M/s New Bharat Engineering Works vs Andaman And Nicobar Administration & Others

Subrata Talukdar, J

Mr.Kabir submits that the petitioner is a supplier of electricity to the Andaman and Nicobar Administration Power Department. Such supply commenced in 2011 on the basis of an Agreement entered between the two parties. The Agreement was for three years. A clause of the Agreement was for payment of electricity charges in favour of the petitioner/the Company on a consolidated basis.

The petitioner/the Company was called upon by the Andaman and Nicobar Power Department/the respondents to restart the supply in 2015. The restart of the supply in 2015 was extended till the 27th of September, 2017 on the basis of a fresh Agreement between the parties. The clause of payment in the fresh second and third Agreement for the period 2015 to the 27th of September, 2017 was for payment on unit basis and not on consolidated basis.

Finally, pursuant to the open tender of the respondents, the petitioner/the Company entered into the current Agreement, which is the fourth in the series and, dated the 27th of September, 2017. The rate of payment on unit basis of the second Agreement was retained in the present fourth Agreement.

Mr.Kabir submits that the petitioner was rudely surprised and shocked to receive the impugned Recovery Notice dated the 17th of January, 2019 from the respondents/Power Department. The Notice, inter alia, alleged that excess payments have been made to the petitioner/the Company arising out of the first Agreement dated the 13th December, 2011. Although the penultimate paragraph of the Recovery Notice at its internal page 1 (page 92 of the writ petition) is as omnibus as it could be by failing to specify what would be the rate and what should be the penalty, light is attempted to be thrown on the rate and penalty from the concluding chart of the Recovery Notice.

In addition to the Recovery Notice dated the 17th of January, 2019, there is a threat by the further communication dated the 10th of May, 2019 of the respondent/the Power Department requiring the petitioner/the Company to deposit the amount charged in the Recovery Notice, failing which the recovery will take place from the current bills of the petitioner/the Company.

Mr.Kabir summarises his arguments as follows:

(a) That the first Agreement of 2011 was completely acted upon and accepted by the parties;

(b) That no disputes were ever raised by any of the parties, including the respondents/the Power Department, connected to the first Agreement of 2011;

(c) That the power of exercise of general lien the Recovery Notice dated the 17th of January, 2019 connected to the first Agreement of 2011 after so many years of its completion and consequent discharge of reciprocal obligations is both factually and legally untenable;

(d) That it would be evident from the subsequent Agreements following the first Agreement of 2011 that each of the Agreements are denovo in their nature, character and structure. There is no dispute between the parties that the present rate is being levied on a unit basis unlike the consolidated basis of the first Agreement;

(e) That on the basis of a Recovery Notice purportedly at the behest of Auditors, the respondent/the Power Department cannot achieve an objective collaterally qua the first Agreement without having ever raised any dispute connected to the first Agreement.

(f) That in the event Recovery Notice and the further communication dated the 10th of May, 2019 are acted upon, the petitioner shall suffer severe financial loss and prejudice in its operational capabilities.

Mr.Khan, learned counsel, appears for the respondents/the Power Department.

Mr.Khan seeks an opportunity to take complete instructions and revert to this Court on the next date.

Accordingly, let this matter return for consideration under the heading 'Motion' on the 14th of August, 2019.

Before parting with this discussion this Court must at this stage record its prima facie satisfaction at the submission advanced by the petitioner.

Since affidavit-of-service has been filed to show a prior service of notice upon the respondents/the Power Department, this Court, in the backdrop of the discussion as made above, grants an interim order in terms of prayer (f) of the writ petition till the 16th of August, 2019 or, until further orders, whichever is earlier.

Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to both parties upon usual undertakings.