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Rajasthan Electricity Regulatory Commission
I.A. No.1 of 2015
in
Petition No. RERC/466/14
In the matter of Interim Application filed by M/s. Maru Transmission Service
Company Ltd. for change in law.
Coram:
Shri Vishvanath Hiremath, Chairman
Shri Vinod Pandya,
Member
Shri Raghuvendra Singh, Member
Petitioner
:
Respondent
:
M/s. Maru Transmission Service Company Ltd.
1. Jaipur Vidyut Vitran Nigam Ltd., Jaipur (JVVNL)
2. Ajmer Vidyut Vitran Nigam Ltd., Ajmer (AVVNL)
3. Jodhpur Vidyut Vitran Nigam Ltd., Jodhpur (JdVVNL)
Date of hearing :
Present
27.4.2015
:
1. Sh. Sitesh Mukherjee, Advocate for Petitioner.
2. Sh. Bipin Gupta, Advocate for Respondents.
Order Date:
01.05.2015
ORDER
1. Petitioner has filed the present petition No.466/2014 praying for :
a. Declare that the Petitioner has incurred additional expenditure of
Rs.25.90 Crores in the development of the Project on account of change
in Law events in terms of Article 12 of the TSA.
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b. Revise the Transmission Charges for rest of the Terms of the TSA after
taking in to account additional expenditure of Rs.25.90 Crores in the
development of the project.
c. Direct payment of revised Transmission Charges as per Annexure 21 to
cover Project costs overrun of Rs.25.90 Crores; and
d. Pass any other order as this Hon’ble Commission may deem fit and
proper in the facts and circumstances of the case and in the interest of
justice and fair play.
2. Thereafter petitioner has filed an Interim Application for amending the
above petition praying for the following :
a. Allow the present application and allow the Petitioner to amend Petition
No.466 of 2014, in terms of the Schedule of Amendment at Annexure A-1
hereto;
b. Take on record the Amended Petition at Annexure A-2, copy of the
Addendum notice dated 15.12.2014 and the Request for proposal issued
in the course of the bid process at Annexure-3 (Colly.) and the Amended
Table at Annexure A-4; and
c. Pass any other order and/or directions as this Hon’ble Commission may
deem fit and proper in the facts and circumstances of this case.
3. The Respondents on notice have appeared and filed reply to the
application made for seeking the amendment of the petition raising the
preliminary ground on the maintainability. Petitioner has filed its rejoinder on
the reply.
4. We have heard the Petitioner’s Counsel Shri Sitesh Mukherjee and Shri Bipin
Gupta, Counsel appearing for the Respondents. We have also considered
the statements and the grounds made in the application and the rejoinder
filed by the Petitioner and reply of the Respondents.
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5. During the hearing it is submitted by the Petitioner’s Counsel that the
amendment sought to the main petition is necessary as the claim based on
change in law has increased by Rs.17,56,40,000/- on the original claim of
Rs.25.90 crores, thereby making the total claim of Rs.43,46,40,000/-. It is
submitted by the Petitioner’s Counsel that the amendment and the
additional relief claimed through the petition has arisen out of the same
cause of action based on which the claim in the original petition has been
made in terms of Transmission Supply Agreement (TSA) signed between the
parties.
6. Per contra, it is submitted by the Respondent’s Counsel that the I.A. filed for
amending the relief is liable to be rejected as the same is hit by Order-II Rule
2 of CPC. According to him the Petitioner had filed the original petition in
July, 2014 on the basis of demand letter dated 26.6.2014 and now based on
subsequent letter issued by it on 15.12.2014 has sought to increase relief. This
is impermissible in law. The petitioner should have included all the claims in
the original petition and having not done so, it cannot claim now in the garb
of amendment to the petition.
7. As entire arguments on behalf of parties is based on Order-II Rule 2 and
Order-VI Rule 17. It is necessary to notice the said provisions before we
proceed to decide the maintainability of I.A. Therefore, they are extracted
below:
“Order-II
Frame of Suits
R.I. Frame of suit.-Every suit shall as far as practicable be framed so as
to afford ground for final decision upon the subject in dispute and to
prevent further litigation concerning them.
Rule 1 read with rule 2 - From r 1 read with r 2 below, the intention of the
legislature appears to be that, as far as possible, all matters in dispute
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between the parties relating to the same transaction should be
disposed of in the same suit. 1 A bare perusal of 0 2, r 1 makes it clear
that they are mandatory in nature. The term 'shall' and not 'may'
occasion in all the rules. Thus, under 0 2, r 1, the plaintiffs are duty
bound to claim the entire relief. The suit has to be so framed as to
afford ground for final decision upon the subjects and disputes and to
prevent further litigation concerning them.2
Order 23, r 1 of the Code of Civil Procedure 1908 requires a party to
obtain permission of the court if it wants to institute a fresh suit in respect
of the same subject-matter. The procedure given in 0 23, r 1 excludes
by implication the procedure where parties on their own whims and
wish file fresh suit and by-pass the procedure. Therefore, filing of fresh
suit and then withdrawing the earlier one afterwards not proper. Thus,
such suits so instituted are not tenable.3
The objection as to maintainability of suit due to defect in framing
should be taken in trial court itself and if it was not taken, the defendant
must be deemed to have waived objection and cannot raise it in
appeal. Thus, it was held that where a co-operative society filed the suit
itself and not in representative capacity to challenge the validity of
settlement deed executed by a member of the society such defect in
framing of suit should not stand in the way of granting a decree in
favour of the society, if it is otherwise entitled to it. 4
R. 2. Suit to include the whole claim.-( 1) Every suit shall include the
whole of the claim which the plaintiff is entitled to make in respect of
the cause of action; but a plaintiff may relinquish any portion of his
claim in order to bring the suit within the jurisdiction of any court.
(2) Relinquishment of part of claim-Where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim, he shall
not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more
than one relief in respect of the same cause of action may sue for all or
any of such reliefs; but if he omits, except with the leave of the court to
sue for all such reliefs, he shall not afterwards sue for any relief so
omitted.
Explanation. -For the purposes of this rule an obligation and a collateral
security for its performance and successive claims arising under the
same obligation shall be deemed respectively to constitute but one
cause of action.
Order-VI Rule 17 : Amendment of Pleadings :
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1[17. Amendment of pleadings.- The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the matter
before the commencement of trial.]”
8. We have considered the application and submissions of the Petitioner and
the reply and the arguments of the Respondents in the light of the above
provisions.
9. From the pleadings it is made out that the claim now sought to be made by
the Petitioner for an additional amount of Rs.17,56,40,000/- is based on the
same ground of change in law. In other words cause of action of the main
petition and amended petition is the alleged ground of change in law.
10. Under Order VI Rule 17 the Court is empowered at any stage of the
proceedings to allow either party to alter or amend his pleadings in such a
manner and on such terms as may be just and all such amendments shall be
made as may be necessary for the purpose of determining the real
questions in controversy between the parties. Further Order VI Rule 17 bars
application for amendment after the trial has commenced unless the Court
comes to the conclusion that in spite of due diligence the party could not
have raised matter before the commencement of trial.
11. In the present case even though the Petitioner has filed the petition and the
Respondents have filed reply to the same, no further proceedings have
taken place. That means trial of the petition has not yet started. Further the
claim now made is based on the same cause of action and has to be
decided together to avoid multiplicity of petitions on the same cause of
action. This is also the legislative intent behind Order VI Rule 17.
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12. The bar placed under Order-II Rule 2 in our view does not come into play in
the present case. What is prohibited under Order II Rule 2 is claiming of relief
which was not claimed in the earlier suit when it could have been claimed.
The legislative intent again behind Order II Rule 2 is to avoid repetition of
petition on the same cause of action. In the present case the claim now
made is not after the petition is decided but before the same.
13. Shri Bipin Gupta relying upon Regulation 75 of RERC (Transaction of Business)
Regulations, 2005 contended that the amendment application cannot be
allowed. We have looked into the above Regulation and are of the view
that the same is not applicable to the present application.
14. Cases supplied by the Petitioner also support the views expressed above.
15. In the light of the above discussion, we hold that petitioner may seek
amendment to the original petition. Accordingly I.A. No.1 is allowed.
Petitioner is permitted to file an amended petition and file the same before
this Commission after serving a copy of the same on the Respondents within
(2) weeks from to-day. The Respondents thereafter are at liberty to file any
additional reply if they desire to do so, on merits of the claims made in the
original petition as well as in the amended petition within (2) weeks.
16. Post the petition for further hearing on merits after (6) weeks from the date of
this order.
(Raghuvendra Singh)
Member (T)
(Vinod Pandya)
Member (F)
(Vishvanath Hiremath)
Chairman
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