* Author
[2024] 3 S.C.R. 1023 : 2024 INSC 213
Jaipur Vidyut Vitran Nigam Ltd. & Ors.
v.
Adani Power Rajasthan Ltd. & Anr.
Miscellaneous Application Diary No. 21994 of 2022
In
Civil Appeal Nos. 8625 – 8626 of 2019
18 March 2024
[Aniruddha Bose* and Sanjay Kumar, JJ.]
Issue for Consideration
When can a litigant apply for modification of a judgment or an
order in a matter which stands finally concluded; and can a party
file an application after disposal of the statutory appeal by invoking
inherent powers of the Supreme Court.
Headnotes
SUPREME COURT RULES, 2013 - Order XII, Rule 3 – Scope
thereof, explained – Filing of applications after disposal of
the statutory appeal:
Held: Impermissible – A post disposal application for modification
and clarification of an order shall lie only in rare cases, where the
order passed by the Supreme Court is executory in nature and
the directions of the Supreme Court have become impossible
to be implemented because of certain subsequent events or
developments – After disposal of an appeal / petition, the Supreme
Court becomes functus officio and does not retain jurisdiction to
entertain any application. [Para 20]
SUPREME COURT RULES, 2013 – Practice and Procedure –
Application projected as an application for clarification, though
it was registered as a miscellaneous application – Practice
deprecated.
Code of Civil Procedure, 1908 – Order XXIII, Rule 1 – Scope
thereof, explained.
Held: There are two Orders in the Supreme Court Rules, 2013
which permit review of a judgment or an order of the Supreme
Court, Orders XLVII and XLVIII – The former Order, contained in
1024 [2024] 3 S.C.R.
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Part IV of the 2013 Rules, relates to “Review of a Judgment” and
the latter relates to “Curative Petition” – There is no other provision
in the 2013 Rules, whereby a litigant can apply for modification of
a judgment or an order of the Supreme Court in a matter which
stands finally concluded – By taking out a Miscellaneous Application,
the applicant cannot ask for reliefs which were not granted in the
main judgment itself. [Para 10]
Through this miscellaneous application, the applicant seeks a
direction upon the Rajasthan Discoms for making payment of
Rs.1376.35 crores – The present application has been captioned
as “APPLICATION FOR DIRECTIONS ON BEHALF OF THE
RESPONDENT NO.1/APPLICANT (ADANI POWER RAJASTHAN
LIMITED)” in the said appeals which stood disposed of by a
common judgment of a three-Judge Bench of the Supreme
Court delivered on 31.08.2020 – Review petitions filed against
this judgment by the Rajasthan Discoms stood dismissed on
02.03.2021. [Para 2]
In the course of hearing, it was projected as an application for
clarification, though the same was registered as a miscellaneous
application – The reliefs asked for in this application do not refer
to any clarification. [Para 9]
The applicant had expressed its desire to withdraw the present
application on the last date of hearing, i.e., 24.01.2024 – The
Supreme Court, however, decided not to permit such simpliciter
withdrawal – Even if an applicant applies for withdrawal of an
application, in exceptional cases, it would be within the jurisdiction of
the Supreme Court to examine the application and pass appropriate
orders – So far as the present proceeding is concerned, an important
question of law has arisen as regards jurisdiction of the Supreme
Court to entertain an application taken out in connection with a set
of statutory appeals which stood disposed of – Judgment of the
Supreme Court in Supertech Limited v. Emerald Court Owner
Resident Welfare Association & Others, (2023) 10 SCC 817
deals with this question and the ratio of the said judgment would
apply to the present proceeding as well. [Para 19]
The Supreme Court becomes functus officio and does not retain
jurisdiction to entertain an application after the appeal was disposed
of by the judgment of a three-Judge Bench of the Supreme
Court – This is not an application for correcting any clerical or
arithmetical error – Neither it is an application for extension of
[2024] 3 S.C.R. 1025
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
time – A post disposal application for modification and clarification
of the order of disposal shall lie only in rare cases, where the
order passed by the Supreme Court is executory in nature and the
directions contained in the judgment may become impossible to
be implemented because of subsequent events or developments–
The factual background of this Application does not fit into that
description. [Para 20]
SUPREME COURT RULES, 2013 - Order XII, Rule 3 read with
Rule 6 of Order LV – Filing of applications after disposal of the
statutory appeal by invoking inherent powers of the Supreme
Court – Held, impermissible.
Held: The maintainability of the present application cannot be
explained by invoking the inherent power of the Supreme Court
either – The applicant has not applied for review of the main
judgment – In the contempt action, it failed to establish any wilful
disobedience of the main judgment and order – Now the applicant
cannot continue to hitchhike on the same judgment by relying on
the inherent power or jurisdiction of this Court. [Para 13]
Code of Civil Procedure, 1908 – Section 152 read with Order XII,
Rule 3 of the SUPREME COURT RULES, 2013 – Rectification
of an arithmetic order – permissibility thereof.
Held: A miscellaneous application had been filed for modification
of the content of judgment dated 1st September 2020 passed
in M.A. (D) No. 9887 of 2020 in Civil Appeal Nos. 6328-6399
of 2015 – In the said proceeding, clarification was also sought
on the aspect that the judgment did not bar the Union of India
from considering and rectifying the clerical/arithmetical errors
in computation of certain dues – This was an order permitting
rectification of an arithmetic error, which is implicit in Section 152
of the CPC read with Order XII Rule 3 of the 2013 Rules. [Para 18]
Code of Civil Procedure, 1908 – Section 148 read with Section
112 - Power of the Supreme Court to extend time.
Held: The power to extend time beyond that fixed by a Court on a
legitimate ground is incorporated in Section 148 of the CPC – If the
time to do something requires to be extended, it would be within
the inherent jurisdiction of the Supreme Court to go beyond the
maximum period of 30 days prescribed in the aforesaid Section,
after sufficient reason is shown – Section 112 of the Code itself
provides that nothing contained in the CPC shall affect the inherent
1026 [2024] 3 S.C.R.
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powers of the Supreme Court under Article 136 or any other
provision of the Constitution. [Para 17]
SUPREME COURT RULES, 2013 - Order XII, Rule 3 – Imposition
of costs on filing of applications after disposal of the statutory
appeal.
Held: The Supreme Court dismissed the present application and
imposed costs of Rs. 50,000/- to be paid by the applicant to be
remitted to the Supreme Court Legal Aid Committee as it was
listed several times. [Para 23]
Case Law Cited
Ghanashyam Mishra & Sons Private Limited v.
Edelweiss Asset Reconstruction Company Limited,
[2021] 13 SCR 738 : M. A. No. 1166 of 2021 in CA
No. 8129 of 2019 – relied on.
Supertech Limited v. Emerald Court Owner Resident
Welfare Association & Others [2021] 10 SCR 569 :
(2023) 10 SCC 817 – Relied on.
State (UT of Delhi) v. Gurdip Singh Uban and Others
[2000] Suppl. 2 SCR 496 : (2000) 7 SCC 296; Sone
Lal and Others v. State of Uttar Pradesh (1982) 2 SCC
398; Ram Chandra Singh v. Savitri Devi and Others
[2003] Suppl. 4 SCR 543; (2004) 12 SCC 713; Common
Cause v. Union of India and Others (2004) 5 SCC 222;
Zahira Habibullah Sheikh and Another v. State of Gujarat
and Others [2004] Suppl. 2 SCR 571 : (2004) 5 SCC
353; P.N. Eswara Iyer and Others v. Registrar, Supreme
Court of India [1980] 2 SCR 889 : (1980) 4 SCC 680;
Suthendraraja alias Suthenthira Raja alias Santhan
and Others v. State through DSP/CBI, SIT, Chennai
[1999] Suppl. 3 SCR 540 : (1999) 9 SCC 323; Ramdeo
Chauhan alias Raj Nath v. State of Assam [2001] 3 SCR
669 : (2001) 5 SCC 714; Devendra Pal Singh v. State
(NCT of Delhi) and Another [2002] Suppl. 5 SCR 332
: (2003) 2 SCC 501; Rashid Khan Pathan in re (2021)
12 SCC 64 – referred to.
Energy Watchdog v. Central Electricity Regulatory
Commission and Others, MA Nos. 2705 – 2706 of
[2024] 3 S.C.R. 1027
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
2018 in Civil Appeal Nos. 5399 – 5400 of 2016;
Uttar Haryana Bijli Vitran Nigam Ltd. & Anr. V. Adani
Power (Mundra) Limited, MA (D) No. 18461 of 2023 in
Civil Appeal No. 2908 of 2022; Kalpataru Properties
Pvt. Ltd. v. Indiabulls Housing Finance Ltd., MA No.
2064 of 2022 in Civil Appeal No. 7050 of 2022;
Supertech Limited v. Emerald Court Owner Resident
Welfare Association & Ors., MA No. 1918 of 2021
in Civil Appeal No. 5041 of 2021; Union of India v.
Association of Unified Telecom Service Providers of
India and Ors., MA No. 83 of 2021 in MA (D) No.
9887 of 2020 in Civil Appeal No. 6328-6399 of
2015] – distinguished.
List of Acts
Code of Civil Procedure, 1908; Supreme Court Rules, 2013.
List of Keywords
Miscellaneous Application, Clarification Application, Modification
Application, Costs, Inherent Powers, Maintainability, Post Dismissal
Application.
Case Arising From
CIVIL APPELLATE JURISDICTION : Miscellaneous Application Diary
No.21994 of 2022
In
Civil Appeal Nos.8625-8626 of 2019
From the Judgment and Order dated 31.08.2020 in C. A. Nos.8625-
8626 of 2019 of the Supreme Court of India
Appearances for Parties
Dushyant Dave, Sr. Adv., Kartik Seth, Anshul Chowdhary, Prashanth
R. Dixit, Ms. Arushi Rathore, Abhishek Kandwal, Amit Goyal, Mahesh
Bhati, Saurabh Chaturvedi, M/s. Chambers of Kartik Seth, Advs. for
the Appellants.
Dr. A.M. Singhvi, Sr. Adv., Mahesh Agarwal, Ms. Poonam Sengupta,
Arshit Anand, Shashwat Singh, Ms. Sakshi Kapoor, Saunak Rajguru,
Sidharth Seem, E. C. Agrawala, Advs. for the Respondents/Applicants.
1028 [2024] 3 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Aniruddha Bose, J.
The applicant, Adani Power Rajasthan Limited (APRL), is a generating
company as per Section 2(28) of the Electricity Act, 2003 (“2003
Act”). It operates a thermal power plant in the State of Rajasthan.
There were three appellants (1 to 3) in the main set of appeals, in
connection with which the present application has been taken out,
being the distribution licensees of the State of Rajasthan as per the
provisions of the 2003 Act. They shall, henceforth in this judgment,
be collectively referred to as “Rajasthan Discoms”. Rajasthan Urja
Vikas Nigam Limited was the 4th appellant in the main set of appeals.
It appears to have been formed by the Government of Rajasthan for
the purpose of coordination among the aforesaid three Discoms, as
also other distribution licensees of the State.
2. Through this miscellaneous application, the applicant seeks a direction
upon the Rajasthan Discoms for making payment of Rs.1376.35
crore towards Late Payment Surcharge (“LPS”). This claim has been
raised by the applicant citing Article 8.3.5 of the Power Purchase
Agreement dated 28.01.2010 (“PPA-2010”) entered into between
the Rajasthan Discoms and the applicant. The present application
has been captioned as “APPLICATION FOR DIRECTIONS ON
BEHALF OF THE RESPONDENT NO.1/APPLICANT (ADANI
POWER RAJASTHAN LIMITED)” in the said appeals which stood
disposed of by a common judgment of a three-Judge Bench of this
Court delivered on 31.08.2020. Review petitions filed against this
judgment by the Rajasthan Discoms stood dismissed on 02.03.2021.
3. The appeals arose out of a dispute involving certain additional
payments claimed by the applicant as per the PPA-2010. Under the
agreement, the applicant was to supply electricity to the Rajasthan
Discoms, which had to be generated by the applicant. For this
purpose, the PPA-2010 postulated domestic coal as the primary
source of energy, while imported coal was to be used as a backup
option. The applicant’s complaint was that, due to non-availability
of sufficient domestic coal, it could not be allocated a domestic coal
linkage by the Government of India and it was compelled to rely on
imported coal from Indonesia, which had a higher cost. Claim for
compensation of loss, caused on account of non-supply of domestic
[2024] 3 S.C.R. 1029
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
coal, was raised by the applicant before the Rajasthan Electricity
Regulatory Commission (“RERC”), invoking the change in law clause
of the PPA-2010. Change in law was one of the conditions under
the PPA-2010, for which tariff adjustment payment could be made
by the seller of electricity following the procedure stipulated in the
aforesaid agreement. By an order dated 17.05.2018, RERC held
that the applicant would be entitled to relief on account of change
in law, which was held to be the difference between actual landed
cost of alternative/imported coal (as certified by the auditor) and
actual landed cost of domestic linkage coal. This was recorded in
an order passed on 25.02.2022 by a Coordinate Bench of this Court
in a contempt action brought by the applicant [Contempt Petition
(Civil) No(s) 877-878 of 2021]. We shall refer to the said proceeding
later in this judgment. We also need not delve into the question of
eligibility of the applicant to get additional sum on account of change
in law, as that question stands finally decided in the main judgment.
4. The applicant had also raised another claim for additional payment
before the RERC, under the head of carrying cost which was
disallowed by the RERC. Rajasthan Discoms, being aggrieved by
the grant of change-in-law compensation, as also the applicant, being
aggrieved by rejection of the claim for carrying costs appealed against
the order of the RERC before the Appellate Tribunal for Electricity
(“APTEL”). By a common decision dated 14.09.2019, the APTEL
found that the applicant’s claim based on “change in law” was valid
and opined that the applicant was entitled to compensation for the
loss caused to it because of change in law under a subsequent coal
supply scheme, termed as the SHAKTI scheme, which failed to provide
domestic coal linkage. The APTEL further found that the applicant
would also be entitled for payment towards applicable carrying cost.
The Rajasthan Discoms had appealed against the common decision
of APTEL before this Court. The three-Judge Bench of this Court,
by the judgement dated 31.08.2020, dismissed the appeals with the
following observations and directions: -
“66. Considering the facts of this case and keeping in
view that the RERC and APTEL have given concurrent
findings in favour of the respondent with regard to change
in law, with which we also concur, we may now deal with
the question of liability of appellants-Rajasthan Discoms
with regard to late payment surcharge. In this regard, the
1030 [2024] 3 S.C.R.
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following Articles 8.3.5 and 8.8 of PPA, which are relevant
for the present purpose, are extracted hereunder:
“8.3.5. In the event of delay in payment of a Monthly Bill
by the Procurers beyond its Due Date, a Late Payment
Surcharge shall be payable by such Procurers to the Seller
at the rate of two percent (2%) in excess of the applicable
SBAR per annum, on the amount of outstanding payment,
calculated on a day to day basis (and compounded with
monthly rest), for each day of the delay. The Late Payment
Surcharge shall be claimed by the Seller through the
Supplementary Bill.
8.8 Payment of Supplementary Bill
8.8.1 Either Party may raise a bill on the other Party
(supplementary bill) for payment on account of:
i) Adjustments required by the Regional Energy
Account (if applicable):
ii) Tariff Payment for change in parameters,
pursuant to provisions in Schedule 4; or
iii) Change in Law as provided in Article 10, and
such Supplementary Bill shall be paid by the
others party.
8.8.2 The Procurers shall remit all amounts due
under a Supplementary Bill raised by the Seller to
the Seller’s Designated Account by the Due Date and
notify the Seller of such remittance on the same day
or the Seller shall be eligible to draw such amounts
through the Letter of Credit. Similarly, the Seller shall
pay all amounts due under a Supplementary Bill
raised by Procurer(s) by the Due Date to concerned
Procurer’s designated bank account and notify such
Procurer(s) of such payment on the same day.
For such payments by the Procurer(s), Rebate as
applicable to Monthly Bills pursuant to Article 8.3.6
shall equally apply.
8.8.3 In the event of delay in payment of a
Supplementary Bill by either Party beyond its Due
[2024] 3 S.C.R. 1031
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
Date, a Late Payment Surcharge shall be payable
at the same terms applicable to the Monthly Bill in
Article 8.3.5.
8.9 The copies of all; notices/offers which are required
to be sent as per the provisions of this Article 8, shall
be sent by a party, simultaneously to all parties.”
Liability of the Late Payment Surcharge which has been
saddled upon the appellants is at the rate of 2% in
excess of applicable SBAR per annum, on the amount of
outstanding payment, calculated on a day to day basis
(and compounded with monthly rest) for each day of the
delay. Therefore, there shall be huge liability of payment
of Late Payment Surcharge upon the appellants-Rajasthan
Discoms.
67. With regard to the question of interest/late payment
surcharge, we notice that the plea of change in law was
initially raised by APRL in the year 2013. A case was also
filed by APRL in the year 2013 itself raising its claim on
such basis. However, the appellants-Rajasthan Discoms
did not allow the claim regarding change in law, because
of which APRL was deprived of raising the bills with effect
from the date of change in law in the year 2013. We
are, thus, of the opinion that considering the totality of
the facts of this case and in order to do complete justice
and to reduce the liability of the appellants-Rajasthan
Discoms, payment of 2 per cent in excess of the applicable
SBAR per annum with monthly rest would be on higher
side. In our opinion, it would be appropriate to direct the
appellants-Rajasthan Discoms to pay interest/late payment
surcharge as per applicable SBAR for the relevant years,
which should not exceed 9 per cent per annum. It is also
provided that instead of monthly rest, the interest would
be compounded per annum.
68. We accordingly direct that the rate of interest/late
payment surcharge would be at SBAR, not exceeding 9
per cent per annum, to be compounded annually, and the
2 per cent above the SBAR (as provided in Article 8.3.5
of PPA) would not be charged in the present case.
1032 [2024] 3 S.C.R.
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69. Before we part with the case, we may notice that
Shri Prashant Bhushan, raised the submission with
respect to over-invoicing. He attracted our attention to the
investigation pending before the DRI. He has submitted
that 40 importers of coal are under investigation by the DRI
concerning alleged over-invoicing. The letter of rogatory
was issued. However, leamed counsel conceded that there
is no ultimate conclusion in the investigation reached so far.
Thus, we are of the opinion that until and unless there is
a finding recorded by the competent court as to invoicing,
the submission cannot be accepted. At this stage, it cannot
be said that there is over-invoicing. We have examined
the case on merits with abundant caution, and we find
that there are concurrent findings of facts recorded by the
RERC and the APTEL. With respect to the aspect that
bid was premised on domestic coal, we find that findings
recorded do not call for any interference.”
5. The applicant had filed contempt proceedings alleging disobedience
of the said judgment and order, which were registered as Contempt
Petition (C) Nos. 877-878 of 2021. We have already referred to this
proceeding. In the contempt proceeding, the applicant’s position
gets reflected in the submissions of its learned senior counsel,
recorded in paragraph 6 of the order passed on 25.02.2022 (One
of us, Aniruddha Bose, J., was a party to this order). The relevant
portion of that order is reproduced below:-
“6. Shri Abhishek Manu Singhvi, learned Senior Counsel
appearing for the petitioner has submitted that the only
dispute which was to be resolved by RERC, APTEL and
this Court was with regard to the payment due because of
“change in law”, which was held to be the actual landed
cost of alternate coal/imported coal as certified by the
auditor minus landed cost of domestic linkage coal. There
was no other dispute which was to be resolved by this
Court. Learned Senior Counsel has submitted that it is
now contended by the respondents that certain payments
have been made by the respondents which, according to
the learned Senior Counsel, was towards regular payment
on the basis of domestic linkage coal and nothing else.
Since, the “change in law” ground of the petitioner has been
[2024] 3 S.C.R. 1033
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
accepted by all the authorities i.e. RERC, APTEL and this
Court and also confirmed by the dismissal of the Review
Petition filed before this Court, the question cannot now be
reopened at this stage. It is, thus, submitted that since the
actual landed cost of alternate coal/imported coal as was
submitted by the petitioner has been duly certified by the
auditors, which has not been disputed by the respondents,
the payment, as claimed, ought to have been made and
since the same has not been paid, the respondents are
liable for contempt. The further contention of the learned
Senior Counsel of the petitioner is that the claim of the
respondents that they had paid certain amount towards
energy charges regularly month by month, which included
certain amount of price of alternate coal/imported coal
charges cannot be accepted, as at that stage i.e. in the
year 2013, the respondents had not accepted the claim
of the petitioner with regard to “change in law”, and the
assertion now being made by the respondents that they had
paid certain amount after partially accepting the “change
in law” theory cannot be accepted, as this issue had never
been raised by respondents in any proceedings earlier, as
the respondents had, in fact, throughout contested that
the petitioner is not entitled to the “change in law” benefit.”
6. The allegations of non-compliance with the judgment of the threeJudge Bench were dealt with by the Coordinate Bench in the aforesaid
order passed on 25.02.2022. It was, inter-alia, observed and directed
in the said order:-
“9. Firstly, what we have to consider is only the effect of
“change in law”, which as per RERC, API’EL and this Court
would be the actual landed cost of alternate coal/ imported
coal minus the landed cost of domestic linkage coal. The
question of any claim which the respondents may have
against the petitioner, is not an issue before us. As per the
principle laid down by RERC and affirmed up till this Court,
the petitioner has claimed an amount of Rs.5344. 75 crores
up to March, 2021. The said principle having been affirmed
by the APTEL as well as by this Court and even in Review
Petition, cannot be reopened now. It cannot be disputed
that after March, 2021 also, the petitioner would be entitled
1034 [2024] 3 S.C.R.
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to payment on the basis of the same calculation, which up
to November, 2021 comes to Rs.130.69 crores. As such,
the due amount up to November 2021 would be Rs.5344.
75 + Rs.130.69 = 54 75.44 crores. Out of this amount of
Rs.54 75.44 crores, the petitioner has been paid a sum
of Rs.2426.81 crores in terms of the interim order passed
by this Court. Hence, as per the petitioner, the balance
amount of Rs.3048.63 crores would remain due to be
paid up to November, 2021. The interest at the maximum
rate of 9% per annum, as capped by this Court vide its
judgment and order dated 31.08.2020, is to be applied on
the said amount, from the date the amount became due,
till the date of actual payment. The further claim of late
payment surcharge, amounting to Rs.2477.70 crores, as
per the petitioner, would be a subject matter which the
petitioner, if so advised, can claim before the appropriate
forum, as the same is not the subject in question in the
present proceedings, regarding which no directions have
also been issued by this Court.
10. As such, considering the totality of facts and
circumstances of this case, prima face we are of the
opinion that the respondents are liable for contempt for
not complying this Court’s order dated 31.08.2020. We,
thus, direct the respondents to pay to the petitioner, the
principal amount (as per the terms/norms laid down in the
judgment of this Court dated 31.08.2020) minus Rs.2426.81
crores deposited by the respondents in terms of the interim
order dated 29.10.2018 (which, as per the petitioner, the
balance payable amount would be Rs.3048.63 crores)
along with interest as per the applicable SBAR for the
relevant years, which should not exceed 9% per annum
(to be compounded annually), from the date the amount
became due till the date of actual payment, within four
weeks from today, failing which the respondents shall
appear before this Court in person, on the next date, so
as to enable this Court to frame charges.”
7. The contempt petitions were subsequently directed to be closed by
another Coordinate Bench of this Court and order to that effect was
passed on 19.04.2022. In this order, it was, inter-alia, observed:-
[2024] 3 S.C.R. 1035
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
“With regard to the first question it may only be observed
that by order dated 25.02.2022 passed in these contempt
petitions, this court, in paragraph no. 9, has observed as
under:
“The further claim of late payment surcharge,
amounting to Rs.2477.70 crores, as per the
petitioner, would be a subject matter which
the petitioner, if so advised, can claim before
the appropriate forum, as the same is not the
subject in question in the present proceedings,
regarding which no directions have also been
issued by this Court.”
As such, since according to the respondent(s) the payment
made is only towards the principal amount plus 9% interest
per annum, we are not inclined to pass any further orders
as we have already left the question of late payment
surcharge open, which the petitioner, if so advised, can
claim before the appropriate forum.
As regards the second question of the alleged noncompliance, by the respondents after November, 2021
of the judgment and order dated 31.08.2020, we would
not like to make any observation as there is neither. any
material before us with regard to that nor the same was
in question when the contempt petitions were filed. As
such, we leave this question open to be agitated by the
petitioner, of it is so advised.
With regard to the last issue raised by the respondents,
which is to the effect that the claim of the Rajasthan
Utilities against the petitioner outside the judgment dated
31.08.2020 be permitted to be made, we would only like to
observe that the same cannot be a matter to be considered
in a contempt petition and as such neither we are inclined
to grant any such relief nor stop them from raising any
such issue, if the respondents are so advised and found
entitled under the law. With the aforesaid observations,
we close these contempt petitions.”
8. After institution of the present application on 19.07.2022, it was heard
from time to time and finally on 24.01.2024, when this matter was
1036 [2024] 3 S.C.R.
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called on for hearing, Dr. Abhishek Manu Singhvi, learned senior
counsel, appearing for the applicant, sought leave to withdraw the
application. Mr. Dushyant Dave, learned senior counsel appearing for
the Rajasthan Discoms, however, opposed such prayer and his case
was that the present application, having been taken out in an appeal
which stood disposed of, did not lie and it should be dismissed on
the ground that it is not maintainable. Mr. Dave drew our attention
to paragraph 67 of the judgment of the three-Judge Bench, which
we have quoted above. The issue of LPS has been dealt with by
the three-Judge Bench in the said passage.
9. In the course of hearing, it was projected as an application for
clarification, though the same was registered as a miscellaneous
application. The reliefs asked for in this application do not refer to
any clarification. We have referred to the substance of the reliefs
prayed for in this application earlier in this judgment.
10. Order XII Rule 3 of the Supreme Court Rules, 2013 (“2013 Rules”)
framed in pursuance of Article 145 of the Constitution of India,
stipulates:-
“3. Subject to the provisions contained in Order XLVII of
these rules, a judgment pronounced by the Court or by
a majority of the Court or by a dissenting Judge in open
Court shall not afterwards be altered or added to, save for
the purpose of correcting a clerical or arithmetical mistake
or an error arising from any accidental slip or omission.”
There are, however, two chapters in the 2013 Rules which permit
review of a judgment or order of this Court, being Order XLVII and
XLVIII. The former Order, contained in Part IV of the 2013 Rules
relates to “Review of a Judgment” and the latter relates to “Curative
Petition”. There is no other provision in the 2013 Rules, whereby a
litigant can apply for modification of a judgment or an order of this
Court in a matter which stands finally concluded. On rare occasions,
a litigant may apply for clarification of an order if the same is ex-facie
incomprehensible, but we do not expect any judgment or order to
bear such a character. So far as the applicant is concerned, it did
not apply for review of the judgment delivered by the three-Judge
Bench. Neither in the contempt action initiated by the applicant, did
this Court find that any case of willful disobedience of the judgment
of the three-Judge Bench was made out on the question of LPS.
[2024] 3 S.C.R. 1037
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
This would be apparent from the orders passed by this Court in
the contempt petitions which have been reproduced earlier in this
judgement. The judgment of the three-Judge Bench has already
examined the question of LPS and by taking out a Miscellaneous
Application, the applicant cannot ask for reliefs which were not
granted in the main judgment itself.
11. In the case of Ghanashyam Mishra & Sons Private Limited -vsEdelweiss Asset Reconstruction Company Limited [M.A. No. 1166
of 2021 in CA No. 8129 of 2019], a two-Judge Bench of this Court
in its judgment delivered on 17th August 2022 observed and held:-
“4. Having heard learned senior counsel for the parties
and having perused the relevant materials placed on
record, we are of the considered view that the present
applications are nothing else but an attempt to seek review
of the judgment and order passed by this Court on 13th
April 2021 under the garb of miscellaneous application.
5. We find that there is a growing tendency of
indirectly seeking review of the orders of this Court
by filing applications either seeking modifications or
clarifications of the orders passed by this Court.
6. In our view, such applications are a total abuse of
process of law. The valuable time of Court is spent in
deciding such application which time would otherwise
be utilized for attending litigations of the litigants who
are waiting in the corridors of justice for decades
together.”
(emphasis supplied)
12. Subsequently in the judgment of this Court in the case of Supertech
Limited-vs- Emerald Court Owner Resident Welfare Association
& Others [(2023) 10 SCC 817], a two-Judge Bench of this Court
examined the maintainability of miscellaneous applications “for
clarification, modification or recall” and was pleased to observe the
following in the context of that case:-
“12. The attempt in the present miscellaneous application is
clearly to seek a substantive modification of the judgment
of this Court. Such an attempt is not permissible in a
miscellaneous application. While Mr Mukul Rohatgi, learned
1038 [2024] 3 S.C.R.
Digital Supreme Court Reports
Senior Counsel has relied upon the provisions of Order
LV Rule 6 of the Supreme Court Rules, 2013, what is
contemplated therein is a saving of the inherent powers of
the Court to make such orders as may be necessary for
the ends of justice or to prevent an abuse of the process
of the Court. Order LV Rule 6 cannot be inverted to bypass
the provisions for review in Order XLVII of the Supreme
Court Rules, 2013. The miscellaneous application is an
abuse of the process.”
The authorities which were cited in the said Judgment by the
Coordinate Bench are the cases of State (UT of Delhi) -vs- Gurdip
Singh Uban and Others [(2000) 7 SCC 296], Sone Lal and Others
-vs- State of Uttar Pradesh [(1982) 2 SCC 398], Ram Chandra
Singh -vs- Savitri Devi and Others [(2004 12 SCC 713], Common
Cause -vs- Union of India and Others [(2004) 5 SCC 222], Zahira
Habibullah Sheikh and Another -vs- State of Gujarat and Others
[(2004) 5 SCC 353], P.N. Eswara Iyer and Others -vs- Registrar,
Supreme Court of India [(1980) 4 SCC 680], Suthendraraja alias
Suthenthira Raja alias Santhan and Others -vs- State through
DSP/CBI, SIT, Chennai [(1999) 9 SCC 323], Ramdeo Chauhan
alias Raj Nath -vs- State of Assam [(2001) 5 SCC 714], Devendra
Pal Singh -vs- State (NCT of Delhi) and Another [(2003) 2 SCC
501] and Rashid Khan Pathan in re, [(2021) 12 SCC 64]. These
authorities broadly stipulate that multiple attempts to reopen a
judgment of this Court should not be permitted. Hence, we do not
consider it necessary to deal with these authorities individually.
13. Rule 6 of Order LV of the 2013 Rules stipulates: -
“6. Nothing in these rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to make
such orders as may be necessary for the ends of justice
or to prevent abuse of the process of the Court.”
The maintainability of the present application cannot be explained by
invoking the inherent power of this Court either. The applicant has
not applied for review of the main judgment. In the contempt action,
it failed to establish any willful disobedience of the main judgment
and order on account of non-payment of LPS. Now the applicant
cannot continue to hitchhike on the same judgment by relying on
the inherent power or jurisdiction of this Court.
[2024] 3 S.C.R. 1039
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
14. Appearing on behalf of the applicant, Dr. Singhvi, learned Senior
Counsel, relied on five orders of this Court in which post-disposal
applications were entertained. The first one was an order dated
29.10.2018 in the case of Energy Watchdog -vs- Central Electricity
Regulatory Commission and Others, [MA Nos.2705-2706 of 2018
in Civil Appeal Nos.5399-5400 of 2016]. In that case, an application
for impleadment on behalf of the State of Gujarat was allowed, upon
going through a High Power Committee’s report, which was given
after the judgment was delivered. The judgment disposing of the
Civil Appeal was delivered on 11.04.2017, but in the miscellaneous
application, the applicant was given liberty to approach the Central
Electricity Regulatory Commission for approval of the proposed
amendments to be made to a power purchase agreement. That
was a case where this Court, after the judgment was delivered,
considered certain events which accrued subsequently and had a
bearing on the main decision. The subsequent event was taken into
account for modifying the order but there was no substantive change
in the judgment itself.
15. The next order, on which Dr. Singhvi placed reliance, was passed
on 04.05.2023 in the case of Uttar Haryana Bijli Vitran Nigam Ltd.
& Anr. -vs- Adani Power (Mundra) Limited [MA (D) No. 18461 of
2023 in Civil Appeal No.2908 of 2022]. The substantive part of the
order is contained in Paragraph 2 thereof and this paragraph reads:-
“2. As agreed by the learned counsel for the parties, the
words “As per the details given in the PPA, the mode of
transportation is through railway” shown in paragraph 32
of the judgment dated 20.04.2023 passed in C.A. No. 2908
of 2022 be read as “As per the details given in the FSA,
the mode of transportation is through railway”.
But this order appears to be in the nature of correcting an error
which was clerical in nature and the Code of Civil Procedure, 1908
(“the Code”) itself provides for such correction under Section 152
thereof, as also Order XII Rule 3 of the 2013 Rules.
16. The third order relied on by Dr. Singhvi was passed on 09.12.2022 in
the case of Kalpataru Properties Pvt. Ltd. -vs- Indiabulls Housing
Finance Ltd. [MA No.2064 of 2022 in Civil Appeal No.7050 of 2022].
The applicant therein had approached this Court contending that he
was not heard when the civil appeal was decided. In that case, the
1040 [2024] 3 S.C.R.
Digital Supreme Court Reports
appellant had approached this Court against an Order passed by
NCLAT in Company Appeal (AT)(Insolvency) No. 880/2021 and the
said appellant sought to withdraw the appeal on deposit of certain
amount by the first respondent in the said appeal. The request was
accepted by this Court and by the Order passed on 26.09.2022, the
appeal pending before the NCLAT was also disposed of by this Court.
The applicant was an intervenor before the NCLAT and his submission
was that in the appeal before the NCLAT which was disposed of,
he also sought to raise some grievances before the NCLAT, in his
capacity as an intervenor. His case was that he should have been
given the liberty to be heard as an intervenor before the NCLAT. A
Coordinate Bench of this Court entertained that application and held: -
“We do believe that this controversy should be resolved
by the NCLAT itself i.e. whether on the appellants seeking
to withdraw the appeal, there can be any impediment in
withdrawal of the appeal and is the NCLAT really required
to comment on the merits of the order of the NCLT at the
behest of an intervener. We further make it clear that we
are not expanding the array of parties before the NCLAT
as a number of entities seems to have jumped into the
picture as the matter has gone on before the Court. We
make it clear that only the parties/existing interventionist
before the NCLAT will have the right of hearing.
In view of the orders passed in Civil Appeal No. 9062/2022,
this appeal will also to be listed before the Bench presided
over by the Chairman.
In view thereof, the final picture which would emerge would
be before the NCLAT and to that extent the order passed
by us on 14.11.2022 would be kept in abeyance till the
NCLAT resolves the issue.”
Again, this Order was in the nature of a review order by the applicant
who was a party to the proceeding before the NCLAT. All the appeals
before the NCLAT were disposed of without hearing him. The context
is entirely different from the one in which the applicant has presently
approached this Court.
17. The fourth order on which the present applicant relied was passed
on 12.08.2022 in the case of Supertech Limited -vs- Emerald
[2024] 3 S.C.R. 1041
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
Court Owner Resident Welfare Association & Ors. [MA No.1918
of 2021 in Civil Appeal No.5041 of 2021]. The Coordinate Bench
of this Court granted extension of time, as sought by the applicant
therein, in effecting demolition of two building towers which were
approved by the Court while disposing of the civil appeal. The power
to extend time beyond that fixed by a Court on a legitimate ground is
incorporated in Section 148 of the Code. If the time to do something
requires to be extended, it would be within the inherent jurisdiction of
this Court to go beyond the maximum period of 30 days prescribed
in the aforesaid Section, after sufficient reason is shown. Section
112 of the Code itself provides that nothing contained in the Code
shall affect the inherent powers of the Supreme Court under Article
136 or any other provision of the Constitution.
18. The fifth order referred to by the applicant was passed on 23.07.2021
in the case of Union of India -vs- Association of Unified Telecom
Service Providers of India and Ors. [MA No.83 of 2021 in MA
(D) No. 9887 of 2020 in Civil Appeal No.6328-6399 of 2015]. A
miscellaneous application had been filed for modification of the
content of judgment dated 1st September 2020 passed in M.A. (D)
No. 9887 of 2020 in Civil Appeal Nos. 6328-6399 of 2015. In the
said proceeding, clarification was also sought on the aspect that
the judgment did not bar the Union of India from considering and
rectifying the clerical/arithmetical errors in computation of certain
dues. This was again an Order, in substance, permitting rectification
of an arithmetic error, which is implicit in Section 152 of the Code
read with Order XII Rule 3 of the 2013 Rules.
19. We have indicated in the earlier part of this judgment that Dr. Singhvi
had expressed his desire to withdraw the present application on
the last date of hearing, i.e., 24.01.2024. Ordinarily, we would not
have had set out the background leading to the filing of the present
application and the course of the application that was taken before
this Court in view of such submission. Any plaintiff would be entitled
to abandon a suit or abandon part of the claim made in the suit at
any time after institution of the suit, as provided in Rule 1 of Order
XXIII of the Code. We, however, decided not to permit such simpliciter
withdrawal, as the Rajasthan Discoms sought imposition of costs.
Secondly, in our opinion, the provision which pertains to a suit would
not ipso facto apply to a miscellaneous application invoking inherent
powers of this Court, instituted in a set of statutory appeals which
1042 [2024] 3 S.C.R.
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stood disposed of. Even if an applicant applies for withdrawal of an
application, in exceptional cases, it would be within the jurisdiction
of the Court to examine the application and pass appropriate orders.
So far as the present proceeding is concerned, an important question
of law has arisen as regards jurisdiction of the Court to entertain an
application taken out in connection with a set of statutory appeals
which stood disposed of. Judgment of this Court in Supertech
Limited (supra) deals with this question and in our opinion, the ratio
of the said judgment would apply to the present proceeding as well.
20. We felt it necessary to examine the question about maintainability of
the present application as we are of the view that it was necessary
to spell out the position of law as to when such post-disposal
miscellaneous applications can be entertained after a matter is
disposed of. This Court has become functus officio and does not
retain jurisdiction to entertain an application after the appeal was
disposed of by the judgment of a three-Judge Bench of this Court
on 31.08.2020 through a course beyond that specified in the statute.
This is not an application for correcting any clerical or arithmetical
error. Neither it is an application for extension of time. A post disposal
application for modification and clarification of the order of disposal
shall lie only in rare cases, where the order passed by this Court
is executory in nature and the directions of the Court may become
impossible to be implemented because of subsequent events or
developments. The factual background of this Application does not
fit into that description.
21. Our attention was drawn to an order passed on 14.12.2022 in which
a Coordinate Bench was of the prima facie opinion that the applicant
may be entitled to LPS as per Article 8.3.5 of PPA-2010, at least
from 31.08.2020, till the actual payment was made pursuant to the
order passed by this Court in the contempt proceedings. This prima
facie view was expressed in the course of hearing of the present
application only. We have examined the issue in greater detail. As
we have already indicated, the applicant, after the three-Judge Bench
decision was delivered, did not file any petition for review. On the
other hand, it was the Rajasthan Discoms that had filed the review
petitions which stood dismissed. In the contempt action instituted by
the applicant, the question concerning payment of LPS was raised,
but the Bench of this Court found that the same was not the subject
in question in the contempt proceedings regarding which no direction
[2024] 3 S.C.R. 1043
Jaipur Vidyut Vitran Nigam Ltd. & Ors. v.
Adani Power Rajasthan Ltd. & Anr.
had been issued by this Court. Hence the Coordinate Bench decided
not to address that question in the contempt proceedings. In this
judgement, we have already quoted the observations regarding the
question of LPS made by the Contempt Court on 25.02.2022 and
19.04.2022. Despite that question being left open by the Contempt
Court, we are of the view that a miscellaneous application is not the
proper legal course to make demand on that count. A relief of this
nature cannot be asked for in a miscellaneous application which was
described in the course of hearing as an application for clarification.
22. So far as the observations made in the order passed in the present
proceedings on 14.12.2022 are concerned, they were made only at
a prima facie stage and do not have binding effect at the hearing
stage. Moreover, the question whether such a prayer could be made
in an application labeled as a “Miscellaneous Application” taken
out in connection with a set of appeals which have been finally
decided, does not appear to have been considered by this Court at
the time of making of the order dated 14.12.2022. The order of this
Court does not reflect any discussion on the issue of maintainability
of the present application. It also does not appear to us that the
maintainability issue was raised at that stage. Thus, mere making
of such observations cannot be construed to mean that this Court
found such application to be maintainable.
23. We, accordingly, dismiss the present application. This application was
listed before us on several occasions and for that reason we impose
costs of Rs. 50,000/- to be paid by the applicant to be remitted to
the Supreme Court Legal Aid Committee.
Headnotes prepared by: Result of the case:
Raghav Bhatia, Hony. Associate Editor Application dismissed
(Verified by: Abhinav Mukerji, Sr. Adv.)
