Jharkhand High Court

Avinash Kumar vs M/S Anvil Cables Private Limited on 8 May, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
         Civil Review No.106 of 2024
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Avinash Kumar, aged about 55 years, S/o-Sri T.N. Thakur, R/o- Dindayal Nagar, Morabadi, P.O. & P.S.-Lalpur, District-Ranchi and working and posted as Managing Director, Jharkhand Bijli Vitaran Nigam Limited, a State Government Company, having its registered office at: Engineering Building, H.E.C., Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi-834004 .... Civil Review Petitioner Versus

1. M/s Anvil Cables Private Limited, a Private Limited Company incorporation 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 .... Writ Petitioner/Respondent/Opposite Party

2. 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.

3. 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.

4. 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.

5. 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.

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6. 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. .... ....

Respondents/Performa Respondents/Opposite Parties

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Ravi Prakash Mishra, Advocate Mr. Ankit Vishal, Advocate For the Resp. No.1 : Mr. M.S. Mittal, Sr. Advocate Mr. Salona Mittal, Advocate Mr. Amrita Singh, Advocate Mr. Yashdeep Kanhai, Advocate For the Income Tax : Mr. Anurag Vijay (SC, I.T. Dept.) Mr. Srijan, Advocate For the JBVNL : Mr. Ranjan Kumar, AC to SC, JBVNL

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C.A.V. on 15.04.2025 Pronounced on 08/05/2025

1. The instant review petition has been filed for review of the order

dated 08.04.2024 passed in W.P.(T) No.5475 of 2023 to the

extent by which cost of Rs.5 lakhs has been directed to be

transmitted in favour of the writ petitioner, private respondent

herein, which is to be recovered from the Managing Director,

JBVNL.

2. The brief facts of the case leading to filing of the instant review,

needs to be referred as under:-

(i) The writ Petitioner-Firm (respondent herein)

registered under the Companies Act, 1956 and engaged in the

business of providing comprehensive engineering, procurement

and construction services to the Core sector industries in India.

The writ Petitioner-Firm has challenged the action of the

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Jharkhand Bijli Vitran Nigam Limited (JBVNL) in deducting Rs.

2,90,32,000/- from the running account bills raised against the

supply of materials.

(ii) The Petitioner-Firm was selected for the rural electrification

works under Deen Dayal Upadhyaya Gram Jyoti Yojna in XIIth

Plan for Giridih, Bokaro and Dhanbad. Later, the JBVNL issued

the Letters of Award, vide (i) Letter of Award for supply of

materials being, LoA No. 01/RE dated 5th February 2016, LoA

No. 03/RE dated 5th February 2016 and LoA No. 05/RE dated

5th February 2016 for the projects at Giridih, Bokaro and

Dhanbad and (ii) Letter of Award for erection and civil works

being LoA No. 02/RE dated 5th February 2016, LoA No. 04/RE

dated 5th February 2016 and LoA No. 06/RE dated 5th February

2016 for the aforementioned districts in the State of Jharkhand.

(iii) The JBVNL started deductions @ 2% from the running bills

raised by the petitioner-Firm for the supply of materials and

retained Rs. 2,90,32,000/- on the pretext of "Income Tax

Contingency". Through several communications, the petitioner-

Firm requested the JBVNL to release the amount so withheld as

Income Tax contingency and also informed the JBVNL that the

amount withheld by it is not reflected in Form-26AS.

Notwithstanding that, the JBVNL did not release the illegally

deducted amount nor deposited the said amount with the Income

Tax Department.

(iv) Aggrieved with the conduct of the JBVNL, the writ petitioner

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Firm had preferred a writ petition being W.P.(T) No. 5475 of 2023.

(v) Before the writ Court, the JBVNL had taken the ground that

deductions made @ 2% from the running bill of the petitioner-

Firm and the amount of Rs. 2,90,32,000/- has been "kept back" to

safeguard its interest. It has been pleaded that the "kept back"

amount shall be released or the TDS certificate will be issued

depending on the outcome of the appeal preferred by the JBVNL

against the demand notice dated 10th October 2017.

(vi) In the counter affidavit, the JBVNL referred to the notice

under section 201 of the Income Tax Act, 1961 and the demand

notice that includes the fine and a penal interest for violation of

the provisions for TDS deductions.

(vii) Per contra, the writ petitioner Firm had taken the ground

that the petitioner-Firm is not a party to the dispute between the

JBVNL and the Income Tax Department, and withholding of Rs.

2,90,32,000/- without issuing the TDS certificate, is arbitrary and

unlawful.

(viii) The writ Court, while taking in to consideration the purport of

the provisions of the Income Tax Act, follows the consequences

as provided under Section 201 of the Income Tax Act and also

the concept that any unjust retention of money or property of

another shall be against the fundamental principles of justice,

equity and good conscience, has allowed the said writ petition.

The writ Court further observed that the imposition of cost on the

party which started litigation without any just cause or took false

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and frivolous defence is necessary to discourage the dishonest

litigant and 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. Consequently, the writ Court has

further directed that JBVNL must be saddled with cost of Rs.5

Lacs, which shall be recovered from the Managing Director.

(ix) Being aggrieved with the part of the order, i.e., the cost of

Rs.5 Lacs which has been imposed upon the JBVNL, shall be

recovered from the Managing Director, hence, the instant review

petition has been preferred by the petitioner, Managing Director

JBVNL.

3. It is evident from the factual aspect that the issue pertaining to

deduction of TDS @ 2% by the JBVNL from running account bills

for supply of material by the petitioner and also retention of

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, fell for consideration before this Court in

the writ petition being W.P.(T) No.5475 of 2023.

4. The writ Court, while taking into consideration the purport of the

provisions of the Income Tax Act, follows the consequences as

provided under section 201 of the Income Tax Act and also the

concept that any unjust retention of money or property of another

shall be against the fundamental principles of justice, equity and

good conscience, has allowed the said writ petition and

accordingly, the writ Court, has imposed the cost of Rs.5 Lacs

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upon JBVNL with direction that the same will be recovered from

the Managing Director JBVNL.

5. Being aggrieved with the part of the order, i.e., the cost of Rs.5

Lacs which has been imposed upon the JBVNL shall be

recovered from the Managing Director.

6. The present review has been filed by the incumbent, who is

holding the post of Managing Director, JBVNL for review of part of

order dated 08.04.2024 passed by the Coordinate Bench of this

Court, by which, the amount directed to be paid in favour of the

writ petitioner to the tune of Rs.5 lakhs, has been directed to be

re-paid by the incumbent, holding the post of Managing Director,

JBVNL.

Submission of the learned counsel for the review petitioner:

7. Mr. Indrajit Sinha, learned counsel for the review petitioner has

taken the following grounds in review of the said part of the order

by which the amount has been directed to be paid vide order

dated 08.04.2024 passed in W.P.(T) No.5475 of 2023, which has

been directed to be recovered from the Managing Director,

JBVNL, the present petitioner, since, he is holding the post of

Managing Director, JBVNL.

(i) It has been submitted that no individual liability can be

casted upon the incumbent officer, since, whatever decision

has been taken, i.e., on behalf of the Board and he is

merely holding the post of Managing Director of the Board,

hence, there cannot be any individual attributability for

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which the amount as has been directed to be paid by the

JBVNL, is to be recovered from the present Managing

Director.

(ii) The document has been appended by way of filing the

additional affidavit showing the fact that the decision has

been taken on behalf of the Board and no personal liability

can be casted upon.

(iii) It has been submitted that the JBVNL has already made

payment of Rs.5 lakhs in favour of the respondent, writ

petitioner, as per the direction passed by the Co-ordinate

Bench of this Court.

8. Learned counsel for the review petitioner, based upon the

aforesaid grounds, has submitted that the part of the order by

which the amount has been paid by the JBVNL, which has been

directed to be recovered by the Managing Director, is fit to be

reviewed by recalling that part of the order.

Submission of the learned counsel for the respondent-writ

petitioner:

9. Mr. M.S. Mittal, learned senior counsel for the respondent-writ

petitioner has submitted that the amount although has been paid

to the petitioner by the JBVNL but it is incorrect on the part of the

review petitioner to take the ground that the Coordinate Bench

has passed an order in absence of Chairman-cum-Managing

Director, JBVNL, rather, if the party position will be taken into

consideration, the JBVNL has been impleaded as party through

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the Chairman-cum-Managing Director by way of its impleadment

as respondent no.3 (in writ petition).

10. The order has been passed by the Coordinate Bench of this

Court on the basis of counter affidavit filed on behalf of the

JBVNL under the authority of Chairman-cum-Managing Director

of JBVNL and hence, the Coordinate Bench has found the laches

committed on the part of individual functionary. However, only in

order to compensate by way of imposing a cost upon the JBVNL

by way of immediate measure, the direction has been passed

upon the JBVNL for the payment of Rs.5 lakhs but the same has

been directed to be recovered from the individual functionary, i.e.,

incumbent who is holding the post of Managing Director, the

present review petitioner.

11. It has further been submitted that such direction has been passed

by the Coordinate Bench of this Court on the ground that if any

laches has been committed by the individual functionary, then

why the public exchequer will be allowed to suffer that has been

taken into consideration primarily and that is the reason, the order

has been passed for recovery of the said amount from the

individual concerned, review petitioner herein, therefore, the said

part of order which has been sought for review requires no

interference.

12. It has further been submitted that the order passed by the

Coordinate Bench of this Court has also been declined to be

interfered with by the Hon'ble Apex Court, as would be evident

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from the order dated 09.12.2024 passed in Special Leave Petition

(Civil) Diary No(s).40660 of 2024, therefore, the order passed by

the Coordinate Bench of this Court has attained its finality

including the part of the order, whereby and whereunder, the

direction has been passed for recovery of the said amount of

Rs.5 lakhs from the review petitioner.

13. Learned Senior Counsel, based upon the aforesaid grounds, has

submitted that it is therefore not a fit case to review/recall that

part of the order.

Analysis

14. We have heard the learned counsel for the parties and gone

through the pleadings made in the review petition as also

annexures appended therein.

15. This Court, before appreciating the argument for recall/review of

the part of the order to the extent by which cost of Rs.5 lakhs

have been directed to be transmitted in favour of the writ

petitioner, private respondent herein, which is to be recovered

from the Managing Director, JBVNL, needs to refer herein the

underlying principle under which the power of review is to be

exercised.

16. The Hon'ble Apex Court in the case of Moran Mar Basselios

Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius and

Ors., [AIR 1954 SC 526], particularly, at paragraph-32 has observed

as under:

"32. Before going into the merits of the case it is as well to bear

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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."

17. 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."

18. Further, the Hon'ble Apex Court in the case of Kamlesh Verma v.

Mayawati, reported in (2013) 8 SCC 320 has observed that review

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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 important0 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.

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(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."

19. It is evident from the aforesaid judgments that the power of review is to

be exercised if there is any error occurred on the face of the order or

the factual aspect could not have been brought to the notice of this

Court in spite of the due diligence having been taken in the matter of

making available the factual aspect of the relevant documents.

20. The position of law is well settled, as would appear from the reference

of the judgments made hereinabove that the review of the judgment

can only be made if the new fact has come which could not have been

brought to the notice of the Court in spite of the due diligence, as has

been held by the Hon'ble Apex Court in Moran Mar Basselios

Catholicos and Anr. v. Most Rev. Mar Poulose (supra).

21. It is evident that while power of review may be inherent in the High

Court to review its own order passed in a writ petition, the same has to

be exercised on well-recognised and established grounds on which

judicial orders are reviewed. For example, the power may be exercised

on the discovery of some new and important matter or evidence which

was not within the knowledge of the parties seeking review despite

due exercise of diligence when the order was made.

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22. Review can also be sought when the order discloses some error

apparent on the face of record or on grounds analogous thereto.

These are all grounds which find mention in various judicial

pronouncements right from the earliest time as well as in the Rules of

Order 47 of the Civil Procedure Code as permissible grounds of

review.

23. The term "mistake or error apparent" by its very connotation signifies

an error which is evident per se from the record of the case and does

not require detailed examination, scrutiny and elucidation either of the

facts or the legal position. If an error is not self-evident and detection

thereof requires long debate and process of reasoning, it cannot be

treated as an error apparent on the face of the record for the purpose

of Order 47 Rule 1 CPC.

24. Under Order 47 Rule 1 CPC a judgment may be open to review inter

alia if there is a mistake or an error apparent on the face of the record.

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

the record justifying the Court to exercise its power of review under

Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47

Rule 1 CPC it is not permissible for an erroneous decision to be

'reheard and corrected'.

25. There is a clear distinction between an erroneous decision and an

error apparent on the face of the record. While the first can be

corrected by the higher forum, the latter only can be corrected by

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exercise of the review jurisdiction. A review petition has a limited

purpose and cannot be allowed to be 'an appeal in disguise'.

26. Further, the law is well settled that a review petition, has a limited purpose and cannot be allowed to be "an appeal in disguise", as has been settled by the Hon'ble Apex Court in the case of Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, for ready reference the relevant paragraph of the aforesaid judgment is quoted as under:

"9. Under Order 47 Rule 1CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under Order 47 Rule 1CPC. In exercise of the jurisdiction under Order 47 Rule 1CPCit is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"."

27. Similarly, in S. Murali Sundaram Versus Jothibai Kannan and

Others 2023 SCC OnLine SC 185, the Hon'ble Apex Court

observed as under:

"15. While considering the aforesaid issue two decisions of

this Court on Order 47 Rule 1 read with Section 114 CPC are

required to be referred to? In the case of Perry Kansagra

(supra) this Court has observed that while exercising the

review jurisdiction in an application under Order 47 Rule 1

read with Section 114 CPC, the Review Court does not sit in

appeal over its own order. It is observed that a rehearing of the

matter is impermissible in law. It is further observed that

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review is not appeal in disguise. It is observed that power of

review can be exercised for correction of a mistake but not to

substitute a view. Such powers can be exercised within the

limits of the statute dealing with the exercise of power. It is

further observed that it is wholly unjustified and exhibits a

tendency to rewrite a judgment by which the controversy has

been finally decided. After considering catena of decisions on

exercise of review powers and principles relating to exercise of

review jurisdiction under Order 47 Rule 1 CPC this Court had

summed upon as under:

(i) Review proceedings are not by way of appeal and have to

be strictly confined to the scope and ambit of Order 47 Rule 1.

(ii) Power of review may be exercised when some mistake or

error apparent on the fact of record is found. But error on the

face of record must be such an error which must strike one on

mere looking at the record and would not require any long-

drawn process of reasoning on the points where there may

conceivably by two opinions. (iii) Power of review may not be

exercised on the ground that the decision was erroneous on

merits. (iv) Power of review can also be exercised for any

sufficient reason which is wide enough to include a

misconception of fact or law by a court or even an advocate.

(v) An application for review may be necessitated by way of

invoking the doctrine actus curiae neminem gravabit."

28. In the recent judgment in the case of Sanjay Kumar Agarwal Vrs.

State Tax Officer (1) & Anr., reported in (2024) 2 SCC 362, the

Hon'ble Apex Court while interpreting the provision of Order 47 Rule

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1 of the C.P.C., has been laid down the proposition to entertain the

review, as has been held at paragraph-16.1 to 16.7, 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.--"

29. In the backdrop of the aforesaid settled position of law, we are

now proceeding with the merit of the instant petition.

30. On the cost of repetition, it would be apt to refer the admitted

factual aspects. It is evident from the record that a writ petition

being W.P.(T) No. 5475 of 2023 has been filed seeking direction

upon respondent JBVNL to forthwith issue TDS certificate for the

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amount of Rs 2,90,32000/- deducted as income tax @ 2% from

the bills raised by the petitioner onwards supply of materials.

31. The writ petitioner/Firm has preferred the writ petition being

W.P.(T) No. 5475 of 2023 by taking ground that the JBVNL

started deductions @ 2% from the running bills raised by the

petitioner-Firm for the supply of materials and retained Rs.

2,90,32,000/- on the pretext of "Income Tax Contingency and

several communications, the petitioner-Firm requested the

JBVNL to release the amount so withheld as Income Tax

contingency and also informed the JBVNL that the amount

withheld, is not reflected in Form-26AS.

32. Before the writ Court, the JBVNL had taken the ground that

deductions made @ 2% from the running bill of the petitioner-

Firm and the amount of Rs. 2,90,32,000/- has been "kept back" to

safeguard its interest. It has been pleaded that the "kept back"

amount shall be released or the TDS certificate will be issued

depending on the outcome of the appeal preferred by the JBVNL

against the demand notice dated 10th October, 2017.

33. The writ Court, while taking into consideration the unjust retention

of money or property of another shall be against the fundamental

principles of justice, equity and good conscience has allowed the

said writ petition. The writ Court had further observed that the

imposition of cost on the party which started litigation without any

just cause or took false and frivolous defences are necessary to

discourage the dishonest litigant and to this end, the Court is

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required to impose such cost that would make the litigant think

twice before putting up any speculative claim or defence.

Consequently, the writ Court has further directed that JBVNL

must be saddled with cost of Rs.5 Lacs which shall be recovered

from the Managing Director. For ready reference, the relevant

paragraphs of the aforesaid order are being quoted 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 returns but was deprived of Rs. 2,90,32,000/- and thereby suffered business or al teast 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

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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

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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

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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."

34. The respondent, being aggrieved with the aforesaid order dated

08.04.2024, had preferred review petition being Civil Review No.

71 of 2024 wherein particularly paragraphs-18 and 22 of the

aforesaid order dated 08.04.2024 are being quoted and referred

hereinabove, has been sought for review.

35. In Civil Review No.71 of 2024, 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. ...

36. This Court, by taking into account all of the contentions of the learned counsel for the parties, had dismissed the said review petition vide order dated 01.08.2024, for ready reference, the relevant paragraph of the aforesaid order is being quoted as under:

"21. The ground of review are two folds that there is vagueness in paragraph-18 wherein the liability of interest

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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

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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

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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".

37. It requires to refer herein the admitted fact, as would be evident

from the order passed by the Coordinate Bench of this Court

dated 08.04.2024 passed in W.P.(T) No.5475 of 2023 that the writ

petitioner, the respondent herein has been held entitled for

Rs.2,90,32,000/-.

38. It is evident from the aforesaid order that the amount which ought

to have been transmitted to the Income Tax Department, has

been kept with the possession of the JBVNL and therefore, the

Coordinate Bench has taken note of the said order in the order

dated 08.04.2024 wherein, it has been ordered that if the amount

of Rs. 2,90,32,000/- would have been transmitted in the account

of Income Tax Department, which was taken as a source under

the Income Tax Act, 1961, then, the same having said to be

excess to the liability of the present petitioner would have

refunded back by the Income Tax Department in favour of the writ

petitioner, respondent herein but the said amount has been kept

in the account of JBVNL leading to financial loss to the writ

petitioner and during the relevant time, the Chairman-cum-

Managing Director, JBVNL, was the review petitioner as such, the

Coordinate Bench has made such reference therein.

39. In addition thereto, further observation has been made that due to

laches and casual approach taken by the JBVNL which was

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being headed by the present review petitioner, the petitioner has

been made to suffer by depriving him from his legal entitlement to

get the amount.

40. Further, the question of unjust enrichment has also been taken

into consideration and based upon the aforesaid premise, the

Coordinate Bench has passed order for refund of the said amount

along with the interest and in addition thereto, the cost of Rs.5

lakhs to be paid by the JBVNL at the instance which shall be

recovered from the individual, the review petitioner herein, the

relevant part of the said order is being referred as under:-

"...... ...... 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."

41. It needs to refer herein that the said order dated 08.04.2024

passed in W.P.(T) No.5475 of 2023 and order dated 01.08.2024

passed in Civil Review No.71 of 2024 has been carried to the

Hon'ble Apex Court, being Special Leave Petition (Civil) Diary

No(s).40660 of 2024. The said SLP was dismissed vide order

dated 09.12.2024. For ready reference, the order dated

09.12.2024 passed by the Hon'ble Apex Court is being quoted as

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under:

"O R D E R

1. Delay condoned.

2. Heard the learned counsel appearing for the petitioners.

3. We are not inclined to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petitions are dismissed.

4. Pending applications, if any, shall stand disposed of."

42. It needs to refer herein that as per the pleading made in the

instant review petition, wherein, it has been mentioned that

present review petition has been filed in individual capacity in the

light of the order dated 01.08.2024 passed in Civil Review No.71

of 2024 in reference to the paragraph-30 of the said order.

43. In the aforesaid context, this Court deems it fit and proper to refer

herein the para-30 of the aforesaid order dated 01.08.2024

passed in Civil Review No. 71 of 2024, which reads as under:

"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".

44. Thus, it is evident from the aforesaid paragraph that while

dismissing the said review petition (Civil Review No. 71 of 2024)

this Court has observed that 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

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approaching to the Court.

45. It requires to refer herein that in the review petition, the

impression has been created that the present individual was not

party to the proceeding, i.e., before the Coordinate Bench but it

would be evident from the order passed by the Coordinate

Bench, wherein, the Chairman-cum-Managing Director of the

JBVNL was respondent no.3 and under his authority, counter

affidavit has been filed and on full contest, the Coordinate Bench

has passed an order on 08.04.2024 passing the direction for

making payment of Rs.5 lakhs to be recovered from the

respondent (review petitioner herein), for ready reference, the

cause title of the order dated 08.04.2024 passed in W.P.(T)

No.5475 of 2023 is being quoted as under:-

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. .... Petitioner Versus

1. 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.

2. 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,

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Jharkhand-834004.

3. Chairman-Cum-Managing Director, Jharkhand Bijli Vitaran Nigam Limited, having its office at Engineering Building, H.E.C, Dhurwa, P.O & P.SDhurwa, District-Ranchi, Jharkhand - 834004.

4. Senior Manager (Finance & Accounts), Jharkhand Bijli Vitaran Nigam Limited, having its office at Engineering Building, H.E.C, Dhurwa, P.O & P.S- Dhurwa, District-Ranchi, Jharkhand -834004.

5. 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. ... Respondents

46. Further, the review petition, being Civil Review No. 71 of 2024

had been filed, wherein, paragraphs-18 and 22 of the order dated

08.04.2024 passed in W.P.(T) 5475 of 2023 has been sought for

review, in which, also the Chairman-cum-Managing Director,

JBVNL (present review petitioner) was one of the petitioners, i.e.,

petitioners/respondent no.2., for ready reference, cause title of

order dated 01.08.2024 civil review being Civil Review No. 71 of

2024 is being quoted as under:-

With

---------

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-

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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, DistrictRanchi- 834001. .....

Proforma Respondents/Respondents"

47. The purpose for referring these facts is that the present

incumbent officer, the review petitioner herein was conscious with

the order passed by this Court either by the Coordinate Bench or

by the Review Court, has also gone to the Hon'ble Apex Court

through the Chairman-cum-Managing Director, JBVNL.

48. The further reason for referring the party position is that the

Chairman-cum-Managing Director was fully conscious with the

issue and the order passed by the Coordinate Bench on full

contest based upon the stand taken inter-alia in the counter

affidavit filed under the authority of the Chairman-Cum-Managing

Director of JBVNL.

49. The Chairman-cum-Managing Director, the incumbent, the review

petitioner herein was party before the Court and also filed an

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affidavit, therefore, on the basis of the aforesaid factual aspect,

this Court is of the considered view that recourse of civil review is

not available to the review petitioner on the basis of Para-30 of

the order dated 01.08.2024 wherein this Court has observed that

if the Managing Director was not a party and when the Managing

Director has been saddled with cost of Rs.5 lakh then the same

can only be questioned by the Managing Director by directly

approaching to the Court. But it is not the case herein as the

Chairman-cum-Managing Director, the incumbent, the review

petitioner herein was party before the writ Court as well as before

this Court when the instant issue was taken up in the Civil Review

No. 71 of 2024.

50. It needs to refer herein that the present review petition has been

filed for recall of the said part of the order on the ground that

whatever decision has been taken, i.e., by JBVNL in the capacity

of the Board and there is no individual attributability said to be

committed by the present incumbent.

51. This Court has perused the document appended to the additional

affidavit but no document has been appended thereto said to be a

decision of the Board rather the decision has been shown to be

taken by the subordinate authority, subordinate to the review

petitioner herein, i.e., officer at the rank of Senior Manager,

JBVNL, hence, it is incorrect on the part of the review petitioner to

take the ground that the said decision of retaining the amount is

of the decision of Board, is contrary to the record.

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52. The Senior Manager or any subordinate officer in independent

capacity is not conferred with the power to take any decision of

like nature, save and except, with the approval and under the

authority of Managing Director being the ultimate authority of

JBVNL.

53. Therefore, this Court is of the view that the present incumbent,

the review petitioner herein was fully conscious with the issue,

even then, the amount which was legally admissible to be paid in

favour of the petitioner has been kept in the account of the Board

and by taking into consideration the aforesaid fact, the

Coordinate Bench has passed order directing the JBVNL to make

payment of entire amount.

54. The JBVNL has also been directed to make payment of Rs.5

lakhs for the laches and the arbitrary approach taken by the

Board but the Coordinate Bench has taken into consideration that

why the State Exchequer be allowed to suffer for the laches and

the arbitrary attitude in taking decision contrary to the law,

therefore, the writ Court has observed that cost of Rs.5 Lacs

which has been imposed upon the JBVNL, shall be recovered

from the Managing Director.

55. It needs to refer herein the settled proposition of law that

'Exchequer Should Not Suffer' due the loss caused by illegal

decisions of the public servant. The Hon'ble Apex Court in the

case of Dr. P.N. Shukla and Others Vs. Union of India and

Others, 2023 SCC OnLine SC 1623 while considering a situation

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where a government employee (Respondent no.4 in the appeal

before the Apex Court) was granted upgradation of pay scale,

from the date of his joining, the Apex Court found the same to be

illegal. The Apex Court has observed that the authorities were

hand in gloves with the employee for granting him a higher pay

scale. Since the higher payment made was not a bonafide error,

the Court directed the recovery of the said amount from the 4th

Respondent and from the officers responsible for granting him

undue benefit, for ready reference the relevant paragraph is

being quoted as under:

"Since during the interregnum, the respondent No. 4 had been unjustifiably paid salary in the higher pay scale, one option could be that whatever had been paid to him till date, be left as such and his pay could be directed to be re-fixed from a future date. However, having regard to the level of the post of the respondent No. 4 and the manner in which he was extended special treatment at every step and was granted higher pay scale, we do not propose to adopt that course as this is not a case of any bonafide error. It was a well-planned and deliberate infraction. We therefore direct recovery of the excess amount paid to the respondent No. 4, though in instalments and/or from the officer(s), who were directly involved in the decision-making process of granting undue benefit to the respondent No. 4. Both should be made equally liable to reimburse the exchequer for the amount illegally disbursed to the respondent No. 4. The exchequer should not be made to suffer on that account and either of two shall have to make good that loss of undue benefit granted to the respondent No. 4."

56. Thus, law is well settled that if any individual has committed any

illegality on whatever reason, it will be the accountability of the

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individual concerned to take its liability in stead of shifting it upon

the State. If the liability will be allowed to be shifted, then the

question would be that why the State Exchequer while dealing

with the public money, will be allowed to be overburdened due to

laches committed on the part of the State authority.

57. At the cost of repetition, it needs to refer herein that review petitioner

was party before the writ Court as well as before the Review Court

(Civil Review no. 71 of 2024) wherein the issue involved in the present

lis was adjudicated at length and the same has been affirmed by the