Disposed

M/S Bangalore Electricity Supply Company Ltd. v. Satish Sugars Limited

Karnataka HC12 Dec 2022RP/100125/2022

Case brief

AI extract

What is this about?

High Court of Karnataka disposed of a Review Petition filed under CPC, condoning delay. The Court held review cannot be retrospective for supply of power already rendered, modified a prayer in the impugned order, and directed payment of dues up to March 31, 2022.

What did the court decide?

Review petition disposed of; Prayer modified to refer to correct representation; Petitioners directed to pay dues up to 31.03.2022.

M/S Bangalore Electricity Supply Company Ltd. Vs… — Service and Employment | Karnataka HC (2022)

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RP No. 100125 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD

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BENCH

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DATED THIS THE 12^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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REVIEW PETITION NO. 100125 OF 2022 (-)

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BETWEEN:

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M/S BANGALORE ELECTRICITY SUPPLY COMPANY LTD K R CIRCLE, BENGALURU 560001,

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NOW REPRESENTED BY ITS

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GENERAL MANAGER

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[GST AND PP – (F AND C)]

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MANGALORE ELECTRICITY SUPPLY COMPANY LTD., MESCOM BHAVANA, KAVOOR CROSS ROAD, BEJAI, MANGALORE 575004, NOW REPRESENTED BY SUPERINTENDING ENGINEER,

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[ELE (COMMERCIAL)]

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Digitally signed by SUJATA SUBHASH PAMMAR

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HUBLI ELECTRICITY SUPLY COMPANY LIMITED P B ROAD, NAVANAGAR, HUBBALLI 580025, NOW REPRESENTED BY ITS GENERAL MANAGER, (ADMIN AND HRD)

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GULBARGA ELECTRICITY SUPPLY COMPANY LTD. STATION ROAD, KALABURAGI 585101, NOW REPRESENTED BY CHIEF ENGINEER, (ELE) OPERATION.

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CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LTD. NO. 29

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RP No. 100125 of 2022

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KAVERI GRAMEENA BANK ROAD, VIJAYANAGAR, 2ND STAGE. MYSORE 570017

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NOW REPRESENTED BY THE GENERAL MANAGER (COMMERCIAL)

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…PETITIONERS

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(BY SRI. S SRIRANGA, SENIOR COUNSEL

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FOR SRI.ASHOK PRADYUMNA K.V., ADVOCATE)

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AND:

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SATISH SUGARS LIMITED HAVING ITS REGISTERED OFFICE AT P O OBX 1 GOKAK, SANGANKERI YADAWAD ROAD, HUNSHYAL P G GOKAK, BELGAUM 591224, (REPRESENTED BY ITS AUTHORIZED SIGNATORY)

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THE STATE OF KARNATAKA DEPARTMENT OF ENERGY VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU 560001

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KARNATAKA ELECTRICITY REGULATORY COMMISSION NO. 16, C-1,MILLERS TANK, RED AREA, VASANTH NAGAR, BENGALURU 560052, REPRESENTED BY ITS SECRETARY.

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…RESPONDENTS

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(BY SRI. SHRIDHAR PRABHU, ADVOCATE FOR R1, SMT. GIRIJA HIREMATH, HCGP FOR R2, SRI.B.N.PRAKASH, ADVOCATE FOR R3)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 READ WITH ORDER 47 RULE 1 OF CPC, 1908, PRAYING TO ALLOW THE PRESENT REVIEW PETITION AND REVIEW THE JUDGMENT DATED 08.11.2021 PASSED IN WP NO. 103489 OF 2021 AND DISMISS THE SAME, IN THE INTEREST OF JUSTICE.

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RP No. 100125 of 2022

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THIS REVIEW PETITION COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Accepting the reasons stated in support of I.A.No.1/2022, delay of 211 days in filing the above petition is condoned.

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The petitioners are before this Court seeking for review of the order dated 08.11.2021 passed in Writ Petition No.103489/2021.

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Sri.S.Sriranga, learned Senior counsel would submit that:

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3.1. By inadvertence when the above order dated 08.11.2021 was passed, it could not be brought to the notice of this Court that the power purchase agreement entered into with Renuka Sugars which was subject matter of Writ Petition No.6043/2021 stands on a different footing than that entered into between the

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RP No. 100125 of 2022

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petitioners and respondent No.1 namely Satish

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Sugars Limited.

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3.2. It is on account of the same not being placed before this Court a factual error has occurred which is contrary to the available records.

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3.3. Inasmuch as in the power purchase agreement entered into with Renuka Sugars, the term of the agreement was for a period of five years from the date of commencement of power supply i.e. from 16.17.2021, whereas in the present case in terms of the agreement entered into with Satish Sugars Limited, the term of the agreement is from the date of power purchase agreement to 2020-2021.

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3.4. Therefore, he submits that the term of the agreement came to an end on 31^st March 2021 and if that had been brought to the notice of this Court then it is unlikely that this Court

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RP No. 100125 of 2022

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would have passed an order as done on 08.11.2021.

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3.5. In view of the said order dated 08.11.2021, the said Satish Sugars Limited has been evacuating power into the grid of the petitioners and therefore the petitioners are being called upon to make payment of monies for a period beyond the contractual period at the contractual rate when in fact there is a vacuum in the power purchase price and the same would be required to be determined by the Karnataka Electricity Regulatory Commission (KERC).

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3.6. He further submits that there is a further factual error in the petition itself inasmuch as at prayer-C to the petition what has been sought for is a mandamus directing the respondents to consider the representation dated 26.03.2021

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RP No. 100125 of 2022

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produced at Annexure-G. When in fact there is no such representation at Annexure-G. Annexure-G being the power purchase agreement dated 18^th January 2018. Hence, the question of consideration of power purchase agreement as a representation would not arise.

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3.7. It is in that background he submits that this fact came to be realized when the contempt proceedings was filed and it is for that reason that the review petition has been presented before this Court.

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Per contra, Sri.Shridhar Prabhu, learned counsel for respondent No.1 would submit that:

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4.1. Power purchase agreement has been entered into in pursuance of the directions issued by the Government of Karnataka and the same are for a period of five years from the effective date of

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RP No. 100125 of 2022

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agreement i.e. the date from which power supply had commenced.

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4.2. In the present case, agreement having been entered into on 18.01.2018, it would be in force for a period of five years till 2023 i.e. end of 31^st March, 2023.

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4.3. However, he submits that the said Satish Sugars Limited had stopped supply of power as on 31.03.2022 itself, as regards which some payments are due.

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4.4. There was a mistake in prayer-C which had

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been sought for. What was being referred to was Annexure-J being a representation made by the South Indian Sugar Mills Association Karnataka (for short, SISMA), dated 11.12.2020 and by a typographical error Annexure-G has been mentioned by mixing it up with the date of power purchase agreement.

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RP No. 100125 of 2022

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4.5. He therefore submits that it was the said representation of SISMA which was required to be considered by issuance of a mandamus.

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Heard Sri.S.Sriranga, learned Senior counsel for the petitioners and Sri.Shridhar Prabhu, learned counsel for respondent No.1.

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The above proceedings are for review of the order dated 08.11.2021. When the order dated 08.11.2021 was passed in open Court in the presence of all the counsels, it was not brought to the notice of this Court the difference in Clause 8.1 between the agreement entered into with Renuka Sugars and that entered into with Satish Sugars Limited. It is only now on 27.10.2022 that the review petition was filed placing the above facts on record.

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Normally, in a review petition whenever an order is reviewed, the order would date back to the date of the order being reviewed. But, however considering

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RP No. 100125 of 2022

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that the review sought for in the present matter would have financial implications, the same cannot be made retrospective when Satish Sugars Limited has acted upon it and supplied the power until 31.03.2022.

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As such, review of the said order could only at the most would date back to the date on which the review petition was filed, which would also be improper and as such the review of an order having financial implication could only be prospective in nature taking effect from the date on which the order of review is passed.

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The same has also been rendered academic in view of the fact that Satish Sugars Limited has stopped supplying power to the petitioners as on 31.03.2022 and there is no claim post 31.03.2022 made by Satish Sugars Limited against the petitioners. Needless to say that the petitioners are not required

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RP No. 100125 of 2022

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to make payment of any money post 31.03.2022 to Satish Sugars Limited on account of power purchase agreement dated 18.01.2018.

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In view of the above, the factual mistakes being admitted by both the counsels, the prayer issuing a mandamus to consider the representation dated 26.03.2021 at Annexure-G is required to be modified since admittedly, the same relates to representation issued by SISMA dated 11.12.2021. Hence, sub para (iii) of para 7 of the operative portion of order dated 08.11.2021 passed in Writ Petition No.103489/2021 is modified to read as under:

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“ ….. representation dated 11.12.2021 at

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Annexure-J to the writ petition”

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The other submission made by Sri.Sriranga, learned Senior counsel that there is vacuum in the power purchase price and it is the KERC that would have to determine the amounts until 31.03.2022 cannot be

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RP No. 100125 of 2022 agitated in a review petition inasmuch as the order having passed in the presence of all the parties the supply of power was continued on payment of the monies and it is only after a delay of 211 days that the above review petition has been filed.

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Satish Sugars Limited cannot therefore be deprived of the benefit of the order dated 08.11.2021. The supply of power having stopped from 31.03.2022 the petitioners would have to make payment of the power purchase price in the power purchase agreement dated 18.01.2018 till 31.03.2022.

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Needless to say that thereafter no payments are required to be made.

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Review petition is disposed off accordingly.

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SH List No.: 1 Sl No.: 1

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Sd/JUDGE

M/S Bangalore Electricity Supply Company Ltd. v. Satish Sugars Limited

Case brief

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M/S Bangalore Electricity Supply Company Ltd. v. Satish Sugars Limited

Case brief

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