Vijay, the learned retained counsel for the Income Tax
Department, this Court has formed a prima-facie opinion that
retention of amount of Rs.2,90,32,000/- purportedly on
account of 2% TDS deductions from the bills raised by the
petitioner is without any authority in law if the said amount is
not deposited with the Income Tax Department.
2. In the counter-affidavit, the stand taken by the JBVNL that
the aforementioned amount has been retained as "Keep Back
Amount" for meeting the future liability under the Income
Tax Act, 1961 also seems to be unjustified. As it appears on a
cursory glance at the provisions under the Income Tax Act,
1961, once an amount is deducted towards TDS liability the
same should have been deposited so that the assessee shall
get the benefit thereof in his income tax return.
3. However, on the request of Mr. Sachin Kumar, the learned
senior standing counsel for the JBVNL, this matter is
adjourned by one week to enable the JBVNL to take a
conscious decision in the matter whether or not to deposit the
amount of Rs.2,90,32,000/- deducted from the running bills of
the petitioner.
4. For that purpose, this matter shall be posted on 21st
March 2024."
20. In response thereof, a supplementary counter-affidavit has been
filed stating that in terms of Clauses 10.1 and 10.7 of the General
Conditions of Contract whereunder the Contractor is solely and
entirely responsible for any taxes including income tax, the JBVNL
is empowered to adjust such amount from the price/bills released to
the Contractor. The JBVNL has further stated that in case the
appeal filed by it fails it shall be required to deposit the entire
amount with interest and penalties and then the TDS return shall
be filed and certificate i.e. Form-16A for the same shall be
generated and issued to the Contractor. In the circumstances of the
case, we hold that the stand taken by the JBVNL lacks bonafide;
short to saying actuated with oblique motive.
21. The imposition of cost on the party which started litigation
without any just cause or took false and frivolous defences is
necessary to discourage the dishonest litigant. To this end, the
Court is required to impose such cost that would make the litigant
think twice before putting up any speculative claim or defence. In
"Salem Advocate Bar Assn. (II) v. Union of India" (2005) 6 SCC
344 the Hon'ble Supreme Court held as under:
"37. Judicial notice can be taken of the fact that many
unscrupulous parties take advantage of the fact that either
the costs are not awarded or nominal costs are awarded
against the unsuccessful party. Unfortunately, it has become
a practice to direct parties to bear their own costs. In a large
number of cases, such an order is passed despite Section
35(2) of the Code. Such a practice also encourages the filing
of frivolous suits. It also leads to the taking up of frivolous
defences. Further, wherever costs are awarded, ordinarily
the same are not realistic and are nominal. When Section
35(2) provides for cost to follow the event, it is implicit that
the costs have to be those which are reasonably incurred by a
successful party except in those cases where the court in its
discretion may direct otherwise by recording reasons
therefor. The costs have to be actual reasonable costs
including the cost of the time spent by the successful party,
the transportation and lodging, if any, or any other incidental
costs besides the payment of the court fee, lawyer's fee,
typing and other costs in relation to the litigation. It is for the
High Courts to examine these aspects and wherever
necessary make requisite rules, regulations or practice
direction so as to provide appropriate guidelines for the
subordinate courts to follow."
22. The petitioner-Firm was unnecessarily dragged to the Court
and, that too, knowingly and for no fault on its part. The litigation
file that has been produced in the Court reveals that a decision in
the context of the order dated 14th March 2024 passed by this
Court has been taken at the highest level of the Managing Director
of JBVNL. Therefore, we are of the definite opinion that the JBVNL
must be saddled with cost of Rs.5 Lacs which shall be recovered
from the Managing Director.
23. This writ petition is allowed, in the aforesaid terms."
9. The instant review petition has been filed for review of the direction
as under paragraphs-18 and 22. The direction has been passed as
under paragraph-18 holding the writ petitioner entitled for interest
for the withheld amount of Rs. 2,90,32,000/- per clause 10.7.4 of the
Jharkhand State Electricity Regulatory Commission, Ranchi
(Electricity Supply Code) Regulations, 2015, casting liability upon
the review petitioner who was respondent to the writ petition.
10.The direction has been passed as under paragraph-22 saddling the
cost of Rs.5 lakhs to be recovered from the Managing Director,
JBVNL which is another ground to file this review petition.
11.This Court has perused the prayer wherein it has been prayed for
passing appropriate orders for the removal of interest liability over
the withheld amount and cost imposed upon the Managing Director
of the respondents. For ready reference, the prayer made in this
review petition is being referred as under:
"...pass appropriate orders for the removal of interest liability
over the withheld amount and cost imposed upon the Managing
Director of the respondents. ..."
12.This Court before proceeding to examine as to whether the order
which is being sought to be reviewed can be reviewed on the
grounds upon which the present review has been filed for which
settled position of law for the purpose of exercising the power of
review needs to be referred herein, as has been settled by the
Hon'ble Apex Court in Moran Mar Basselios Catholicos and Anr.
vs. Most Rev. Mar Poulose Athanasius and Ors., [AIR 1954 SC
526], particularly at paragraph-32 which reads as hereunder: -
"32. Before going into the merits of the case it is as well to bear
in mind the scope of the application for review which has given
rise to the present appeal. It is needless to emphasis that the
scope of an application for review is much more restricted than
that of an appeal. Under the provisions in the Travancore Code
of Civil Procedure which is similar in terms to Order XL VII,
Rule I of our Code of Civil Procedure, 1908, the Court of review
has only a limited jurisdiction circumscribed by the definitive
limits fixed by the language used therein. It may allow a review
on three specified, grounds, namely (i) discovery of new and
important matter or evidence which, after the exercise of due
diligence, was not within the applicant's knowledge or could not
be produced by him at the time when the decree was passed, (ii)
mistake or error apparent on the face of the record and (iii) for
any other sufficient reason." 49.
13.Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union of
India (1980) Supp. SCC 562, the Hon'ble Apex Court observed that
a review of an earlier order cannot be done unless the court is
satisfied that the material error which is manifest on the face of the
order, would result in miscarriage of justice or undermine its
soundness. The observations made are as under:
"12. A review is not a routine procedure. Here we resolved to
hear Shri Kapil at length to remove any feeling that the party
has been hurt without being heard. But we cannot review our
earlier order unless satisfied that material error, manifest on
the face of the order, undermines its soundness or results in
miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib
1975 1 SCC 674 this Court observed:
'A review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omission or
patent mistake or like grave error has crept in earlier by
judicial fallibility. ..... The present stage is not a virgin
ground but review of an earlier order which has the
normal feature of finality."
14.Further, the Hon'ble Apex Court in the case of Kamlesh Verma v.
Mayawati, reported in (2013) 8 SCC 320 has observed that review
proceedings have to be strictly confined to the scope and ambit of
Order XLVII Rule 1, CPC. As long as the point sought to be raised
in the review application has already been dealt with and answered,
parties are not entitled to challenge the impugned judgment only
because an alternative view is possible. The principles for exercising
review jurisdiction were succinctly summarized as under:
"20. Thus, in view of the above, the following grounds of
review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within
knowledge of the petitioner or could not be produced by
him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been
interpreted in Chajju Ram v. Neki, and approved by this Court
in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose
Athanasiusto mean "a reason sufficient on grounds at least
analogous to those specified in the rule". The same principles
have been reiterated in Union of India v. Sandur Manganese &
Iron Ores Ltd.,.
20.2. When the review will not be maintainable:--
(i) A repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby
an erroneous decision is re-heard and corrected but lies
only for patent error.
(vi) The mere possibility of two views on the subject
cannot be a ground for review.
(vii) The error apparent on the face of the record should
not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully
within the domain of the appellate court, it cannot be
permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief
sought at the time of arguing the main matter had been
negatived."
15.It is evident from the aforesaid proposition of law that the
jurisdiction of the Court who is to review the order, is very limited
and the same can only be exercised if there is error apparent on the
face of the order or any facts could not have been brought to the
notice of the Court in spite of due diligence.
16.This Court is now proceeding to examine the factual aspect along
with the grounds based upon which the present review petition has
been filed.
17. It has been found by the Court from the review petition particularly
with respect to the direction as under paragraphs-18 and 22, the
instant review petition has been filed. Reference of supplementary
affidavit has also been made wherein the ground has been taken that
cost of Rs.5 lakhs which has been saddled to make payment is from
the Managing Director but without hearing him the said direction
has been passed.
18. Learned Senior Standing Counsel based upon the aforesaid ground
has filed the instant review petition.
19. Since the law is settled that to review the order passed by the Court
is very limited and order of review can only be passed in the
circumstances of availability of certain conditions as has been held
by the Hon'ble Apex Court in the recent judgment rendered in
Sanjay Kumar Agarwal Vrs. State Tax Officer (1) & Anr., reported
in (2024) 2 SCC 362, wherein the Hon'ble Apex Court while
interpreting the provision of Order 47 Rule 1 of the C.P.C. which is
pari materia to Rule 203 of the Jharkhand High Court Rules,
wherein, the proposition has been laid down to entertain the review,
has held at paragraphs-16.1 to 16.8 which reads as under:-
"16.1. A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the record.
16.2. A judgment pronounced by the court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling character make
it necessary to do so.
16.3. An error which is not self-evident and has to be detected
by a process of reasoning, can hardly be said to be an error
apparent on the face of record e justifying the court to exercise
its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1
CPC, it is not permissible for an erroneous decision to be
"reheard and corrected".
16.5. A review petition has a limited purpose and cannot be
allowed to be "an appeal in disguise".
16.6. Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which have
already been addressed and decided.
16.7. An error on the face of record must be such an error
which, mere looking at the record should strike and it should
not require any long-drawn process of reasoning on the points
where there may conceivably be two opinions.
..."
20. It is also settled that order is not to be reviewed in the garb of the
appeal. Further settled position of law is that if the fact has been
taken into consideration by the Court may be wrong consideration
by the Court but the same cannot be a ground for review rather the
same will be a ground to prefer an appeal before the higher forum, if
available.
21. The ground of review are two folds that there is vagueness in
paragraph-18 wherein the liability of interest has been imposed upon
the total amount but from which date the interest is to be accrued on
the total amount of Rs.2,90,32,000/-, is not there.
The second ground is that the Managing Director has been
saddled with cost of Rs.5 lakhs which has been passed by the Court
by putting liability in not acting with due diligence and the third
ground has been taken that the Managing Director was not a party to
the proceeding and as such, saddling of cost of Rs.5 lakhs as under
paragraph-22 of the order sought to be reviews is contrary to the
principles of natural justice.
22. The first ground which has been taken that the quantum of interest
has not been decided but this Court on consideration of paragraph-
18 has found that this Court has passed the order holding the writ
petitioner entitled for interest over the withheld amount of
Rs.2,90,32,000/- as per clause 10.7.4 of the Regulation, 2015.
23. Reference of the said regulation has also been made in the said
paragraph. For ready reference, the same is being reiterated herein
also as under:
"10.7.4 If the consumer has paid any excess amount, it shall be
refunded to the consumer within 15 days or, if consumer opts, be
adjusted within two subsequent bills. The Distribution Licensee
shall pay to the consumer interest charges at the rate equivalent to
the delay payment surcharge as per tariff on the excess amount
outstanding on account of such wrong billing from the date of
payment till the date of refund or adjustment in subsequent bills."
24. It is evident from the said clause that if the consumer has paid any
excess amount, it shall be refunded to the consumer within 15 days
or, if consumer opts, be adjusted within two subsequent bills. The
Distribution Licensee shall pay to the consumer interest charges at
the rate equivalent to the delay payment surcharge as per tariff on
the excess amount outstanding on account of such wrong billing
from the date of payment till the date of refund or adjustment in
subsequent bills.
25. It is thus evident that the co-ordinate Bench of this Court while
passing the order, has taken into consideration the said clause
wherein in case of excess payment, the amount is to be refunded and
on that count, the interest will have to be paid to the consumer
which will be at the rate equivalent to the delay payment surcharge
as per tariff on the excess amount outstanding on account of such
wrong billing from the date of payment till the date of refund or
adjustment in subsequent bills which means there is no ambiguity in
the direction so passed of casting liability to pay interest as under
paragraph-18 since the same is based upon the consideration of the
provision made in clause 10.7.4 of the Regulation, 2015, as such, the
same cannot be a ground for review rather the same will be a ground
to challenge the finding so recorded by the original court before the
higher forum.
26. If the contention of the learned standing counsel for the review
petitioner will be accepted, then the same will be nothing but
exercising the power of appeal in the garb of review.
27. The second and third ground is casting liability by saddling cost of
Rs.5 lakh upon the Managing Director who has not been impleaded
as party to the proceeding.
28. This Court has considered in the light of the provision of clause
10.7.4 of the Regulation, 2015 and due to non-adherence of the said
clause by the competent authority in not refunding the amount and if
in that pretext, personal liability has been imposed upon the
Managing Director by saddling cost of Rs.5 lakh, the same cannot
be said that there is no consideration of the issue in the light of the
statutory provision applicable rather there is consideration which
might be said to be wrong consideration, for which the remedy
available is not of review but of appeal.
29. It has also been submitted that the Managing Director was not a
party.
30. This Court is of the view that if the Managing Director was not a
party and when the Managing Director has been saddled with cost of
Rs.5 lakh then, it is his individual liability and nobody can be
allowed to question the individual liability rather the same can only
be questioned by the Managing Director by directly approaching to
the Court.
31. This Court, as per the aforesaid reason and relying upon the
judgment passed by the Hon'ble Apex Court in Sanjay Kumar
Agarwal Vrs. State Tax Officer (1) & Anr. (supra) as also taking
into consideration the ground which is to be applied in review of the
order, is of the view that the instant civil review is fit to be
dismissed.
32. Accordingly, the instant review petition stands dismissed.
(Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
Saurabh/-
A.F.R.
