More listing trouble in SC as Adani seeks review of electricity dispute through miscellaneous application; judgement reserved

In August 2020, the top court granted compensation to Adani Power but held that the Discom is not liable to pay the surcharge

Jaipur Vidyut Vitran Nigam Ltd v Adani Power Rajasthan Ltd. was to come up before a Division Bench of Justices Aniruddha Bose and P.V. Sanjay Kumar on 23 January. “List on 23.01.2024 within the first five matters,” the Bench’s 19 January Order directed the Court registry.

But on 23 January, the matter was nowhere to be seen in the day’s cause list. 

On the previous date of hearing on 17 January, Justice P.S. Narasimha had recused without citing a reason.

The case involves Adani Power Rajasthan Ltd. (APRL) seeking a late-payment surcharge (LPS) from Jaipur Vidyut Vitran Nigam Ltd (JVVNL). In 2020, a three-judge Bench had granted compensation to APRL as JVVNL could not supply an Adani-run power plant in Kawai with domestic coal as originally agreed.

Since Adani had to import coal to run the plant, the “compensatory tariffs” amounted to over ₹5,000 crore and penalties and interest amounted to nearly ₹3,000 crore. Adani had also claimed an LPS of ₹1,376 but the Court had turned down that request. 

Listing issue

When the Bench assembled on the morning of 23 January, Senior Advocate Dushyant Dave, appearing for JVVNL, mentioned the deletion from the cause list. “When we enquired, the Assistant Registrar very boldly says, ‘I am under instructions not to list it,’” Dave lamented.

Dave contended the registry’s deletion of the case amounted to a violation of the Court’s Order of 19 January. “It should be viewed very seriously,” he said, urging the Bench to summon registry officials for an explanation.

The Bench then summoned a senior registry official to the courtroom. The judges and the official proceeded to leave the courtroom for a closed-door discussion. When the Bench reassembled, Justice Bose declared, “List it on Wednesday as the first item.”

The case found space in the next day’s supplementary cause list. “To be taken up as the first item on the board after fresh matters,” the entry stated.

Seeking review through application

The larger question involved was whether APRL could seek a modification of the Court’s August 2020 decision through a Miscellaneous Application, as opposed to a Review Application.

On 5 January 2023, JVVNL wrote to the Secretary General of the Supreme Court questioning how a Miscellaneous Application by APRL had been cleared by the Court’s registry in a case that was fully disposed of in August 2020.

The letter stated that APRL’s action, “that too without any application for condonation of delay”, was an attempt to seek a review of the Court’s August 2020 judgement without moving a review petition. 

Taking the letter into consideration, a Bench of Justices M.R. Shah and C.T. Ravikumar had directed the Registrar (Judicial) to submit a report within ten days. The contents of any report submitted in pursuance are not known.

In the hearing on 24 January 2023, Dave reportedly alleged that APRL’s application came to be listed due to a suppression of facts which amounted to fraud on the Court. 

Senior Advocate Dr. Abhishek Manu Singhvi, appearing for APRL, contended that the issue of LPS was not decided by the Supreme Court in its August 2020 Judgement. Singhvi also offered to withdraw the application “and be granted the liberty to go before an appropriate forum.”

Dave, however, urged the Bench to not let APRL withdraw their petition but dismiss it with extraordinary costs. The Court reserved its verdict.