M/S Shanti Conductors(P) Ltd. vs Assam State Electricity Board &Amp; ...

2. The appellant is a Private Limited Company which has been registered as a Small Scale Industrial Unit for manufacturing electrical conductors and/or wires at Kokrajhar, Assam. On 31.03.1992, the respondent­Assam State Electricity Board placed an order for supply of Aluminium Electrical Conductors from the appellants­M/s Shanti Conductors Pvt. Ltd. for a total consideration of Rs. 1.22 crores. The supplies were to be made between June and December, 1992. On 13.05.1992, another order was placed by the Electricity Board to M/s Shanti Conductors for the supply of various types of conductors for a total consideration of Rs. 32.49 lacs. The supplies of the aforesaid goods were to be made between January and February, 1993. On 23.09.1992, the President of India promulgated an ordinance, namely, the Interest on Delayed Payment to Small Scale Ancillary Industrial Undertakings Ordinance, 1992. Subsequently, on 02.04.1993, the Interest on Delayed Payment to Small Scale and Ancillary Industrial 4 Undertakings Act, 1993 (in short the “Act”) was enacted and it was deemed to have come into force with effect from 23.09.1992. Meanwhile, the supply of equipments under the aforesaid purchase orders was completed by M/s Shanti Conductors on 04.10.1993. On 05.03.1994, the entire payment of Rs. 2.15 crores against the aforesaid supply orders was received by M/s Shanti Conductors.

3. On 10.01.1997, M/s. Shanti Conductors filed a suit for recovery of Rs.53.68 lakhs claiming interest on delayed payments. The Assam Electricity Board (hereinafter referred to as the “Board”) filed its written statement raising the plea of limitation and contending that the Act is not applicable to the case of the appellant as the contract was concluded prior to enactment of Act, 1993. The trial court decreed the suit on 02.02.2000 for recovery of the amount of Rs.51,60,507.42 with compound interest at the rate of 23.75% p.a. The Board filed the Regular First Appeal No.66 of 2000 before the High Court of Gauhati. The Division Bench of the High court while hearing the RFA being of the view that certain important issues arise 5 for consideration, referred the matter to the Full Bench. The Full Bench framed following questions of law:

C.A.No.8445 of 2016 (M/s. Trusses and Towers (P) Ltd. V Assam State Electricity Board and Anr.)

6. The appellant filed Review Application No.75 of 2001. The High Court vide its order dated 19.03.2013 partly allowed the review petition to the extent that the appellant was held to be entitled to interest at the rate of 9% per annum for the period of delayed payment.

7. The above appeal has been filed by the Board against the order in Review Petition No.75 of 2001 filed by M/s. Trusses & Towers (P) Ltd. by which order the High Court has partly allowed the review petition to the extent that the appellant was held to be entitled to interest at the rate of 9% p.a. as noted above. The Board aggrieved by the grant of interest of 9% p.a. has come up in this appeal.

The respondents shall refund the amount to the appellants with 9% interest per annum within six weeks from the date of receipt of the copy of this Order.”

85. Now, we come to Civil Appeal No. 8450 of 2016. The appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest. The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p. as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993. Appeal was filed by the respondent in the High Court being RFA No. 78 of 2003, which has been 72 allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest. The High Court following the judgment of this Court in Purbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable. The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act. There being nothing on record to come to the conclusion that any supply was made after the enforcement of the Act so as to enable the appellant to claim interest under Section 3 read with Section 4 of the 1993 Act, we are of the view that judgment of the High Court does not 73 need any interference in this appeal.

21. Replying the submission of Shri Patil, Shri Hansaria submits that when the SLP by this Court was dismissed on 06.08.2001 against the judgment of the High Court dated 05.04.2001 allowing the appeal of the Board, this Court having not granted further liberty it 22 is not open for the appellant to file the appeal against the impugned judgment deciding review petition.

24. Shri Patil in rejoinder submits that the order passed in the review petition being an order partly allowing the review petition the appeal filed by the appellant is on separate cause of action and the earlier order passed by this Court on 06.08.2001 shall not come in the way of deciding the appeal on merits.

(4) Whether judgment of this Court in Purbanchal Cables dated 31.08.2016 by which appeal of M/s. Shanti Conductors was also dismissed is binding between the parties i.e. M/s. Shanti Conductors and Assam Electricity Board and the appellant cannot be allowed to question the said judgment in these appeals ?

19. Now coming to the facts of the present case we find that there is no dispute with regard to the fact that the supply order was placed with the respondents on 16.07.1992 for supply of the pipes which date is admittedly prior to the date on which this Act came into effect. ”

Issue No.2

113. Any suit for Three When the which no period years right to of limitation is sue provided accrues elsewhere in this Schedule”

72. We have already held that Act shall apply with regard to supplies made after the date of enforcement of Act i.e. 23.03.1992. Last supply being received on 04.10.1993 at least from 04.11.1993, if not earlier, the amount of interest under Section 4 shall become due.

Issue No.4

77. While deciding Issue No.3 we having held that Money Suit filed by the appellant was barred by time, it is not necessary to express any opinion on the above issue.

Issue No. 5

82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest 69 of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC

19. We thus are of the view that present appeal challenging the review judgment cannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainable. Issue No.7 Whether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff?

83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. In Assam Small Scale Industry 70 Development Corporation and others versus G.D. pharmaceuticals and others (Supra), this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act. Paragraph 40 is to the following effect: ­ “40.We, therefore, are of the opinion that in relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum, which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of Section 34 of the Code of Civil Procedure.

Interest, however, will be payable in terms of the provisions of the 1993 Act(compound interest at the rate of 23.5 % per annum) in relation to the transactions made after coming into force of the Act, both in respect of interest payable up to the date of institution of the suit and pendente lite and till realization. The judgment and decree to that extent requires to be modified. It is directed accordingly.” 71

84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiff. Civil Appeal No. 8450 of 2016

86. Intervention applications are not entertained.

87. In result, all the appeals are dismissed.