M/S. GAIL (INDIA) LIMITED versus M/S. INDIAN PETROCHEMICALS CORP. LTD. & ORS. on 8 February 2023

SUPREME COURT REPORTS

[2023] 2 S.C.R.

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M/S. GAIL (INDIA) LIMITED

v.

M/S. INDIAN PETROCHEMICALS CORP. LTD. & ORS.

(Civil Appeal Nos. 3504-3505 of 2010)

BFEBRUARY 08, 2023

[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]

Constitution of India – Arts. 226, 12, 14 – Commercial Contract– Unequal bargaining power – Maintainability of writ petition –Ministry of Petroleum and Natural Gas issued a letter for allocationCof natural gas to IPCL (formerly a PSU) – IPCL entered into acontract with GAIL for supply of natural gas – As per the allocationterms, IPCL had to lay down its own pipelines and those pipelinesalone were utilised for carrying gas – IPCL laid down pipelines –However, GAIL levied charge for ‘loss of transportation charges’Din terms of the contract – Clauses of the contract levying suchcharges were challenged by IPCL after five years of entering intothe contract – Clauses quashed – Justification of – Held: Althoughthe dispute arises from a commercial contract, the writ petition wasmaintainable – At the time of entering into contract, GAIL wasenjoying a monopolistic position w.r.t the supply of natural gas inEthe country – IPCL, having incurred a significant expense in settingup the appropriate infrastructure, had no choice but to enter intoagreement with GAIL – Thus, there was a clear public elementinvolved in the dealings between the parties – Writ jurisdiction canbe exercised when the State, even in its contractual dealings, failsFto exercise a degree of fairness or practices any discrimination –GAIL’s action in levying ‘loss of transportation charges’ was exfacie discriminatory, insofar as IPCL was mandated to build its ownpipeline in terms of the allocation letter and was not using GAIL’spipeline at all – GAIL exercised an unequal bargaining power atthe time of signing the contract – The contractual exercise ofGproviding such a clause runs contrary to every commercial andcommon sense and is arbitrary – While, the quashing of the clausesis upheld, the refund is restricted to a period of three years prior tothe date of the filing of the writ petition on account of IPCL’s delayin approaching the court.H

Partly allowing the appeals, the Court

HELD: 1.1 Although the dispute arises from a commercialcontract, find that the writ petition challenging the clauses wasmaintainable. It is not disputed that GAIL is a Public SectorUndertaking and thus qualifies under the definition of ‘State’ asper Article 12 of the Constitution. At the time of entering intocontract, GAIL was enjoying a monopolistic position with respectto the supply of natural gas in the country. IPCL, having incurreda significant expense in setting up the appropriate infrastructure,had no choice but to enter into agreement with GAIL. Thus, therewas a clear public element involved in the dealings between theparties. Further, writ jurisdiction can be exercised when the State,even in its contractual dealings, fails to exercise a degree offairness or practices any discrimination. In the present case,GAIL’s action in levying ‘loss of transportation charges’ was exfacie discriminatory, insofar as IPCL was mandated to build itsown pipeline in terms of the allocation letter and was not usingGAIL’s HBJ pipeline at all. Thus, it cannot be said that merelybecause an alternative remedy was available, the Court shouldopt out of exercising jurisdiction under Article 226 of theConstitution and relegate the parties to a civil remedy. [Para19][336-B-E]

1.2 It would be extremely unfair and unjust, apart from beingan arbitrary action in violation of Article 14 of the Constitution ofIndia that IPCL is charged for loss of transportation charges whenit is mandated to lay down its own pipelines and not to transportthe gas through the HBJ pipeline. This action also violates theprinciple of non-discrimination enshrined in Article 14. IPCL,which is using its own pipelines, is being treated at par with othercommercial entities who are carrying gas through the HBJpipeline laid down by GAIL. This is more so when the pricingorders by the concerned authority, i.e. MoPNG stipulate a fixedprice for natural gas. On a basic principle, it cannot be doubtedthat once GAIL has laid down the pipeline, it is entitled tostructure in its cost in the contract. However, the issue is notsimply that. Two public sector enterprises entered into a contractin pursuance of the allocation made by the MoPNG. There wasalso a time constraint for IPCL. After incurring a heavy A

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Aexpenditure in the construction of the Gandhar Plant, IPCL hadvery little choice but to enter into the contract. What is of mostsignificance is that IPCL was bound to follow the allocation termsprovided by the principal authority, i.e., MoPNG. Thus, as pleadedby IPCL, they were faced with a “Hobson’s choice”, where theyhad to either give up the contract or accept the clauses levyingBtransportation charges. On a conspectus of the above factors, itcan be said that GAIL exercised an unequal bargaining power atthe time of signing the contract. GAIL may have made a hugeinvestment in constructing the HBJ pipeline, but at the sametime IPCL had also made a huge investment in constructing itsCown pipelines. This was not an option but a mandate of theallocation letter issued by the MoPNG. Thus, it is difficult to acceptthat on the one hand IPCL must lay down its own pipelines, andsimultaneously pay for loss of transportation through the HBJpipeline even without using it. Thus the appeal(s) are dismissedqua the aspect of maintainability of the writ petition and theDquashing of the clauses dealing with loss of transportation chargesin the case of IPCL. However, it is deemed fit to restrict therelief to period of three years insofar as refund is concerned fromthe date of filing of the writ petition, i.e., 09.03.2006. [Paras 20-23, 26][336-F-H; 337-A-C, E-F, 338-C-D]

EJoshi Technologies International Inc. v. Union of India& Ors. (2015) 7 SCC 728 : [2015] 6 SCR 1042; LiptonIndia Ltd. & Ors. v. Union of India & Ors (1994) 6SCC 524 : [1994] 3 Suppl. SCR 600; ABL InternationalLtd. & Anr. v. Export Credit Guarantee Corporation ofFIndia & Ors. (2004) 3 SCC 553 – relied on.Central Inland Water Transport Corporation Limitedv. Brojonath Ganguly (1986) 3 SCC 156 : [1986] 2SCR 278; Rameshwar & Ors. v. State of Haryana andOrs (2018) 6 SCC 215 : [2018] 5 SCR 205; KalprajGDharamshi & Anr. v. Kotak Investment Advisors Ltd. &Anr. (2021) 10 SCC 401 – referred to.

Case Law Reference[2015] 6 SCR 1042relied onParas 111994] 3 Suppl. SCR 600relied onParas 11H

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3504-3505 of 2010.

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From the Judgment and Order dated 17.06.2008 of the High Courtof Gujarat at Ahmedabad in LPA Nos.1622 of 2006 and 1012 of 2007.

Tushar Mehta, SG, Sanyat Lodha, Ms. Surbhi Arora, PratyushShrivastava, Advs. for the Appellant.

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Dr. A. M. Singhvi, Sr. Adv., Raghav Shankar, Avishkar Singhvi,Snehal Kakrania, Prateek Kumar, Sanjeev Kapoor, Keyur Gandhi,Raheel Patel, Amit Bhandari, Ms. Melanie D’Souza, Rohit Ghosh, M/s.Khaitan & Co., Advs. for the Respondents.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. M/s. GAIL (India) Limited (for short ‘GAIL’), the appellantherein, is a Government of India undertaking, incorporated on 16.08.1984,engaged primarily in the activity of providing services for the utilisationof natural or associated gas. Indian Petrochemicals Corporation Ltd.(for short ‘IPCL’), respondent no.1 herein, formerly a public sectorundertaking, is engaged in the manufacture of petrochemicals. It ceasedto be a public undertaking w.e.f. June 2002, when 26% of its shareswere sold to Reliance Petroinvestments Ltd. in line with the Government’sdisinvestment policy. Respondent no. 2 is a shareholder of IPCL andrespondent no. 3 is the Union of India.

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Background

2. On 01.01.1999, the Ministry of Petroleum and Natural Gas,Government of India (hereinafter referred to as ‘MoPNG’), the allocatingand price-fixing authority for natural gas, issued a letter for allocation ofnatural gas to IPCL. IPCL was allotted 0.85 MMSCMD of semi-richgas on firm basis from Hazira to IPCL’s Gandhar Unit (at Dahej) forextraction of C-2 and C-3 fractions. The same was made subject to thefollowing conditions:

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A“(i) Signing of gas supply contract with GAIL.

(ii) The pipelines require to transport semi-rich gas from Hazirato IPCL Unit at Gandhar and to transport the lean gas back toHazira shall be laid by M/s IPCL.

B2. You are requested to enter into necessary gas supply contractwith GAIL within 60 days of issue of this letter failing which aboveallocation will be liable for allocation.”

Looking to the significance of the time period in the letter, theparties began negotiating the terms of the gas supply contract. IPCLCthus entered into a contract with GAIL on 09.11.2001 for supply of naturalgas. IPCL had set up and installed a plant at Gandhar by investingapproximately Rs. 4500 crores. Further, in order to meet the stipulationof the allocation letter, it laid down pipelines between Hazira and Gandharat a cost of approximately Rs. 354 crores.

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D3. As per the contract, the methodology of supply of gas was thatGAIL received natural gas from the producer, i.e. ONGC, which procuredthe same at Hazira from the Bombay High project. Thereafter, the gaswas transported from Hazira to IPCL’s Gandhar plant through pipelineslaid down by IPCL. The unutilised gas was then sent back to Hazira,also using IPCL’s pipelines.E

4. We may flag at this stage itself the significance of the mannerin which the gas is carried, as the dispute before us revolves around thisparticular aspect. On one hand, as per the allocation terms, IPCL had tolay down its own pipelines (which were so laid), and those pipelinesFalone were utilised for carrying gas. On the other hand, the charge islevied by GAIL for ‘loss of transportation charges’ in terms of thecontract. It is this aspect of the contract between the parties which hasbeen the subject matter of adjudication in writ proceedings filed by IPCLunder Article 226 of the Constitution of India. IPCL succeeded beforethe learned Single Judge in terms of the orders dated 19.09.2006 andG11.04.2007, and before the Division Bench in the Letters Patent Appealsvide order dated 17.06.2008.

5. We may note that though the contract inter se the parties wassigned on 09.11.2001, the challenge was laid to Clauses 10.01 and 4.04of the contract only on 09.03.2006, i.e. after five years. In this interregnum,HIPCL ceased to be a public sector undertaking.

6. The other development is the decision of GAIL to stop levyingloss of transportation charges in May 2016. Thus, the total amountcollected under the aforesaid clauses is stated to be Rs. 134 croresbefore it was quashed by the Single Judge and sustained by the DivisionBench.

7. In order to understand the contractual context, the relevanttwo clauses are extracted below:

“4.04 The BUYER, in addition to price of GAS mentioned in Article10, shall pay to the SELLER Rs. 4,16,700/- (Rupees Four LakhSixteen Thousand and Seven Hundred) towards fortnightly servicecharges on account of deployment of manpower by the SELLERfor terminal operation and routine maintenance along withapplicable taxes / levies thereon, connected with delivery of Gasat the Point of Onward Delivery and receipt of Gas returned bythe BUYER at the Point of Return Delivery. The above servicecharges is exclusive of any material requirements like tools, tacklesetc. and also the spares / items / equipments to maintain the terminalin operable condition. Any interruptions in supply of gas to anyconsumers on account of such material requirement shall be atthe risk and cost of the BUYER. The above Service chargesshall be increased by 3 (Three) percent per annum on yearly restbasis with effect from 1[st] April following the scheduled date ofcommencement of gas supply mentioned under article 2.01hereinabove. In addition to the above, the BUYER shall also payto the SELLER transportation charges, as applicable from time totime along the HBJ pipeline system for the quantity of GAS utilized/ shrinkage as per formula provided under Article 5.02 or for thedifference in quantity of gas measured at the Point of Onward–Delivery at Metering Station No. I (after adjusting the quantityof Gas Bye Passed as mentioned under Article 4.03 hereinabove)–and Point of Return Delivery at Metering Station No. II,whichever is higher. The BUYER shall pay above charges to theSELLER in addition to invoice for supply of gas to be raised asper Article 11 hereinafter along with all applicable taxes / leviesthereon.Provided that in case above charges are not paid by theBUYER within 3 (Three) working days of presentation of theinvoice, the SELLER will present the invoice for the same to theBank against Letter of Credit and draw the amount. The BUYER

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will make arrangements with the Bank in a manner that in suchan eventuality the full L/C amount gets automatically reinstated.

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ARTICLE 10-PRICE OF GAS

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10.01 Present price of 1000 (One Thousand) Standard Cubicmeters of GAS w.e.f. 1.10.1997 is applicable as per GovernmentPricing Order No. L-12015/3/94-GP dated 18.9.1997 (Annexure-IV) after which the SELLER shall have right to fix the price ofGAS which may be as per directive, instruction, order, etc. of theCGovernment of India which is likely to be market related inaccordance with current policy of liberalisation of the Governmentof India and the BUYER shall pay to the SELLER such price ofGAS. In addition to the above, the BUYER shall also pay to theSELLER transportation charges, as applicable from time to timealong the HBJ pipeline system, for the quantity of GAS utilised/Dshrinkage. Provided further, the price of GAS so fixed is exclusiveof Royalty, Taxes, Duties, Service/Transportation charges and allother statutory levies as applicable at present or to be levied infuture. By the Central or State Government of Municipality orany other local body or bodies payable on purchase of Gas fromEONGCL/Other Producer(s) by the SELLER or on sale fromSELLER to the BUYER or on return of the balance quantity ofGAS after processing by the BUYER to the SELLER and theseshall be borne by the BUYER over and above the aforesaid price.”

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(Emphasis supplied)

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(Emphasis supplied)

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8. IPCL challenged the aforesaid clauses primarily on the groundthat they were contrary to the Government pricing orders dated30.01.1987, 31.12.1991, 18.09.1997, 30.09.1997 and 20.06.2005, wherebythe price of natural gas was fixed. Further, the allocation letter by theMoPNG mandated that transportation of gas to IPCL’s plant had to beGthrough IPCL’s own pipelines from the ONGC Metering Station. Thus,it was contended that recovery of ‘loss of transportation charges’ byGAIL was arbitrary and unfair. IPCL did not have the option to transportgas through GAIL’s pipelines due to the mandate of the contract and theallocation letter. IPCL also challenged the aforesaid clauses on the groundof unequal bargaining power. It was contended that GAIL occupied a H

monopolistic position in respect of supply of gas at the time of enteringinto the contract. Additionally, IPCL had a limited time frame to enterinto the contract, particularly as a hefty investment had been made insetting up the gas cracker plant. As a consequence, IPCL claimed refundof the ‘loss of transportation charges’ paid by them. The Single Judgequashed these clauses vide order dated 19.09.2006 as being contrary tothe pricing orders, and thus unfair and unconscionable.

9. GAIL, being aggrieved by the said judgment, preferred a LettersPatent Appeal. In the meantime, IPCL also preferred an application forclarification/modification, seeking directions to GAIL to refund loss oftransportation charges, as apparently no such specific direction had beenpassed by the learned Single Judge. IPCL’s application was allowed byan order dated 11.04.2007, predicated on the reasoning that whileupholding the claim of IPCL, inadvertently the direction of refund hadnot been specifically passed. This latter order also came to be assailedbefore the Division Bench by GAIL.

10. The Division Bench affirmed the Single Judge’s observationsvide order dated 17.06.2008, thereby leading to the present appeal byGAIL.

GAIL’s Plea:

11. At the outset, Mr. Tushar Mehta, learned Solicitor General,appearing for GAIL, contested the very maintainability of the writ petitionfiled by IPCL. He contended that the parties had provided for arbitrationbefore the Permanent Machinery of Arbitrators in the Bureau of PublicEnterprises under Clause 13.1 of the contract. Further, the matter wasstated to be purely contractual in nature, involving the enforceability andvalidity of the terms of the contract, and no case was made out forviolation of Fundamental Rights. The presence of a public law elementwas a sine qua non for the exercise of writ jurisdiction, as elucidated inJoshi Technologies International Inc. v. Union of India & Ors.[1].The endeavour of IPCL, by invoking such writ jurisdiction, was allegedto be an attempt to bypass the law of limitation, as the contract had beensigned way back in 09.11.2001. In any case, the writ petition was alsobarred by limitation, having been filed on 09.03.2006, i.e. after a periodof five years. Reliance was placed on Lipton India Ltd. & Ors. v.Union of India & Ors[2]to contend that communications between the 1(2015) 7 SCC 728.

2(1994) 6 SCC 524.

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Aparties about levy of transportation charges following the signing of thecontract could not extend the period of limitation.

12. He stated that even if the petition was maintainable, the clausescould not have been invalidated by the High Court. It was pointed outthat there were no differences in the bargaining positions of the twoBorganisations where one could be said to be more powerful. Bothorganisations were public sector enterprises at the relevant time. Thecontract was stated to be carefully negotiated and reflected the mutualconsensus between the parties, as was evident from the inter secommunications at the pre-contractual stages. Thus, the clauses couldnot thus be treated as arbitrary or unfair. IPCL’s and the High Court’sCreliance on Central Inland Water Transport Corporation Limited v.Brojonath Ganguly[3]was misplaced as a principle applied to a servicecontract between the employer and the employee could not be importedto a commercial contract, and that too between two public sectorenterprises. The alternative plea was that even were the impugnedDjudgments to be sustained, the amount of refund could not be grantedbeyond the period of limitation, i.e. three years after the signing of thecontract.

13. The basic defence and justification for levy of loss oftransportation charges was that GAIL had made a huge investment inEconstructing its own infrastructure, i.e. the HBJ pipeline (Hazira - Bijaipur- Jagdishpur). GAIL had a limited number of opportunities to supply gasto consumers and, thus, an equally limited number of opportunities tolevy transportation charges to recover its legitimate maintenance costs.The allotment had pre-supposed the imposition of such transportationcosts.F

14. Finally, it was emphasized that the learned Single Judge hadbecome functus officio having pronounced the judgment dated19.09.2006. Thus, there was no question of directing a refund through aclarification/modification application. Such a refund raised questions ofunjust enrichment, as IPCL would have passed on the ‘loss ofGtransportation charges’ paid by them to their own customers. As to whatconstituted unjust enrichment, the Solicitor General sought to refer toRameshwar & Ors. v. State of Haryana and Ors[4].

3(1986) 3 SCC 156.

4 (2018) 6 SCC 215.

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IPCL’s Defence:

15. Dr. A.M. Singhvi, learned Senior Counsel, sought to defendthe impugned order and the maintainability of writ proceedings withrespect to a private contract. The transportation charges were allegedto have a discriminatory effect as IPCL was being treated on par withconsumers who were using the HBJ pipeline, whereas IPCL wastransporting the gas through its own pipelines. That being the plea, itwas urged that the writ jurisdiction was the appropriate remedy as therewere questions of arbitrary state action violating the mandate of Article14. This was notwithstanding the fact that the issue arose from a contractbetween the parties, as was also the case in ABL International Ltd. &Anr. v. Export Credit Guarantee Corporation of India & Ors.[5]It isin these circumstances that the High Court exercised its writ jurisdictionnotwithstanding the availability of an alternative remedy, i.e. the arbitrationclause or through the civil suit. ABL International[6]was also relied onto show that consequent monetary relief could be granted where such awrit petition was successful.

16. With respect to striking down a contractual clause, Dr. Singhviwas at pains to point out that the ambit of Brojonath Ganguly’s[7]casehad been expanded and was not only restricted to service disputes. InKalpraj Dharamshi & Anr. v. Kotak Investment Advisors Ltd. &Anr.[8], this Court considered the bargaining capacity of contracting partiesin a commercial dispute as there was a seemingly unfair or unreasonableclause in the contract.

Discussion:

17. We have considered the arguments and counter arguments ofthe counsel for the parties, and also examined whether the present caseis a fit one for this Court to exercise jurisdiction under Article 136 of theConstitution of India, albeit leave having been granted.

18. In our view, the dispute is within the following parameters.First, whether the writ petition filed by IPCL challenging Clauses 4.04and 10.01 of the contract was maintainable. Second, assuming such a 5 (2004)3 SCC 553.6 (supra).7 (supra).8 (2021)10SCC401.

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Apetition was maintainable, whether the High Court could have invalidatedthe aforementioned clauses on the ground of unequal bargaining powerand arbitrariness / unfairness. Third, whether monetary relief in the formof refund could have been granted after the order dated 19.09.2006 waspassed.

B19. Although the dispute arises from a commercial contract, wefind that the writ petition challenging the clauses was maintainable. It isnot disputed that GAIL is a Public Sector Undertaking and thus qualifiesunder the definition of ‘State’ as per Article 12 of the Constitution. Atthe time of entering into contract, GAIL was enjoying a monopolisticCposition with respect to the supply of natural gas in the country. IPCL,having incurred a significant expense in setting up the appropriateinfrastructure, had no choice but to enter into agreement with GAIL.Thus, there was a clear public element involved in the dealings betweenthe parties. Further, writ jurisdiction can be exercised when the State,even in its contractual dealings, fails to exercise a degree of fairness orDpractices any discrimination. We are fortified in our view by this Court’sdecision in ABL Enterprises[9]and Joshi Technologies[10]. In the presentcase, GAIL’s action in levying ‘loss of transportation charges’ was exfacie discriminatory, insofar as IPCL was mandated to build its ownpipeline in terms of the allocation letter and was not using GAIL’s HBJEpipeline at all. Thus, it cannot be said that merely because an alternativeremedy was available, the Court should opt out of exercising jurisdictionunder Article 226 of the Constitution and relegate the parties to a civilremedy.

20. Now, we come to the validity of the clauses under which ‘loss Fof transportation charges’ were levied. In our view, it would be extremelyunfair and unjust, apart from being an arbitrary action in violation ofArticle 14 of the Constitution of India that IPCL is charged for loss oftransportation charges when it is mandated to lay down its own pipelinesand not to transport the gas through the HBJ pipeline. This action alsoviolates the principle of non-discrimination enshrined in Article 14. IPCL,Gwhich is using its own pipelines, is being treated at par with othercommercial entities who are carrying gas through the HBJ pipeline laiddown by GAIL. This is more so when the pricing orders by the concernedauthority, i.e. MoPNG stipulate a fixed price for natural gas.9 (supra).H10 (supra).

21. On a basic principle, it cannot be doubted that once GAIL haslaid down the pipeline, it is entitled to structure in its cost in the contract.However, the issue is not simply that. We are faced with a scenariowhere two public sector enterprises entered into a contract in pursuanceof the allocation made by the MoPNG. There was also a time constraintfor IPCL. After incurring a heavy expenditure in the construction of theGandhar Plant, IPCL had very little choice but to enter into the contract.What is of most significance is that IPCL was bound to follow theallocation terms provided by the principal authority, i.e., MoPNG. Thus,as pleaded by IPCL, they were faced with a “Hobson’s choice”, wherethey had to either give up the contract or accept the clauses levyingtransportation charges. On a conspectus of the above factors, it can besaid that GAIL exercised an unequal bargaining power at the time ofsigning the contract.

22. In fact, the contractual exercise of providing such a clauseruns contrary to every commercial and common sense and is manifestlyarbitrary, as IPCL is not being charged under any general terms but fora specific purpose. This purpose cannot exist in the contract in view ofthe master authority, i.e., the Union of India, providing to the contrary.

23. GAIL may have made a huge investment in constructing theHBJ pipeline, but at the same time IPCL had also made a huge investmentin constructing its own pipelines. This was not an option but a mandateof the allocation letter issued by the MoPNG. Thus, it is difficult for us toaccept that on the one hand IPCL must lay down its own pipelines, andsimultaneously pay for loss of transportation through the HBJ pipelineeven without using it. We do not accept GAIL’s contention that thecharges could be levied merely because GAIL had laid the HBJ pipelinefor users generally.

24. Further, we may note that the direction for refund vide orderdated 11.04.2007 arose as a consequence of quashing of the clauses. Itwas in the nature of a sequitur and, thus, we do not find any reason tointerfere with the same.

25. We, however, now turn to whether the whole amount is to berefunded. The alternative argument of the learned Solicitor General wasthat the period of limitation, in any case, could not have been expandedin granting the refund. No doubt the issue of loss of transportation chargeswas flagged by IPCL in various communications exchanged inter se the AB

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Aparties subsequent to the signing of the contract. That, however, cannotgrant a license to IPCL to approach the court as and when it considersproper. Thus, while upholding the quashing of the clauses, we are of theview that the refund should be restricted to a period of three years priorto the date of the filing of the writ petition on account of IPCL’s delay inapproaching the court. Here we draw strength from judgement in LiptonBIndia Limited & Ors.[11]case referred to aforesaid, which observedthat the writ petition was entertained because of the plea of discriminationbut then the relief was restricted to what would have been claimed inthe suit.

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26. We thus dismiss the appeal(s) qua the aspect of maintainabilityof the writ petition and the quashing of the clauses dealing with loss oftransportation charges in the case of IPCL. However, we deem it fit torestrict the relief to period of three years insofar as refund is concernedDfrom the date of filing of the writ petition, i.e., 09.03.2006.

27. We are also of the view that this refund should be made withina period of two months from today, failing which it will carry interest at8 per cent per annum from the date it became due. If the refund is madewithin the stipulated time, we are not inclined to levy interest on theEamount due.

28. The appeals are allowed in the aforesaid terms leaving theparties to bear their own costs.

FDivya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals partly allowed.

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H11(supra).