Decided on February 08,2016

Bharat Hydro Power Corp. Ltd. Appellant
STATE OF ASSAM And ORS. Respondents


- (1.) Heard learned senior counsel/learned counsel for the parties. Leave granted.
(2.) This appeal is directed against the judgment and order dated 20.10.2011 passed by the Gauhati High Court in RFA No.26 of 2007, affirming the dismissal of Title Suit No. 439 of 2004 on the file of Civil Judge (Sr. Division) No.3, Kamrup, Guwahati, answering issue nos. 4 and 5, against the appellant. Issue nos. 4 and 5 are reproduced hereunder: "Issue No.4 : - Whether this suit is barred U/S 9 of the C.P.C. Issue No. 5 : - Whether the suit is barred by the Principle of Res-Judicata - The appellant herein filed certain claims for the expenditure in respect of road communications, temporary buildings and permanent buildings, plantations, environment, ecology and afforestation, dewatering expenses, expenses for security services, salary and other establishment expenses during implementation, repairs to plant and machinery and interest at the rate of 12% per annum from the date of expenditure till 30.11.1996 from the date of acquisition of the 100 MW Hydro Power Project at Karbi Langpi (Lower Barapani), Assam (for short 'the Project') under Section 14 of the Bharat Hydro Power Corporation Limited (Acquisition and Transfer of Undertaking) Act, 1996 (for short 'the Act') under the various heads incurred prior to 10.01.1994, before D.N. Baruah (retired High Court Judge) Commission, which was constituted under the Act by a notification of the Government for determining the compensation payable to the appellant herein, which was disallowed by the Commission. Certain claims after taking over the possession of the Project and the claims which were the subject matter of title suit were also preferred before the Commission. In a challenge arising from such determination by the Commission by way of an award, the High Court disallowed the claims for Rs.46,25,302.70 on account of expenditure incurred on the Project before formal handing over the Project prior to 10.01.1994 after taking a view that the said claims were prior to taking over of the Project and thus, did not fall within the jurisdiction of the Commission under the powers conferred under the said Act. The High Court, after examining the disallowing of claims prior to 10.01.1994 and after 30.11.1996, affirmed the award passed by the Commission and held that the Commission had rightly come to the conclusion, on the basis of the evidence placed on record, that the Project was actually handed over to the appellant herein on 10.01.1994 and thus, the appellant would be entitled for compensation for whatever has been done for the items mentioned in Section 8(a) to 8(g) excluding items under clause (d) of Section 8 of the Act from 10.01.1994 till the appointed day, i.e. 30.11.1996. It makes it very clear with regard to disallowing of the claim to the tune of Rs.47,35,697.97, which was the subject matter of claim under the expenditure incurred under various heads prior to 10.01.1994 holding that the Commission had no jurisdiction or authority to grant compensation for the expenses incurred before 10.01.1994 except items falling under clause (d) of Section 8 of the Act. The items which fell under clause (d) of Section 8 of the Act were furniture and fixture worth Rs.96,831.21 and consumable stores worth Rs.13,564.00 which had been purchased prior to 10.01.1994 but being utilized for the purposes of the Project, and therefore, the award of the amount by the Commission for the charges under different heads prior to 10.01.1994 amounting to Rs.47,35,697.97 Rs.1,10,395.27 = Rs.46,25,302.70 was set aside. The appellant accepted the said judgment and order and filed civil suit for determination of compensation. The respondent contested the matter by placing reliance that the claim preferred by the appellant is not tenable in law as the same was the subject matter of settlement between the parties in the earlier round of litigation in Civil Appeal No. 2825 of 2005, which was disposed of by this Court on 29.11.2012, in terms of the settlement arrived at between the parties, taking the said settlement on record, along with Special Leave Petition (Civil) No.15704 of 2004, filed by the State, both impugning the judgment and order dated 29.03.2004 passed by the High Court. Relevant extracts from the order reads as under: i) The appellants shall pay a sum of Rs. 34 crores to respondent no. 2- Bharat Hydro Power Corporation Limited in full and final settlement of their claim which is the subject matter of these appeals. ii) Out of above Rs. 34 crores, Rs. 15 crores have already been paid to respondent No. 2 and, accordingly, that amount shall stand adjusted. The remaining Rs. 19 crores shall be paid by the appellants to respondent No. 2 expeditiously and not later than three weeks from today. iii) On payment of above amount by the appellants to the respondent No. 2, the security furnished by the respondent No. 2 before the Guwahati High Court shall stand discharged. xxx xxx xxx 7. Thus, the Assam State Electricity Board has agreed that 51,00,000/- equity shares of Bharat Hydro Power Corporation Limited -respondent No. 2 issued to it would be unconditionally transferred to SPML Infra Limited and/or Bharat Hydro Power Corporation Ltd. - respondent No. 2. This takes care of transfer of 51,00,000/- equity shares of respondent No. 2. 8. We, accordingly, accept the above settlement between the appellants and respondent No. 2 which, in our view, is fair and reasonable. 9. On compliance of the above, the dispute between the parties shall stand settled fully and finally and no claim of respondent No. 2 with respect to the subject matter of the Civil Appeals shall remain outstanding in any form whatsoever."
(3.) Learned counsel for the respondents sought to justify the correctness of the concurrent finding of fact recorded on the contentious issue nos. 4 and 5 framed in the title suit, placing reliance upon the aforesaid clauses of the Act contending that the subject matter including the claims preferred in the aforesaid title suit was settled. Therefore, dismissal of the title suit by the trial court answering issue nos. 4 and 5 holding that the jurisdiction of the civil court was expressly barred under Code of Civil Procedure and in any case the subsequent claim preferred by the appellant is barred by res-judicata, was based on proper appreciation of material on record. Correctness of the said concurrent finding of fact is under challenge in this appeal.;

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