2024 INSC 213 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

MISCELLANEOUS APPLICATION DIARY NO. 21994 OF 2022

IN

CIVIL APPEAL NOS. 8625-8626 OF 2019

JAIPUR VIDYUT VITRAN

NIGAM LTD. & ORS. …APPELLANT(S)

VERSUS

ADANI POWER RAJASTHAN

LTD. & ANR. ...RESPONDENT (S)/APPLICANT(S)

J U D G M E N T

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 4

th appellant in the

main set of appeals. It appears to have been formed by the

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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

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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

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

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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

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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 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 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

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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 appell ants-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.

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.”

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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

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

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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

three-Judge 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 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

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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:-

“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

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surcharge open, which the petitioner, if so advised, can

claim before the appropriate forum.

As regards the second question of the alleged non -

compliance, 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 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.

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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

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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. 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

-vs- Edelweiss 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 17

th 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.

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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

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

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-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

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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.

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 Commissi on 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

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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

17

was decided. In that case, the 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

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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 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

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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 1

st 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

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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 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

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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

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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 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

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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.

…………………………J.

(ANIRUDDHA BOSE)

.………………………..J.

(SANJAY KUMAR)

NEW DELHI

March 18, 2024