Case: Rithwik Energy Generation Pvt. Ltd Vs. Bangalore Electricity Supply Co. Ltd. &amp; Others

the Court considers the adjudication of the said issue material and essential for its decision. 15. As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down. 16. We now come to the other main plank of Mr. Mehtas submission. Mr. Mehta read to us Clause 9.3.2 of the PPA and contended that the letter dated 05.05.2011 substantially complied with the requirements of the said clause and should be treated to be a notice of default under the said clause. To appreciate this plea, Clause 9.3.2 of the PPA needs to be set out: "9.3.2 Termination for corporations Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to theult which requires the co-operative of both BESCOM and the Company to remedy, BESCOM shall render all reasonable cooperation to enable the Event of Default to be remedied." A reading of this clause would show that upon occurrence of an event of default, a default notice may be served to the Corporation in writing. The requirements of the aforesaid notice are two fold - (1) to specify in reasonable detail the event of default giving rise to the notice, and (2) calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise. It is only then that the Company may deliver a termination notice to the Corporation. 17. On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are important - one specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. Having heard the learned counsel appearing for the parties, we are of the view that there is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal. This being the case, it is clear that, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event is indeed important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, we are of the view that the appellant is clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata.As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are importantone specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.