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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
Tidel Park Limited – Applicant
Versus
M/s. Arkay Energy (Rameswarm) Limited – Respondent
Application No. 1102 of 2018 in C.S. No. 389 of 2011
Decided On : 26-02-2018
Code of Civil Procedure, 1908 – Section 89 – Tamil Nadu Court Fees and Suits Valuation Act, 1955 – Section 69-A – Billing – Demand of Power – Sole plaintiff in the main suit is the lone applicant herein. Defendants 1 and 2 in the main suit are the respondents 1 and 2 respectively in this application. – Parties in this application are referred to by their respective ranks in the main suit for the sake of convenience and clarity. – Prayer paragraph in the main suit does not contain a paragraph number, but it has eight sub-paragraphs i.e. "a" to "h". – Court deem it appropriate to extract the prayer paragraph in the main suit. – There is a prayer for refund of Rs. 4,85,32,773/- being the Court fee paid qua sub-paragraphs "a" and "b" of prayer paragraphs, which have now been deleted from the plaint as the same are in seizin by an Arbitral Tribunal. – To be noted, sub-paragraph "c" of plaint prayer paragraph pertains to future interest and therefore does not find place in the extracted tabulation supra. – Held, In the light of chronicled dates, which court have recorded, court now examine if the plaintiff would be entitled to refund of Court fee as sought for in this application. – In answer to this, the date on which the instant application was filed becomes relevant. – Court see from the suit file placed before me that the instant application was filed on 11.01.2018, which is post 01.03.2017. – In other words, on the date on which the instant application was filed, Section 69-A of the Court Fees Act, as amended, was operating. – It follows that, on the date of filing of this application, the plaintiff was entitled to refund of Court fee on a mere reference to Arbitration without waiting for the same to culminate in a settlement. – As alluded to supra, the plaintiff was entitled to refund even prior to the amendment and court have already recorded that the Caveat/rider is that the plaintiff had to wait for a settlement. – It does not have to do so now. In fact, in my reading whether it culminates in a settlement or not is immaterial. – Court have no hesitation in coming to the conclusion that the plaintiff will be entitled to refund of Court fee as sought for. – In other words, prayer in this application deserves to be acceded to and court do so. – Application Allowed
1. Sole plaintiff in the main suit is the lone applicant herein. Defendants 1 and 2 in the main suit are the respondents 1 and 2 respectively in this application. Parties in this application are referred to by their respective ranks in the main suit for the sake of convenience and clarity.
2. Prayer paragraph in the main suit does not contain a paragraph number, but it has eight sub-paragraphs i.e. "a" to "h". I deem it appropriate to extract the prayer paragraph in the main suit. The same reads as follows:
(a) Declaring that the first defendant has defaulted to supply the contracted demand of power and that they are therefore liable to pay the difference in rate between Arkay Energy billing and TNEB Tariff (Discount) amounting to Rs. 4,85,32,773/- [as in paragraph 26(a) (b)] for quantity of power not supplied under the Power Supply Agreement dated 10.11.2005 and consequently.
(b) Directing the first defendant to pay interest pendente lite on the sum of Rs. 4,85,32,773/- in terms of paragraph 26 (a+b) above.
(c) Directing the first defendant to pay interest pendente lite on the sum of Rs. 4,85,32,773/- in prayer (b) from the date of filing the suit until realization thereof.
(d) Declaring that the plaintiff is entitled to interest at 16% p.a. on the investment of Rs. 90 lakh from 05.12.2005 and for a consequent direction for payment of Rs. 77,79,945/- being the money payable for interest at 16% p.a. on Rs. 90 lakh from 05.12.2005 and 29.04.2011, the date of filing of the suit.
(e) Directing the first defendant to pay interest at 16% p.a. pendente lite on the investment of Rs. 90 lakh from 30.04.2011, the date of filing the suit, until payment by the first defendant of the value of the shares as assessed by the statutory auditor of the first defendant in terms of the preliminary decree or the paid up value of the shares i.e. 90 lakh, whichever is higher.
(f) Pass a preliminary decree declaring that the second defendant is liable to purchase the whole of the shares in the first defendant held by the plaintiff in the terms of the shareholders agreement dated 10.11.2005, directing an inquiry by the statutory auditor of the first defendant as to the value of the shares of the first defendant held by the plaintiff and fixing a date for purchase by the second defendant of the shares in the first defendant held by the plaintiff.
(g) Pass a final judgment and decree directing the second defendant to pay the value of the shares as assessed by the statutory auditor of the first defendant in terms of the preliminary decree or to pay the paid up value of the shares i.e. Rs. 90 lakh, in terms of clause 3 of the shareholders agreement, whichever is higher.
(h) Directing the first and second defendants to jointly and severally pay the costs of the suit and pass such further or other orders as may be deemed fit in the interest of justice.
3. Vide separate proceedings in the main suit today (26.02.2018) and an order in Application No. 1101 of 2018 (amendment application), plaint prayers contained in sub-paragraphs "a" to "c" have been given up in the light of a reference to arbitration made in a Section 8 application being Application No. 4804 of 2011 by an order dated 17.01.2013 made by a learned single Judge of this Court. I am informed that the order of the learned single Judge was carried in appeal by way of an intra-court appeal in O.S.A. No. 313 of 2013 and by an order dated 08.02.2017, the aforesaid appeal was dismissed confirming the order of the learned single Judge. In other words, there is a reference to arbitration as far as Plaint prayers "a" and "b" and "c" are concerned. In such circumstances, refund of Court fee paid on the plaint with regard to sub-paragraphs "a" and "b" and "c" alone are sought for by the plaintiff. In sum and substance, this is the prayer in this application. In this regard, I deem it appropriate to extract
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