Madras High Court
Tamil Nadu Electricity ... vs M/S. E.I.D. Parry India Limited on 21 December, 2021
W.A.No.2598 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2021
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
W.A.No.2598 of 2021
1.Tamil Nadu Electricity Generation
and Distribution Company (TANGEDCO),
Rep. By its Chairman and Managing Director,
No.144, Anna Salai, Chennai – 600 002.
2.The Superintending Engineer,
Karur Electricity Distribution Circle,
Karur.
3.The Superintending Engineer,
Cuddalore Electricity Distribution Circle,
Cuddalore.
4.The Superintending Engineer,
Pudukottai Electricity Distribution Circle,
Pudukottai.
5.The Chief Financial Controller/Revenue,
TANGEDCO,
No.800, Anna Salai, Chennai – 600 002.
6.Deputy Financial Controller,
Karur Electricity Distribution Circle,
Karur. .. Appellants
Vs
Page 1 of 10
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W.A.No.2598 of 2021
M/s. E.I.D. Parry India Limited,
Rep. By its Vice-President – Legal,
Biswa Mohan Rath,
with its Registered Office located at
'Dare House' Parrys Corner,
Chennai – 600 001
and one of its Sugar Factor,
Located at Pugalur, Karur – 639 113. .. Respondent
Appeal preferred under Clause 15 of Letters Patent against the
order dated 15.09.2020 made in W.P.No.9319 of 2020.
For Appellants : Mr.J.Ravindran,
Additional Advocate General
assisted by
Mr.L.Jai Venkatesh
For Respondent : Mr.R.Parthasarathy
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
Challenge in this appeal is made to the order dated 15
September 2020 recorded on W.P.No.9319 of 2020. This appeal is by
the first respondent. The prayer before learned Single Judge was :-
“Writ petitions filed under Article 226 of the
Constitution of India praying to issue a Writ of
Mandamus directing the 2nd, 3rd and 4th
respondents to duly honour the petitioner's export
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W.A.No.2598 of 2021
invoices for the period from 2017 to 31 st May,
2020 along with interest amounting to
Rs.12,43,45,237/- (Rupees twelve Crore Forty
three lakhs forty five thousand two hundred and
thirty seven only).”
2. After hearing the parties and inter alia taking into
consideration the contest put forward including as contained in the
counter, learned Single Judge passed the following order:-
“12. In view of the above, the TANGEDCO cannot
be permitted to take a stand that they will not
make any payment till the earlier writ petition
filed by the petitioner is disposed of.
Unfortunately, the petitioner has already supplied
power to TANGEDCO and are not getting the
payment for the last three years inspite of being
entitled to receive the payment under the power
purchase agreements. The reasons given by the
respondents for not making the payment to the
petitioner is unsustainable and unacceptable to
this Court.
13. In view of the above discussion, there shall
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W.A.No.2598 of 2021
be a direction to the respondents to immediately
take steps to make the payments to the petitioner
towards the invoices raised by the petitioner from
2017 to 31st May 2020. This payment shall be
made within a period of three months from the
date of receipt of the copy of this order.
14. This writ petition is allowed with the above
directions. No costs. Consequently, the connected
miscellaneous petitions are closed.”
3. Heard Mr.J.Ravindran, learned Additional Advocate General
for the appellants and Mr.R.Parthasarathy for the respondent –
original writ petitioner.
4. On behalf of the appellant, it is submitted that the writ
petitioner had alternative remedy which it should have availed and
learned Single Judge should not have entertained the petition at all.
Alternatively it is submitted that, few documents which are required
to be placed on record before learned Single Judge, were not placed
and therefore the appellants be permitted to file review petition. It is
submitted that this appeal be entertained.
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W.A.No.2598 of 2021
5. On the other hand, learned advocate for the respondent –
original writ petitioner has contested this appeal and has submitted
that the contest put forward by the present appellants was argued
before learned Single Judge, the same is considered and answered
and the relief is granted to the petitioner and no interference be
made by this Court. It is submitted that this appeal be dismissed.
6. Having heard learned advocates for the respective parties
and having considered the material on record this Court finds that,
the contest put forward by the present appellants is duly considered
by learned Single Judge. The tenor of the contest is also taken note
of by learned Single Judge, which reflects that even before the writ
petition was filed, the claim of the writ petitioner was already
accepted in principle but the only ground put forward at the stage of
inter se correspondence was the liquidity crunch and subsequently
some different stand is taken. Weighing the material, learned Single
Judge has, in paras 8 to 11 of the judgement noted as under:-
“8.There is absolutely no dispute with regard to
the fact that TANGEDCO has to pay the petitioner
under the power purchase agreements for the
supply of power made by the petitioner to
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W.A.No.2598 of 2021
TANGEDCO during the period from 2017 to 31st
May 2020. The petitioner has raised the invoices
and TANGEDCO did not respond to any of the
invoice raised by the petitioner.
9.In the counter affidavit, a stand has been taken
at paragraph 17 to the effect that TNERC has
passed an order revising the tariff and this
amount has not been paid by the petitioner and
has been challenged before this Court in
W.P.No.24498 of 2018 and the same is pending
and therefore, till this amount is paid, the
TANGEDCO will not make the payments for the
invoices raised by the petitioner.
10.This stand taken by the TANGEDCO is totally
unsustainable. The parties are bound by the
power purchase agreements and this agreements
itself stipulates the tariff rate that has been
mutually agreed by the petitioner and
TANGEDCO. The amount arrived at by the
petitioner is in accordance with the tariff rate
fixed under the agreements and there is no
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W.A.No.2598 of 2021
dispute with regard to the same. Curiously, the
respondents never responded for any of the
invoice raised by the petitioner and for the first
time, a stand has been taken in the counter
affidavit by placing reliance upon the order
passed by the TNERC. The order passed by TNERC
pertains to an interse dispute between Sakthi
Sugars Limited, Tamil Nadu News Print and
Papers Limited and TANGEDCO. The final direction
given by TNERC specifically deals with the
concerned entities involved in the dispute and it
is an order in personam. This order cannot be
applied for any other entity which is not a party
to the proceedings.
11.The TANGEDCO by relying upon this order
attempted to unilaterally revise the tariff and
make a claim against the petitioner. This was
challenged by the petitioner in W.P.24498 of 2018
and this Court stayed the demand made by the
TANGEDCO by an interim order dated 27.09.2018.
The order of the Division Bench relied upon by
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W.A.No.2598 of 2021
the petitioner and which has been extracted
supra, categorically states that where interim
orders are granted by this Court and the same
has not been vacated, varied or modified,
TANGEDCO cannot insist for payment and take
those orders to their advantage. This order
passed by the Division Bench was taken note by
TANGEDCO and a circular was also issued on
23.01.2014, where the directions given by this
Court was brought into force.”
7. We considered the reasons recorded by learned Single Judge
vis-a-vis the material as it stood on record. We do not find any
infirmity in the impugned order.
8.1 So far the argument with regard to alternative remedy to
the writ petitioner is concerned, at this bleated stage, that argument
need not be examined.
8.2 So far the review of the order impugned is concerned, we
find that the order passed by learned Single Judge is dated 15
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W.A.No.2598 of 2021
September 2020. Since there was non-compliance of the direction
therein, the writ petitioner has also initiated proceedings for
compliance thereof and the said proceedings is not going further
considering the pendency of this appeal. This argument therefore
need not be entertained. In totality, we find that no interference is
required in the impugned order.
9. For the reasons recorded above, this writ appeal is
dismissed. No costs. Consequently, connected miscellaneous petition
is closed.
(P.U., J) (S.S.K., J)
21.12.2021
Index:Yes/No
ssm/14
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W.A.No.2598 of 2021
PARESH UPADHYAY, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
ssm
W.A.No.2598 of 2021
21.12.2021
https://www.mhc.tn.gov.in/judis
