Arpee Electrical Pvt Ltd vs Chief General Manager (Elec)
2023 Latest Caselaw 202 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 4TH DAY OF JANUARY, 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE C.M. POONACHA

       WRIT PETITION NO.3412 OF 2020 (GM-KEB)

BETWEEN

ARPEE ELECTRICAL PVT LTD
B-5 FIRST FLOOR, UNITY BUILDINGS,
J.C.ROAD, BANGALORE-560002,
THROUGH ITS M.D.R.P.GUPTA
                                           ...PETITIONER
[BY SRI R P GUPTA, ADVOCATE (PARTY-IN-PERSON)]

AND

CHIEF GENERAL MANAGER (ELEC)
OPERATIONS BESCOM
BANGALORE ELECTRICITY SUPPLY CO. LTD
K.R.CIRCLE, BANGALORE-560001.
(INCORPORATED UNDER THE
PROVISIONS OF COMPANIES ACT, 1956
WHOLLY OWNED BY GOVT OF KARNATAKA
FORMERLY KNOWN AS KEB)
                                          ...RESPONDENT
(BY SMT SUMANA NAGANAND, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT     TO    PAY     ACCRUED     INTEREST    OF
RS.19,15,97,891/- AS ON 31.01.2018 AND TO PAY 2 PERCENT
P.M COMPOUND INTEREST FROM 01.02.2018 TILL THE ENTIRE
AMOUNT IS PAID WHICH IS STRICTLY BASED ON FACTS AND
                                  2




IN ACCORDANCE TO LAW WHICH ARE NOT IN DISPUTE
AND ETC.


      THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR    ORDERS        ON    15.12.2022,   COMING         ON   FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
                          ORDER

The Petitioner is represented by its Managing

Director who has appeared in person and is aged more

than 80 years.

2. The above Writ Petition is filed seeking the

following reliefs:

"a) To admit the Writ Petition in the interest of justice and equity as justice should be seen to have been done.

b) Issue a Writ in the nature of Mandamus directing the Respondent to pay accrued interest of Rs.19,15,97,891/- as on 31.01.2018 and to pay 2% p.m., compound interest from 01.02.2018 till the entire amount is paid which is strictly based on facts and in accordance to law which are not in dispute.

c) To pass any other order or directions that this Hon'ble Court may deem fit, just and proper in the interest of justice."

3. It is the case of the Petitioner that, it is a Small

Scale Industrial Unit in plot bearing No.A-56, Peenya,

Bengaluru, started in the year 1978-79. That he made an

application to the erstwhile Karnataka Electricity Board

(KEB) presently Bangalore Electricity Supply Company

Limited (BESCOM) (hereinafter referred to as the

'Respondent') on 28.5.1987 for 200 KVA of electricity to

establish a new industrial unit. Pursuant to which, as

demanded by the Respondent, he paid deposit of a total

sum of Rs.1,78,292/-. Thereafter, on 25.5.1991, he

addressed a letter to the competent authority to permit

installation of 2 diesel generator sets of 100KVA each to

start production since no power connection has been given

by the Respondent. That in the year 1992-93, he

addressed various letters to the Respondent to refund the

amount deposited with interest.

4. Despite the same, since the Respondent had

not refunded the amount deposited, on 30.1.2003 he had

filed a petition before the Karnataka Electricity Regulatory

Commissioner (KERC) in OP.No.32/2003. On 8.1.2004,

the KERC passed an order for refund of the deposit after

deducting 10% of the deposited amount and pay interest

at 6% pa., as against the compound interest claimed by

the Petitioner at 2% pm. On 31.1.2004, the Petitioner

filed a Review Petition No.4/2004 before the KERC seeking

for compounded interest at 2% pm. On 9.3.2004, the

Respondent filed WP.No.10168/2004 before this Court

challenging the order dated 8.1.2004 passed by the KERC.

Pursuant to the interim order dated 29.3.2004, passed by

this Court in WP.No.10168/2004, the Respondent

deposited a sum of Rs.1,78,292/- on 21.4.2004 before this

Court. The Review Petition No.4/2004 was disposed off by

the KERC in view of the interim order dated 29.3.2004

passed by this Court. On 16.11.2006, this Court dismissed

the Writ Petition directing the Respondent to avail the

alternate remedy under the Electricity Act, 2003

(hereinafter referred to as 'the Electricity Act'), pursuant to

which, the Respondent filed Appeal No.47/2007 before the

Appellate Tribunal for Electricity (APTEL). The Petitioner

entered appearance in the said proceedings. On

16.5.2007, the APTEL passed an order by consent of the

Respondent as well as the Petitioner, whereunder the

Petitioner was permitted to withdraw the sum of

Rs.1,78,292/- deposited by the Respondent before the

High Court and disposed off the said appeal.

5. Pursuant to the order dated 16.5.2007, the

Petitioner vide letter dated 29.5.2007 sought permission of

the Respondent to withdraw the deposit of Rs.1,78,292/-

with interest in this Court, under protest. The said letter

was replied by the Respondent, vide letter dated

20.6.2007 and accordingly, the Petitioner received the sum

of Rs.1,78,292/- deposited before this Court on 6.7.2007

without any interest.

6. It is the contention of the Petitioner that the

order dated 16.5.2007 of the APTEL is vitiated by fraud

and he has initiated the following proceedings seeking

adjudication of the same:

a) Review Petition No.28/2007 before the APTEL was filed 13.6.2007; which was dismissed on 11.10.2007;

b) Miscellaneous Application under Section 151 of the Code of Civil Procedure, 1908 before the APTEL was filed on 31.3.2007 seeking to reconsider the matter again;

c) Civil Appeal No.2707-2008/2008 before the Hon'ble Supreme Court was filed on 18.12.2007, which was dismissed on 7.4.2008;

d) Restoration Application to restore the Appeal was filed on 29.7.2009 before the APTEL, which was dismissed on 4.5.2016;

e) Review Petition No.7/2013 to recall the order dated 17.10.2013 passed by the KERC in Application No.1/2013 filed in Review Petition No.4/2004 and OP.No.32/2003, which was dismissed on 23.1.2014;

f) Miscellaneous Application in DFR No.1012/2018, filed before the APTEL to quash the order passed by the APTEL in Appeal No.47/2007 and Review Petition No.28/2007, was dismissed on 4.5.2016;

g) Appeal No.2209/2016, which was filed for recalling the order dated 4.5.2016 and earlier orders passed in Appeal No.47/2007 and Review Petition No.28/2007, was dismissed on 21.11.2016;

h) The order dated 4.5.2016 passed in DFR No.395/2014 and the order dated 21.11.2016 passed in Appeal No.2209/2016 were challenged by the Petitioner before the Hon'ble Supreme Court in Civil Appeal Diary No(s).1184/2017, which was dismissed on 29.1.2018;

i) Writ Petition No.17674/2018, which filed for a writ of mandamus to direct the Respondent to consider the representation dated 26.2.2018, to refund the deposit with compounded interest at 2% pm., amounting to Rs.19,15,97,891/-, was allowed by this Court, vide order dated 26.7.2018 directing the Respondent to consider the representation.

j) Contempt Petition in CCC No.2118/2018 was filed alleging disobedience of the order dated 26.7.2018 passed in WP.No.17674/2018. Since the representations of the Petitioner dated 26.2.2018 and 3.3.2018 were considered by the Respondent, vide its reply dated 25.10.2018, this

Court, vide order dated 5.12.2018 dropped the contempt proceedings;

k) Application filed by the Petitioner for recalling the order dated 5.12.2018 passed in CCC No.2118/2018, was rejected by this Court on 24.1.2020;

Consequent to the same, the present Writ Petition is

filed seeking for suitable reliefs.

7. The Respondent has contested the present

proceedings by filing the Statement of Objections and has

sought for dismissal of the Writ Petition contending, inter

alia that the Petitioner is attempting to reopen the

proceedings, after taking refund of a sum of Rs.1,78,292/-

8. It is the contention of the Petitioner, who has

appeared party-in-person that all the orders passed

consequent to the consent order dated 16.5.2007 is a

nullity and the Respondent is not entitled to rely on the

same. It is also contended by the Petitioner that the

Respondent is liable to pay the amount sought in the Writ

Petition which is the amount deposited by him, together

with interest which has been compounded quarterly.

Hence, he seeks for grant of the reliefs sought in the Writ

Petition.

9. The Petitioner has also filed written arguments

on 15.12.2022.

10. The learned Counsel for the Respondent has

made her submissions by filing list of dates and contends,

inter alia that the claim of the Petitioner is not liable to be

granted and the Petitioner has repeatedly filed various

Petitions/Applications in various Courts trying to revive the

claim which he has voluntarily, by consent, closed by

taking refund of the deposit/money. Further, the learned

Counsel submits that the action of the Petitioner in filing

the present Writ Petition tantamounts to criminal contempt

and apart from seeking for dismissal of the Writ Petition,

seeks for initiation of criminal proceedings against the

Petitioner.

11. I have given my anxious consideration to the

submissions of the Petitioner, who has appeared through

its Managing Director, who has appeared in person and the

learned Counsel for the Respondent and perused the

material on record.

12. The question that arises for consideration is:

'Whether the relief sought for in the Writ

Petition is liable to be granted?'

13. The claim of the Petitioner for refund of the

deposit amount was the subject matter of proceedings

before the KERC in OP No.32/2003. The KERC, vide order

dated 8.1.2004, allowed the petition filed by the Petitioner

and directed the Respondent to refund the deposit of the

Petitioner after deducting 10% of the deposited amount as

per Regulation 8.08 of the KERC (Electricity Supply and

Distribution) Code, 2000-2001 and further ordered that

the Petitioner is entitled to interest at prevailing bank rate

of 6% pa., and the balance deposit from the date of

deposit till date of payment. It is further ordered that the

refunded deposit and interest thereupon may be adjusted

against the future electricity consumption of the Petitioner.

The said order dated 8.1.2004, was challenged by the

Respondent in WP.No.10168/2004, which was disposed off

with liberty to the Respondent to approach the APTEL after

coming into force of the Electricity Act, 2003. Accordingly,

the Respondent challenged the order dated 8.1.2004

passed by the KERC in OP No.32/2003, in Appeal

No.47/2007 before the APTEL. The said appeal was

disposed off vide order dated 16.5.2007. The relevant

portion of the order dated 16.5.2007 is extracted

hereinbelow for ready reference:

"However, the appellant is a public body and is expected to be a model organization. Mr. M. G. Ramachandran, advocate appearing on behalf of the appellant, says that the appellant has already made a deposit of Rs.1,78,292 in the High Court of Karnataka and that the amount is likely to have been put by the High Court of Karnataka in an interest bearing deposit. Mr. M.G. Ramachandran also fairly says that without going into the legal disputes raised in the appeal the appellant is willing to allow the respondent to withdraw the amount deposited with the Karnataka High Court along with the interest if any available on that account. The respondent represented by Mr. R.P. Gupta, Managing Director, says that he does not press his claim for interest on his deposits till this date except for whatever may have accrued on the deposit lying with the Karnataka High Court. The instructions from the appellant to the respondent No. 1 asking for deposit also does not indicate that the deposit was to bear any interest.

In view of the above, we feel it appropriate to conclude the matter here by allowing the respondent to withdraw the amount in deposit with the Karnataka High Court as offered by the appellant and accept the amount in full and final settlement of its claim in respect of the aforesaid deposits.

We add that this order will not be read as precedent in respect of the issues relating to the jurisdiction of the Commission and that relating to limitation.

The Court records appreciation for the efforts made by Mr. Amit Kapur, Advocate appearing for the Karnataka Electricity Regulatory Commission, (Resp. No. 2) for his assistance to the Tribunal in settling the matter. We also put on record, the fair stand taken by the learned counsel, Mr. M.G. Ramachandran in the interest of final adjudication of the dispute.

The appeal stands disposed of."

14. The Petitioner filed a Review Petition

No.28/2007 seeking for review of the order dated

16.5.2007 passed by the APTEL in Appeal No.47/2007,

which was dismissed vide order dated 11.10.2007. The

relevant portion of the said order is extracted hereinbelow,

which reads as under:

"4) The second error pointed out in the order is about the liability to pay interest. He says that it is an error because he was entitled to interest. He claims to be entitled to interest in law as well as under the rules binding the respondent-appellant utility. This cannot be treated as an error apparent warranting a review. He

does not dispute that he did not press his claim for interest on May 16, 2007 before this Tribunal which led this Tribunal to pass the order. The review petitioner is today armed with various legal provisions to justify his claim for interest. However, it is beyond the scope of review to go into the question of petitioner's entitlement to interest in law or under the rules and regulations governing utilities.

5) No error apparent in the order dated May 16, 2007 has been pointed out and accordingly no relief can be given to the Review Petitioner.

6) The Review Petitioner has sent a cheque of Rs.1.78.292/- to be kept safe with the Registrar of this Tribunal. This cheque was sent on the Review Petitioner's own volition and without there being any directions in this regard from this Tribunal; the cheque may now be returned to the Review Petitioner.

Accordingly, the Review Petition is dismissed, leaving the parties to bear their own costs."

15. Subsequently, the Petitioner filed Review

Petition No.7/2013 to recall the order dated 17.10.2013

passed on IA.I/2013 filed in Review Petition No.4/2004

and OP.No.32/2003. Vide order dated 23.1.2014, the said

Review Petition No.7/2013 was dismissed. The Petitioner,

thereafter, filed Miscellaneous Application in

DRF.1012/2016 in IA (DRF) 395/2014, to quash the order

passed in Appeal No.47/2007 and Review Petition

No.28/2007. The said Application was dismissed vide

order dated 4.5.2016. The relevant portion is extracted

hereinbelow:

" ............... A statement was made on behalf of the Appellant Bangalore Electricity Supply Co. Ltd., that the Appellant had already made a deposit of Rs. 1,78,292/- in the Karnataka High Court it is stated in the order that Mr. R.P Gupta, Managing Director, Arpee Electricals Pvt. Ltd, made a statement that he does not press his claim for interest on its deposits till this date except for whatever may have accrued on the deposit lying with the Karnataka High Court This Tribunal observed that instructions from the Appellant to M/s Arpee Electricals Private Ltd.

In view of this, this Tribunal allowed M/s Arpee Electricals Private Ltd, to withdraw the amount deposited with Karnataka High Court and accept the amount in full and final settlement of its claim in respect of the said deposits. Being aggrieved by this order M/s Arpee Electricals Private Ltd.. preferred a review petition By order dated 11.10.2007 the review petition being Review Petition No 28 of 2007 was dismissed by this Tribunal holding that there was no error apparent in the order dated 16.5.2007 passed by this Tribunal Today it is admitted by Mr. RP Gupta. Managing Director of the Applicant that he had filed a Special Leave Petition in the Supreme Court being aggrieved by the order dated 11.10 2007 passed by this Tribunal in review petition. The said Special Leave Petition has been dismissed by the Supreme Court In view of the fact that the Supreme Court has dismissed the Special Leave Petition and this Tribunal has allowed the Applicant to withdraw the amount deposited with Karnataka High Court in full and final settlement of its claim in respect of the aforementioned deposits, it is not possible for us to reopen the entire issue. These applications are, therefore, not maintainable and dismissed as such."

16. Thereafter, the Petitioner filed Appeal in DRF

No.2209/2016 for recalling the order dated 4.5.2016

passed in Application No.1012/2016. The said appeal was

dismissed vide order dated 21.11.2016. The relevant

portion reads as under:

" ............ As already noted, vide our order dated 04/05/2016 we have dismissed similar application filed by the Appellant. In our opinion, therefore, this application is not maintainable. Hence, it is dismissed. We hope that the Applicant does not file any more applications of this nature in future in this Tribunal. If the Applicant has any other remedy he is free to prosecute it. On this aspect we have not expressed any opinion."

17. The order dated 4.5.2016 passed by the APTEL

in DRF No.1012/2016 in DRF No.395/2014 and the order

dated 21.11.2016 passed in DRF No.2209/2016, were

challenged by the Petitioner before the Hon'ble Supreme

Court in Civil Appeal Diary No(s).1184/2017, which was

dismissed by order dated 29.1.2018. It is subsequent to

the dismissal of the Civil Appeal filed by the Petitioner

before the Hon'ble Supreme Court that, the Petitioner had

filed WP.No.17674/2018 for consideration of his

representation dated 26.2.2018. A Co-ordinate Bench of

this Court, vide order dated 26.7.2018 allowed the Writ

Petition with a direction to the Respondent to consider the

representation of the Petitioner. The Respondent vide

reply dated 25.10.2018 has considered the representation

of the Petitioner. Thereafter, the proceedings initiated by

the Petitioner in CCC No.2118/2018 alleging disobedience

of the order dated 26.7.2018 passed in WP.No.17674/2018

were dropped vide order dated 5.12.2018 and the

Application to recall the order dated 5.12.2018 was

rejected vide order dated 24.1.2022.

18. It is clear from the aforementioned, that the

Petitioner has initiated various proceedings with regard to

his claim for refund of the deposit, which have been

adjudicated upon by various Courts and the Tribunals as

noticed above. The contention of the Petitioner that all the

judgments/orders passed by various Courts are a nullity is

liable to be rejected, inasmuch, as there is no ground

made out by the Petitioner for putting forth the said

contention.

19. The Claim of the Petitioner for payment of

compounded interest on the deposit at 2% pm., is not

based on any specific contract between the parties or any

provision of law. The representation of the Petitioner

dated 26.2.2018 having been considered by the

Respondent, vide reply dated 25.10.2018 pursuant to the

order dated 26.7.2018 passed in WP.No.17674/2018, the

Petitioner has failed to make out a case that he is entitled

to any further relief as sought in the present Writ Petition.

The question framed for consideration is answered in the

negative. The Writ Petition is liable to be rejected.

20. The oral prayer of the Respondent to initiate

criminal contempt proceedings against the Petitioner is

also not acceded to, having regard to the fact that the

Petitioner is represented by its Managing Director who is

aged 80 years and being a senior citizen has filed various

petitions under the legitimate belief that he is entitled for

the reliefs sought for. In view of the same, this Court does

not deem it appropriate to initiate criminal contempt

proceedings as sought for by the Respondent.

21. In view of the aforementioned, the Writ

Petition fails and is accordingly, rejected.

Sd/-

JUDGE

nd