Calcutta High Court
Somal Pipes Pvt. Ltd vs Coal India Limited And Ors on 12 March, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
OD-1
WPO/293/2019
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SOMAL PIPES PVT. LTD.
-Versus-
COAL INDIA LIMITED AND ORS.
BEFORE
The Hon'ble Justice RAJASEKHAR MANTHA
The Hon'ble Justice AJAY KUMAR GUPTA
Date: 12th March, 2025
APPEARANCE:
Mr. Siddhartha Mitra, Sr. Adv.
Mr. M. Hossain, Adv.
Ms. Reshmi Hossain, Adv.
Mr. Diptomoy Talukder, Adv.
Ms. Mohua Biswas, Adv.
....for petitioner.
Mr. Debnath Ghosh, Sr. Adv.
Mr. BiswaroopMukherjee, Adv.
Mr. Nilankan Banerjee, Adv.
....for respondents.
1. The instant writ petition has been assigned by the Hon’ble The Chief Justice
to this Bench. The order of assignment came to be made upon a decision, of
the Single Bench dated 20th November, 2024, that it needed clarification
from a larger Bench, of an earlier order passed by another Division Bench of
this Court dated 21st January, 2016 in APOT/1/2016. The writ petition
itself, therefore, came to be placed before this Bench.
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2. The brief facts relevant to the instant case are that sometime in the year
2005, the Coal India Limited (CIL) and its subsidiaries, in deviation of the
existing practice of supplying coal to linked consumers at a notified price,
sought to adopt a process of e-auction to determine its price. Linked
consumers across the country filed writ petitions in several High Courts.
Interim orders were passed in some writ petitions and declined in the others.
3. The matter reached the Hon’ble Supreme Court which, by an order dated
19th October, 2005 in inter-alia SLP No. 20471 of 2005 filed by the linked
consumers, passed an interim order to the effect that until final disposal of
the writ petitions challenging the propriety of the e-auction process, the
linked consumers would be entitled to lift coal upon payment of 33.1/3% of
the price over and above the notified price and secure the balance 66 odd %,
with an indemnity bond.
4. The writ petitioner herein is also a linked consumer who filed a writ petition
(WP 2068 of 2005) seeking to lift coal on the same terms as the interim order
dated 19th October, 2005 (Supra). The following reliefs were prayed for:-
a) A declaratory order, if necessary directing the writ petitioner
unit be permitted to lift coal as per entitlement by furnishing
Indemnity Bond and other undertakings as per solemn orders of
Hon’ble Supreme Court dated 19.10.05 and extensions thereof.
b) A writ in the nature of Mandamus do issue directing the
respondents to supply coal as per entitlement by furnishing
Indemnity Bond and other undertakings as per solemn orders of
Hon’ble Supreme Court dated 19.10.05 and extensions thereof.
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c) A writ in the nature of Certiorari do issue calling upon each
of the respondents including respondent companies to transmit
all records pertaining to e-auction in NEC/ECL.
d) Rule NISI in terms of prayers above and to make such rule
absolute.
e) An Injunction or order do issue to treat the writ petitioner
unit at par with linked units of CIL who are being compelled to
pay a variable e-auction price instead of notified price as
enumerated hereinabove.
f) CIL and its subsidiaries cannot discriminate against the writ
petitioner or similarly circumstanced units.
g) Writ petitioner be permitted to lift coal as per entitlement by
furnishing Indemnity Bond and other undertaking specified by
the Hon’ble Supreme Courtin solemn orders dated 10.10.05 and
extensions thereof till date.
h) Ad interim order in terms of prayers above till the Hon’ble
Supreme Court makes a final adjudication for units who are
beneficiaries of the aforesaid orders.
i) Such further and/or other order or orders as this Hon’ble
Court may deem fit and proper in the aforesaid context or entitle
thereto.”
5. In the meantime, by a specific interim order passed in several SLPs and
Transfer Petitions, in the case of Ashoka Smokeless Coal Industries (P)
Limited & Ors. v. Union of India and Ors.reported in(2006) 9 SCC 228
(Ashoka Smokeless 1st), the Supreme Court ordered as an interim measure,
that if the petitioners succeed in the challenge to the e-auction process, the
deposit of 33.13 % over and above the notified price by the linked consumers
would be refunded back to them with interest @ 12% per annum from the
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date of payment till the date of return to the linked consumer/ writ
petitioner concerned,
6. The earlier interim order dated 19th October 2005, was modified on 24th
February, 2006 by the Hon’ble Supreme Court, in the case of the writ
petitioner who moved a transfer petition of the instant writ petition before
the Hon’ble Supreme Court being T.C No. 100 of 2006, and was directed to
continue until disposal of the writ petitions by the Hon’ble Supreme Court.
7. By order dated 24th February 2006, the Hon’ble Supreme Court in the said
transfer petition 100 of 2006 directed the CIL to accept 33.13% over and
above the notified price as a precondition to supply coal to the appellant. The
said amount was directed to be refunded to the appellant if it succeeded in
the writ petition.
8. By a detailed judgment, the Hon’ble Supreme Court, in the case of Ashoka
Smokeless Coal Industries P. Limited & Ors. v. Union of India and
Ors.reported in(2007) 2 SCC 640 (Ashoka Smokeless 2 nd) struck down the
e-auction process. By reason thereof, the benefit of the interim order passed
in Ashoka Smokeless 1st (Supra) accrued to all the writ petitioners before
the Supreme Court including the applicant in the transfer petitions, except
to the writ petitioner, who was pursuing his remedies independently.
9. The writ petitioner herein having realized that they had filed an independent
writ petition and did not get the benefit of the interim and final orders in
Ashoka Smokeless 1st and 2nd, sought to press for final hearing of the
instant writ petition.
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10. In contempt proceedings taken out, inter alia, by the petitioner before the
Hon’ble Supreme Court, by an order dated 30 th October, 2007, it was
directed that the amounts paid in excess of the notified price would be
refunded to each of the petitioners upon verification of documents which
were to be submitted in that behalf. There is no mention of payment of any
interest on the said amounts.
11. The appellants thereafter unconditionally withdrew T.P. No. 100 of 2006 on
18th April 2013.
12. The learned Single Bench disposed of the first writ petition being
WP/2068/2005 by an order dated 1 st October, 2015 directing the writ
petitioner to approach the General Manager (Sales) for expeditious re-
verification of their claims. The CIL was directed to complete the process of
re-verification within a period of four weeks from the date of communication
of the said order. The claims once settled, were directed to be paid forthwith
to the petitioners by the Coal Companies.
13. There was no prayer or direction for any interest on the amounts to be
refunded. The petitioners did not also seek amendment of the WP 2068 of
2005, to seek any interest on the refund.
14. The Coal India, upon re-verification of accounts, paid interest to, the writ
petitioner on the excess amounts paid on and from the date of the 1 st interim
order of the Hon’ble Supreme Court dated 12 th December, 2005. In so far as
the excess payment made over and above the notified price prior thereto
interest was refused by the Coal companies.
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15. The writ petitioners filed GA/3815/2015 in the disposed of writ petition
WP/2068/2005 seeking modification of the order dated 1 st October, 2015
passed by the Single Bench disposing of the writ petition. The modification
was to the extent of seeking interest in respect of the excess payments made
by the writ petitioner to Coal Companies prior to 12 th December, 2005. Such
prayer was allowed by the Single Bench by order dated 6 th January 2016.
16. On an appeal being carried by the CIL therefrom, a Co-ordinate Bench of
this Court by judgment and order dated 21 st January, 2016 passed in
APOT/1/2016, held that GA/3815/2015 could not have been maintained by
the writ petitioner in a disposed of writ petition. The Court went on to hold
that the claim for interest may have been impliedly declined by the Single
Bench in its order dated 22nd December, 2015. In the same breath, the Co-
ordinate Bench went on to hold that prayer for interest may be barred by the
principles of res judicata. The Division Bench also made a stray observation
that the claim of the petitioner for interest prior to December 2005 towards
payment made in excess of the notified price prior to 12 th December 2005
could be a fresh cause of action.
17. It is based on the aforesaid stray observation that the present writ petition,
WPO 293 of 2019, was filed seeking interest on the excess sums paid prior to
the order of the Supreme Court dated 12th December 2005 ( Supra)
18. The Single Bench was in quandary as recorded in the order dated 20 th
November 2024 as to which line adopted by the Co-ordinate Bench in its
orders dated 21st January, 2016 and 27th June, 2016 was the ratio and
which was obiter.
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19. This Court, having carefully considered the judgment dated 21 st January,
2016, is of the view that the writ petitioner, after striking down of the e-
auction process by the Hon’ble Supreme Court in Ashoka Smokeless 2nd
(Supra), either ought to have sought amendment of his writ petition to
include a claim for interest or should have prayed for leave either under
Order 2 Rule 2 and 3 or under the other provisions of the CPC to take out
independent proceedings for such interest, in the order dated 22 nd
December, 2015. Such prayer and such leave not having been reserved to
the writ petitioner, the second writ petition being WPO 293 of 2019, could
not have been maintained. In this regard, the decision of the Supreme Court
inCuddalorePowergen Corporation Ltd v. M/s
ChemplastCuddaloreVinyls Limited and Anr. reported in 2025INSC
73may be referred to:-
38. Order II Rule 2(1) requires every suit to include the whole of the claim to
which the plaintiff is entitled to in respect of a particular cause of action.
However, the plaintiff has an option to relinquish any part of his claim for the
purpose of bringing the suit within the jurisdiction of any court. Order II Rule 2(2)
contemplates a situation where a plaintiff omits to sue or intentionally
relinquishes any portion of the claim which he is entitled to make. If the plaintiff
so acts, then he shall not, afterwards, sue for the part or portion of the claim that
has been omitted or relinquished.It must be noticed that Order II Rule 2(2) does
not contemplate the omission or relinquishment of any portion of the plaintiff’s
claim with the leave of the court so as to entitle him to come back later to seek
what has been omitted or relinquished. Such leave of the court is contemplated
by Order II Rule 2(3) in situations where a plaintiff being entitled to more than
one relief on a particular cause of action, omits to sue for all such reliefs. In such
a situation, the plaintiff is precluded from bringing a subsequent suit to claim the
relief(s) earlier omitted except in a situation where leave of the court had been
obtained. It is, therefore, clear from a conjoint reading of the provisions of Order II
Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order II Rule 2
contemplate two different situations, namely, where a plaintiff omits or
relinquishes a part of a claim which he is entitled to make and, secondly, where
the plaintiff omits or relinquishes one out of the several reliefs that he could have
claimed in the suit. It is only in the latter situation where the plaintiff can file a
subsequent suit seeking the relief omitted in the earlier suit, provided that at the
time of omission to claim the particular relief, he had obtained the leave of the
court in the first suit
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44. Therefore, the phrase “cause of action” for the purposes of Order II Rule 2
would mean the cause of action which gives an occasion for and forms the
foundation of the suit. If that cause enables a person to ask for a larger and wider
relief than that to which he limits his claim, he cannot be permitted to recover the
balance reliefs through independent proceedings afterwards, especially when the
leave of the court has not been obtained.
emphasis applied
20. The context in which the Co-ordinate Bench in its judgment dated 21st
January 2016 observed that a new cause of action has arisen from the letter
dated 2nd December 2015, written by the learned advocate on record of the
petitioner to the respondent, seeking the payment of interest needs to be
considered for appreciating the true purport of such an observation. The
relevant paragraphs from the said judgment are set out below:-
“As noted, the learned advocate on record for the
respondent/writ petitioner,byletter dated 13th October, 2015
intimated the order dated 1st October, 2015 and requested for re-verification of
accounts. Thereafter, hearing was held on 5th November, 2015 in which the
respondent / writ petitioner appeared. On 17th November, 2015 the ECL had
passed an order after re-verification. Subsequently, the learned advocate on
record for the respondent/ writ petitioner issued the letter dated 2nd
December, 2015 requesting, inter alia, for payment of interest @ 12% on
the amount in question.
Since the Supreme Court in its judgments did not issue direction for grant of
interest, the letter dated 2nd December, 2015 issued by the learned
advocate on record for the respondent/writ petitioner claiming interest is a
new cause of action.”
21. The claim for interest to be paid on the excess amount, paid by the
petitioner before the date of the aforesaid interim order formed part of the
cause of action pleaded in the WPO 2068 of 2005. The cause of action for
interest arises from the principal amount itself. The petitioner having claimed
and secured the relief of refund of the excess sum (principal amount) in WPO
2068 of 2005, ought to have also argued the payment of interest thereon in
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and/or during the hearing of the writ petition itself. Since it has not been
raised therein, the subsequent plea of interest is barred by constructive res
judicata. The decision of the Supreme Court in State Of Andhra Pradesh v.
Dr. Rao, V.B.J. Chelikanireported in 2024 INSC 894 is referred to:-
“30. In Forward Construction Company (supra), this Court, relying upon
Explanation (IV)18 to Section 11 of the Code of the Civil Procedure,
1908 observed that any matter that might or ought to have been made a ground
of attack in a former suit is deemed to have been made a matter directly or
substantially an issue in the said suit. Therefore, res judicata impacts not only
the actual matter determined, but every other matter which the parties might or
ought to have litigated and have decided as incidental to, or essentially
connected with the subject matter of the litigation. It includes every matter
coming into the legitimate purview of the original action, both in respect of the
matters of claim and defence. The judgment explains that the underlying
principle in Explanation (IV) is that where the parties have had an opportunity of
controverting a matter, that should have been taken to be the same thing as if
the matter had been actually controverted and decided”
Emphasis Applied
22. Admittedly, the letter dated October 13, 2015 was written by the
petitioner to intimate the respondent about the order of the learned single
judge dated October 1, 2015 passed in WPO 2068 of 2005. It did not contain
any claim for interest to be given for the period preceding the passing of
aforesaid interim order. It was only after the respondent refused to pay the
interest for the said period that the petitioner on December 2, 2015,
wrote another letter to the respondent claiming interest to that effect. This
letter has been observed by the coordinate bench to have given birth to a
new cause of action. Therefore a new cause of action cannot be created by
writing a letter. It shall be based on the happening of an event. No new event
intervened after the learned single judge passed the order.
23. While it may be attractively argued that the refusal of the respondent to pay
interest constituted a new cause of the action. However, the said argument
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loses its breath when one notes that the payment of the interest, so refused
by the respondent, relates to the subject matter of WPO 2068 of 2005,
wherein only the excess amount paid by petitioner, was claimed by it, and
the payment of the interest thereon was never raised and/or
argued. Hence, no new cause of action arose either from the refusal to pay
the interestor fromsubsequent letter dated 2 ndDecember, 2015. The decision
of the Supreme Court in A.K. Gupta and Sons Ltd.
v. Damodar Valley Corpn. reported in 1965 SCC OnLine SC 49 may be
referred to, which expounded the meaning of ‘new cause of action’ while
dealing with an application for amendment of pleadings:-
“9. The expression “cause of action” in the present context does not mean “every
fact which it is material to be proved to entitle the plaintiff to succeed” as was
said in Cooke v. Gill [(1873) LR 8 CP 107, 116] in a different context, for if it
were so, no material fact could ever be amended or added and, of course, no one
would want to change or add an immaterial allegation by amendment. That
expression for the present purpose only means, a new claim made on a new
basis constituted by new facts. Such a view was taken
in Robinson v. Unicos Property Corporation Ltd. [(1962) 2 All ER 24] and it
seems to us to be the only possible view to take. Any other view would make the
rule futile. The words “new case” have been understood to mean “new set of
ideas” : Dornan v. J.W. Ellis & Co. Ltd. [(1962) 1 All ER 303] This also seems to
us to be a reasonable view to take. No amendment will be allowed to introduce a
new set of ideas to the prejudice of any right acquired by any party by lapse of
time.
10. Now, how does the present case stand on these principles? Does the
amendment introduce a new cause of action or a new case? We do not think it
does. The suit was on the contract. It sought the interpretation of a clause in the
contract only for a decision of the rights of the parties under it and for no other
purpose. It was the contract which formed the cause of action on which the suit
was based. The amendment seeks to introduce a claim based on the same cause
of action, that is, the same contract. It introduces no new case or facts. Indeed
the facts on which the money claim sought to be added is based are not in
dispute. Even the amount of the claim now sought to be made by amendment,
was mentioned in the plaint in stating the valuation of the suit for the purpose of
jurisdiction. The respondent had notice of it. It is quite clear that the
interpretation of the clause was sought only for quantifying the money claim. In
the written statement the respondent specifically expressed its willingness to pay
the appellant’s legitimate dues which could only mean such amount as might be
due according to the rates applicable on a proper interpretation of the clause.
The respondent was fully aware that the ultimate object of the appellant in filing
the suit was to obtain the payment of that amount. It was equally aware that the
amount had not been specifically claimed in the suit because the respondent
11had led the appellant to believe that it would pay whatever the court legitimately
found to be due. It in fact said so in the written statement. If there was any case
where the respondent was not entitled to the benefit of the law of limitation, the
present is that one. The respondent cannot legitimately claim that the
amendment will prejudicially affect his right under that law for really he had no
such right. It is a case in which the claim for money was in substance in the
plaint from the beginning though it had not formally been made.
Emphasis applied
24. The letter dated at best is a belated claim, which was raised for the first
time.
25. For the reasons stated above WPO 293 of 2019 fails and is hereby dismissed.
26. There shall be no order as to costs.
(RAJASEKHAR MANTHA, J.)
(AJAY KUMAR GUPTA, J.)
As./Arsad/GH/snn.