THE ELECTRICITY DEPARTMENT, REP. BY ITS SUPERINTENDING ENGINEER, PORT BLAIR AND Vs. M/S SURYACHAKRA POWER CORPORATION LTD AND ANR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 3764 of 2016, Judgment Date: Oct 18, 2016

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3764 OF 2016


      THE ELECTRICITY DEPARTMENT, REP. BY ITS
      SUPERINTENDING ENGINEER,PORT BLAIR  AND ANR.               APPELLANTS

                                VERSUS

      M/S SURYACHAKRA POWER CORPORATION LIMITED
      AND ANR.                                                   RESPONDENTS


                            J U D G M E N T


      NARIMAN, J.

1.    The present appeal is a sequel to Civil Appeal No. 1652 of  2015.   By
our judgment and order dated 22nd September, 2016, against the  judgment  of
the Appellate Tribunal  dated  28th  November,  2014,  we  disposed  of  the
aforesaid appeal allowing the appeal only to a limited  extent  and  setting
aside the judgment of the  Appellate  Tribunal  insofar  as  it  allowed  an
increase in interest during construction (IDC), financing charges  (FC)  and
incidental expenses during construction (IEDC) incurred  for  the  delay  in
execution of the project for reasons beyond the control of the respondent.

2.     In  the  second  round  of  litigation,  the  implementation  of  the
aforesaid order of the Appellate Tribunal has taken place, and the  impugned
judgment of the Appellate Tribunal dated 14th March, 2016  has  been  placed
before us.  In particular, a chart extracted  in  paragraph  9.13  has  been
supplied by the Appellate Tribunal indicating how it has arrived at a  total
project cost of Rs. 77.64 crores.  We find that Shri Rakesh Khanna,  learned
senior counsel appearing on behalf of  the  appellants  has  raised  various
submissions before us, most of  which  have  been  raised  and  turned  down
earlier.  We  find  that  item  nos.  1,2,3  &  4  of  the  said  chart  are
unexceptionable for the reason that they strictly conform to  paragraphs  25
and 36 of  the  Appellate  Tribunal  judgment  dated  28th  November,  2014.
However, item no.5 consists of a sum of  Rs.1.84  crores  and  0.84  crores,
being  additional  interest  during  construction,   financing   cost,   and
incidental expenses during construction.   Since  the  earlier  appeal  i.e.
Civil Appeal No. 1652 of 2015 has been allowed to a  limited  extent,  these
figures will have to be deleted and consequently the project cost  will  now
stand as Rs.74.96 crores.

3.    We have been informed that a sum of Rs.15 crores is lying  in  deposit
having been invested by the Registry of  this  Court.   This  sum  has  been
provided by appellant No.1 on 12th July, 2016 pursuant to an  interim  order
of  this  Court.   The  disbursement   of  this  sum   is   dependent   upon
adjudication proceedings pending before  the  Joint  Electricity  Regulatory
Commission, Gurgaon.

4.    We direct the said Commission to complete the  exercise  necessary  in
these  proceedings  positively  within  six  weeks  from  today.    If   the
Commission directs payment of Rs.15  crores  or  more  to  be  made  by  the
appellants to the respondents, the Registry of this  Court  is  directed  to
disburse the amount of Rs. 15 crores with accrued  interest,  if  necessary,
to the Respondents without further reference to this Court.  In case  a  sum
of less than Rs.15 crores is ordered to be  disbursed  to  the  Respondents,
the said sum shall be paid by the  Registry  to  the  Respondents,  and  the
balance lying in deposit,  with  accrued  interest,  shall  be  returned  to
appellant No.1.  In case no  amount  is  payable  to  the  Respondents,  the
Registry shall return  the  amount  in  deposit  with  accrued  interest  to
appellant No.1.

5.    With the above observations, the appeal is disposed of.

            No costs.

                                                       ...................J.
                                                        [KURIAN JOSEPH]


                                                      ....................J.
                                                 [ROHINTON FALI NARIMAN]
  NEW DELHI;
  OCTOBER 18, 2016