New Delhi, March 18:The Supreme Court on Monday dismissed a plea of Adani Power Rajasthan Ltd seeking over Rs 1,300 crore as late payment surcharge from the Jaipur Vidyut Vitran Nigam Limited, a Rajasthan government-owned power distribution firm. Imposing Rs 50,000 as cost on Adani Power Rajasthan Ltd (APRL), a bench comprising Justices Aniruddha Bose and Sanjay Kumar ruled that filing of a miscellaneous application was not the proper legal recourse to late payment surcharge (LPS) by the Adani firm.

"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," Justice Bose said. "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," the bench said. Gautam Adani, Qualcomm CEO Cristiano Amon Discuss About India’s Potential Around Semiconductors, AI and Mobility

"Now the applicant cannot continue to hitchhike on the same judgment by relying on the inherent power or jurisdiction of this court," it added. Writing the 23-page judgement for the bench, Justice Bose said, "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." The top court had on January 24 reserved its judgement.

The Jaipur Vidyut Vitran Nigam Limited (JVVNL), represented by senior advocate Dushyant Dave, had vehemently opposed the plea of Adani Power seeking over Rs 1,300 crore as LPS from the state discom. The court, which had not permitted the Adani firm to withdraw its plea on January 24, gave reasons for that in its detailed judgment. The APRL, through its miscellaneous application in a decided case, had sought a direction to the state firm to make a payment of Rs 1,376.35 crore towards LPS.

The claim was raised by the Adani firm citing a term of the Power Purchase Agreement (PPA) entered by it with the state discom on January 28, 2010. Under the agreement, the APRL was to supply electricity to the Rajasthan discoms and to generate the electricity, the Adani firm had to procure coal from Indonesia. The 2010 PPA had postulated domestic coal as the primary source of energy, while imported coal was to be used as a backup option. Gautam Adani Enthused by US Chipmaker Qualcomm CEO's India Plans

The APRL's complaint was that due to the non-availability of sufficient domestic coal, it could not be allocated a domestic coal linkage by the Centre and that it was compelled to rely on imported coal from Indonesia that came at a higher cost. As per the Adani firm, it was one of the main reasons for seeking LPS. However, this matter was decided by the apex court and the firm filed an interim application on this issue in the case. The bench did not permit the withdrawal as it was also opposed by the Rajasthan government discom.

"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," it said.

The judgment said 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 August 31, 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," it said. The Adani firm's plea before the bench was in the news after the apex court had pulled up its registry for not listing the case for unspecified reasons despite a judicial order to post it.

The Adani firm was seeking modification of a three-judge bench verdict delivered on August 30, 2020, on the plea of JVVNL through a miscellaneous application which is filed in pending cases. The top court, in its 2020 verdict, had upheld the orders of the Rajasthan Electricity Regulatory Commission and the Appellate Tribunal for Electricity, observing that the Adani firm was entitled to a compensatory tariff but not to the LPS as claimed.

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