M/s. V.S. Lignite Power Private Ltd. vs Reliance Chemotex Industries Ltd.

Hon''ble Ms. Justice Bela M. Trivedi

The present appeal has been filed u/s 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ''the said Act'') by the appellant-original non-applicant against the order dated 24.8.12 passed by the Addl. District & Sessions Judge No. 9, Jaipur Metropolitan, Jaipur (hereinafter referred to as ''the court below'') in Civil Misc. Application No. 859/12. It appears that the present respondent-original applicant has filed an application being civil Misc. Application No. 859/05 before the court below seeking interim measure u/s 9 of the said Act, in which the respondent has prayed for the following reliefs :-

In the said application the present appellant-non-applicant had filed the application raising various issues including the issue of jurisdiction of the court below. It further appears that in the said application filed by the respondent-applicant u/s 9 of the said Act, on 24.8.12, the respondent filed an undertaking before the court below that the additional 2MW power may be supplied to the user member Maharaja Shri ummed Mills Ltd., under "Take or Pay Obligation" and that the respondent would pay the bill amount. On such undertaking having been furnished by the respondent, the court below passed an ad-interim order on 24.8.12 as under :-

Being aggrieved by the said order, the appellant-non-applicant has filed the present appeal.

It has been sought to be submitted by the learned counsel Ms. Hema Joshi for the appellant that the impugned order and the direction contained therein are not permissible under the Electricity Act, 2003 and also the Rules framed thereunder and the Regulations framed by the Rajasthan Electricity Regulatory Commission governing the supply of power Drawing the attention of the court to the relevant provisions of the Notification dated 26.5.04, she submitted that without following the procedure laid down therein, the supply of electricity could not be diverted to the other user. She has also submitted that the order passed by the court below is beyond the scope of Section 9 of the said Act and when the application u/s 9 itself is pending for the decision, no such ad-interim order could be passed by the court below.

On the other hand, the learned counsel Mr. P.N. Bhandari for the respondent submitted that because of the peculiar situation having arisen in the unit of the respondent and with a view to see that there is no national loss of electricity, the court below has passed the order which should not be interfered with. According to him the other user member Maharaja Shri Ummed Mills Ltd. having consented to receive the 2MW power, there being a request made by the respondent to divert the said supply of 2MW power to the said mill, the court below has passed the order in order to find out an equitable solution. Relying upon the provisions contained in Section 9 and the decision of the Apex Court in case of Bhatia International Vs. Bulk Trading S.A. and Another, Mr. Bhandari submitted that the court below had the jurisdiction to grant such interim measure as deemed just and proper by it.

Having regard to the submissions made by the learned counsels for the parties and to the documents on record, it appears that some disputes with regard to the agreement entered into between the appellant and the respondent have arisen which are sought to be referred to the Arbitrator by the respondent. Before the initiation of arbitration proceedings, the respondent has sought for the interim protection u/s 9 of the said Act by filing the application before the court below, wherein the reliefs of permanent injunction and mandatory injunctions have been asked for against the appellant-non-applicant. It is a matter to be decided by the court below whether such reliefs could be granted by way of interim measures u/s 9 of the said Act, however it appears that instead of deciding the said application, the court below passed the impugned ad-interim order on the basis of the undertaking given by the respondent. In this regard, the learned counsel for the appellant has rightly drawn the attention of the court to the specific provisions contained in the Regulations framed under the Electricity Act, 2003, as regards the procedure to be followed by the parties for entering into the open access agreement. Admittedly no such procedure has been followed by the respondent. It cannot be gainsaid that the civil courts have to decide the cases strictly in accordance with law in the light of the pleadings of the parties and the material on record, and cannot pass the orders under the guise of exercise of inherent powers, ignoring the specific provisions of the relevant Act and Rules. The parties to the proceedings also should not be allowed to circumvent the statutory provisions, under the umbrella of the court''s orders. In the instant case, the impugned order directing the appellant to supply the 2MW electricity to Shri Maharaja Ummed Mills Ltd. instead of the respondent is in clear contravention of the Regulations framed under the Electricity Act and therefore not legally sustainable.

Even otherwise, as rightly submitted by the learned counsel for the appellant, the ad-interim order passed by the court below is beyond the scope of Section 9 of the said Act and also beyond the final reliefs claimed in the said application. The impugned order being ex-facie illegal, the same deserves to be set aside. In that view of the matter, the impugned order dated 24.8.12 is set aside. The appeal stands allowed accordingly.