Uttarakhand Power Corporation Ltd. vs Jai Prakash Industries Ltd. and Others

Servesh Kumar Gupta, J.

This order will deal with both the A.O. Nos. 436 of 2014 and 437 of 2014 as well because the controversy is between the same parties on identical issue with the only difference that such controversy in A.O. No. 437 of 2014 talks about the application of rate schedule for electric consumption as regards the power consumed by the respondent in constructing the Hydro Power Project while that of A.O. No. 436 of 2014 talks about the consumption of electric power by the respondent for construction of domestic units of the labour, ministerial and other staff including the engineers and officers working for the Project.

The award was rendered by the sole Arbitrator on 31.8.2012 which answers the controversy duo and the same has been challenged by the appellant, inter alia, on the ground that the Arbitrator has failed to have a least look on the Agreements dated 1.10.1999 and 3.10.1997 entered into between the parties with regard to the power consumption for either of these works respectively.

It was argued on behalf of the appellant that these agreements were the basis of transferring the project from the hands of the government to the respondent in order to complete the rest of foundation work, generate, operate and distribute/sale of energy, so produced. A clause in these agreements also depict the applicability of rate schedule for either of these works. The bone of contention between the parties is that as per the applicant''s contention, the rate schedule applicable for construction of Hydro Power Project was LMV-2 and LMV-9 as per Notification dated 25.1.1999 as mentioned in original agreement dated 1.10.1999. And the agreement dated 3.10.1997 which was for the supply of electricity for dwelling units envisaged that the rates will be applicable as per rate schedule applicable time to time. The photocopies of these agreements have been filed in either of the files as Annexure No. 2.

In A.O. No. 436 of 2014, Clause 8(b) of the Agreement reads as under:--

"8(b). The rate schedule applicable to the Consumer at the time of execution of this agreement is ''annexed'' hereto as Annexure-1. "LMV-2 and LMV-9 as per Notification No. 92 dated 25.1.1999 (handwritten)".

In A.O No. 437/14, Clause 8(b) of the agreement reads as under:--

"8(b). The rate schedule applicable to the Consumer at the time of execution of this agreement hereto as Annexure-1. "As per rate schedule applicable time to time (handwritten)".

But this term/clause, as indicated within inverted commas is only in the typed version, and this typed version is when tallied with the Photostat copy of the original document, having appended the signature of Executive Engineer of the appellant, then the Court found that not only Annexure No. 1 is missing but the sentence indicated within inverted commas has been implanted into the agreement by hand-script in a very casual manner. This agreement runs in as many as -17- pages without such annexure. It cannot be gainsaid that the said annexure is not the integral part and parcel of this agreement and, more so, when it explicates the rate schedule applicable to the respondent.

Yet another anomaly which could not escape the notice of this Court in A.O. No. 437/2014 is that there is a difference of the words/phrases in the relevant clause i.e. 8(b) between the original photocopy and typed copy submitted by the appellant which is that the phrase "of UPCL Ltd." is an extra addition in typed version is not found in the original photocopy. Let the Learned Counsel will clarify this extra addition by way of filing supplementary affidavit within three weeks.

Similarly, in A.O. No. 437 of 2014, the agreement dated 3.10.1997 runs in -21- pages without such annexure and Clause 8(b) is identical in this agreement too, as indicated above. But this agreement too has been presented in the Court without any such annexure.

It is appalling indeed as to where and how the Annexure No. 1 has been vanished away in both the agreements which were executed with a gap of two years.

It was argued on behalf of the respondent that in the agreement dated 01.10.1999, it has been written in handscript to the effect ''LMV-2 and LMV-9 as per Notification No. 92 dated 25.1.1999'' but the same is without the signature of any person whereas the remaining agreement is in typed form. Likewise, in between Clauses 8(b) and (c) of the Agreement dated 3.10.1997, a handscript has been inserted to the effect that ''as per rate schedule applicable time to time''. So, here it perturbs this Court as to where is the Annexure No. 1, which may have elucidated upon the controversy in hand.

It was only these annexures which could have rebutted the veracity of handwritten script, inserted by any official of the appellant between the clauses 8(b) and (c), which is being agitated by the respondents. So, the burden is upon the respondents to produce that annexure rather than on the appellant.

Looking to the factum that almost 15-18 years have passed when these agreements were entered into between the parties and even thereafter, a new State has been carved out and furthermore, that these agreements were entered into when the State of Uttar Pradesh was not re-organized, so, it is very difficult for the appellant to produce the original or certified copy of complete agreement including the said annexure. It is more so for the reason that dedication to work with all sincerity and integrity in the government functionary is almost difficult to anticipate. But the situation is almost reverse in the private sector, where every employee is impelled to work with all dedication, sincerity, loyalty and to maintain the record of each and every paper very scrupulously. So, this was the burden on the respondent (M/s. Jai Prakash Group) to produce such document in entirety before the Court, more so, for the reason that when these agreements were entered into between the parties, it was not possible that the original or at least copy of such important document was not received by the respondents, which was the basis of transfer of these projects to the respondents and such document was not preserved by them in its entirety. This project was transferred disclosing several terms and conditions to the respondent. So, it was a natural course for the respondents to keep preserved the original or at least the copy of such agreement in this regard. This Court is unable to assume that such record may not be available with the respondent.

In this eventuality, the Court grants an opportunity to the respondents for producing the original/certified/photocopy of the complete agreement, within three weeks, making the same as part of the affidavit in the Court, in order to adjudicate these appeals effectively. Let these appeals be put up before the Court soon after filing of such agreement, in full, including the annexure, as indicated above, or after the lapse of three weeks, whichever is earlier, for orders.

The appellant is also directed to make compliance, as adverted in Paragraph No. 7 of this order within three weeks.