Kerala
State Electricity Board Vs. Hindustan Construction Co. Ltd.& Ors [2006] Insc
814 (16 November 2006)
Arijit
Pasayat & S.H. Kapadia
WITH (Civil
Appeal No. 1466 of 2000) ARIJIT PASAYAT, J.
Challenge
in these appeals is to legality of the judgment rendered by a Division Bench of
the Kerala High Court holding that the appellant was liable to implement the
order of the appellant-Board dated 19.4.1994. Direction was further given to
issue consequential orders on the basis of decision taken on 12.4.1994 and
30.4.1994 to make necessary payments as expeditiously as possible. The decision
of the Board to cancel the earlier order dated 19.4.1994 on the basis of a
decision taken at the meeting held on 25.1.1997 and communicated by order dated
29.3.1997 was set aside.
Background
facts in a nutshell are as follows:
Appellant-Kerala
State Electricity Board (hereinafter referred to as 'KSEB') entered into a
contract with respondent no.1- Hindustan Construction Company Ltd. (in short
'HCC') for the construction of a 12.09 Km long and 6.65 M diameter concrete
power tunnel for Lower Periyar Hydro Electric Power Project on 27.02.1984. The
contract work had to be completed within 68 months from the date of the
contract; i.e. to be completed on or before 26.10.1989. The estimated PAC of
the work was Rs.14.92 crores including cost of departmental materials and the
agreed PAC was Rs. 23.59 crores. The cost of departmental materials was Rs.3.94
crores. HCC started the work on 27.2.1984 itself.
As the
work could not be completed on or before 26.10.1989 i.e. within the original
period of completion, KSEB vide order No. TC2-2117/89 dated 14.3.1991 accorded
sanction to extend the time of completion of the work upto 30.06.1992 subject
to the terms and conditions of the contract then in force.
The
schedule for the work as was fixed is given below:
Driving
Preparation and opening up faces 2 Months Driving adits 5 Months Driving Tunnel
Proper at 75m/Month for an av.1920m 26 Months Total 33 Months Lining
Preparation 2 Months Concreting Floor Portion at 300m/month for 1920m 7 Months
Concreting sides and Arch at 120 Months for 1920m 16 Months Work such as
grouting, etc.and plugging adits 4 Months Total 29 Months Final cleaning and
handing over 2 Months Probable hold ups 4 Months HCC raises certain claims by
way of compensation for the delay. The claims enumerated by HCC in their
memorandum dated 6.5.1992 and subsequently updated upto December 1992, were
under the following heads.
Issue
No.1 Compensation for infructuous over heads and fixed expenses Rs.283.80 lakhs
Issue No.II Compensation for extra incidence of equipment charges Rs.255.63 lakhs
Issue No.III Cost of Financing (Original 503.73 lakhs) later updated to
Rs.639.25 lakhs Issue No.IV Interest on delayed payments- (Original-36.04 lakhs)(Later
Updated to) Rs.56.21 lakhs Issue No.V Extra Items Rs.160.01 Lakhs Issue No.VI
Claims (Pending Claims and extra items) Rs.293.68 Lakhs Total Rs.1688.08 Lakhs
A meeting of the full time members of the Board with HCC was held on 8.7.1992
and the Chairman of KSEB agreed for the formation of a High Powered Committee
as desired by HCC.
On
02.03.1993, KSEB constituted an Ad hoc committee to look into the claims raised
by HCC. The terms of reference of the Committee were limited to the issues
raised in the Memorandum dated 6.5.1992 and in accordance with the minutes of
the discussion held by the full time members with HCC on 8.7.1992. After the
Committee started functioning, further issues such as request of the company
for interim relief of Rs.350 lakhs against their claims and issues regarding
recovery rate of cement used for concreting non-payable over breakage in the
tunnel were also referred to the Committee vide Chief Engineer's letter
No.D4-LPT1/93 dated 26.6.1993.
On
05.08.1993 Ad hoc Committee recommended interim release of funds amounting to Rs.
250 lakhs.
On
02.09.1993, the Ad-hoc Committee appointed by KSEB submitted its report on the
claim of HCC, recommending KSEB to make a payment of Rs.808.26 lakhs against
the aggregate claim of Rs.1688.08 lakhs made by the HCC. The said
recommendations of the committee were based on the following conclusions:
(1)
The various delays occurred at different stages and periods of execution of the
work, aggregating to 47 months were beyond the control of HCC or covered under
"Expected Risks" as defined under Cl.8 of the contract.
(2)
That, in granting extension of time to cover the delay of 47 months beyond
original completion time of 68 months, the KSEB not only did not impose any
penalties or attempt to get the balance work at any stage by any other agency,
at the risk and cost of the HCC, but also continued to apply contract
provisions relating to cost escalations to schedule rates during the extended
period.
(3)
The right to claim compensation exercised by HCC in their memorandum is based
on the clear provisions of Cl.18 "Force Majeure" of the contract.
Subsequently,
on 13.10.1993 Board constituted a Sub Committee to study the recommendations of
the Ad-hoc committee and to submit a note to the Board for discussion by the
full time members of the Board.
The
said Sub Committee on 10.11.1993 submitted its report recommending that the
full time members may have a discussion with the contractor on the various
matters covered in the report of the Adhoc committee for a mutually acceptable
agreement.
The
Board in its meeting held on 12.04.1994 decided to sanction an interest free
ad-hoc advance of Rs.250 lakhs which shall be adjusted against the amount
payable to HCC.
KSEB,
on 19.04.1994, sanctioned to pay an interest free ad hoc advance of Rs.250 lakhs
to M/s.HCC which was to be adjusted against the amount payable to the company
based on the recommendations of the Ad- hoc Committee.
On
30.04.1994, the Board of KSEB resolved to pay a sum of Rs.808.26 Lakhs to HCC
subject to adjustment of amounts in relation to quantities as indicated in the
report.
The
Board did not confirm the minutes dated 30.4.1994 relating to payment as per Ad
hoc committee report, on the ground that Board needs to discuss the matter further.
As the
question relating to payment to HCC was raised in Assembly, the State
Government agreed to re-examine in the public interest.
A
meeting between HCC and KSEB was held on 25.09.1994. In the said meeting,
Chairman KSEB states that an early decision will be taken in the matter.
HCC
filed OP No.762 of 1996 before the Kerala High Court, with inter-alia following
reliefs:
(a) to
implement Board's order dated 19.4.1994.
(b) to
direct Board to issue consequential orders on the basis of the internal decision
of Board at its meeting on 30.4.1994 (which had only remained in the minutes of
the Board meeting and which was subsequently modified by Annexure P-8 Page 149.
The
High Court after perusing the files which were produced pursuant to its directions,
held that no final decision has been taken in the matter and directed the Board
to take a final decision within two months.
HCC
requested the Board on 31.10.1996 to pass appropriate orders in view of the
judgment. The request was reiterated on 02.12.1996.
KSEB
moved the High Court for extension of time to comply with the direction dated
04.10.1996.
Board
in view of the directions of the High Court considered Ad-hoc committee report
and on 25.01.1997 rejected the ad-hoc committee recommendations. HCC filed a
Writ Appeal No.343 of 1997 before the High Court against the judgment dated
4.10.1996 in O.P.No.7623 of 1996. The Writ appeal was filed on 12.02.1997.
Subsequently
on 29.03.1997, Board passed formal order cancelling the order of 19.4.1994.
During
the pendency of the Writ Appeal, HCC filed an application for amendment of the
writ appeal by adding additional grounds, which was allowed.
By the
impugned judgment, the Writ Appeal was allowed, directing the Board to
implement the order of the Board dated 19.4.1994 and to issue consequential
orders on the basis of the decision of the Board dated 12.4.1994 and 30.4.1994
and to make necessary payments and the order dated 29.3.1997 of the Board was
quashed.
The
High Court held in the impugned judgment that the subsequent decision taken not
to confirm the minutes at its meeting held on 30.5.1994 cannot in any way
dilute the decision taken earlier by the Board on 19.4.1994. The High Court was
of the view that non confirmation of the minutes cannot have the effect of
wiping out the decision taken.
Accordingly,
the directions as noted above were given.
Civil
Appeal No. 1465 of 2000 is filed by the KSEB, while Civil Appeal No. 1466 of
2000 is filed by the State of Kerala.
Learned
counsel for the appellant in each case submitted that the High Court went wrong
in concluding that non confirmation of minutes did not have the effect of
wiping out the decision taken earlier. When the minutes of the meeting are not
confirmed at the subsequent meeting, it means that the decisions taken at the
earlier Board's meeting were intended not to be given effect to. The inevitable
conclusion is that the decision is not enforceable. It is further submitted
that interests is not payable and on the basis of interim orders passed, this
Court had directed payment to the respondents which has been made and nothing
further is to be paid.
In
response, learned counsel for the respondents submitted that the Board's
decision was taken unanimously and the effect of non confirmation of minutes cannot
in any way affect the decision which had already been taken.
If one
reads the minutes of 30.4.1994 which were not confirmed at the meeting held on
30.5.1994 it is clear that it was merely noted that the Board decided to
discuss the issue further. The High Court rightly took note of the fact that
nothing happened for a long time. Counter affidavit was filed stating that the
Board has not finally accepted the recommendations of the Ad hoc Committee for
payment of Rs.808.26 lakhs as it was under no legal obligation to implement the
order. The Committee was constituted by the appellant-Board. The varying
stands, taken at different points of time show that the object was to avoid
payment. The Ad hoc Committee which was appointed consisted of experts in the
fields and also Additional Secretary and Under Secretary to the Government.
Twenty one sittings were held, site visits were made and voluminous documents
were considered. After a very detailed consideration of the whole matter,
recommendations were made for making payment of Rs.808.26 lakhs as against
claim of Rs.1688.08 lakhs by the respondents. The Board constituted another
Sub-Committee consisting of two members, one of whom was the Convener and
representative of the Board in the Ad hoc Committee.
After
considering the recommendations and the report the Board decided to make
payment of Rs.250 lakhs as an interim payment. On 30.4.1994 unanimously a
decision was taken to pay Rs.808.26 lakhs as noted by the Ad hoc Committee.
In
order to test the rival submissions the only thing that needs to be considered
is the effect of non confirmation of the minutes.
In Shackleton
on the Law and Practice of Meetings, Tenth Edition, at p.86 it has been stated
as follows:
"5.
Essential Points in Drafting Minutes:
Minutes
should commence with the name of the body concerned and give the type of
meeting (e.g executive committee). They should state the date, time and place
of the meeting and the time the meeting finished (at the end of the minutes).
They should also contain a record of the names of the members present and
"in attendance," and whether present for all or part of the meeting
or a note of the list attendance sheets or other document where their names may
be found. They should also record the name of the member taking the chair.
Minutes should:
(a) be
taken by the person best placed to do so.
Independence, discretion and a good
understanding of the business of the organization are key here. It is
recommended that a member who is required to make a significant contribution to
the meeting does not also take the minutes;
(b) be
accurateif there are any especially complex or technical areas recorded in the
minutes, it is good practice to double check these with the relevant member to
ensure complete accuracy, whilst preparing the draft minutes. The Chairman of
the meeting should be given the opportunity to comment on the first draft
before they are circulated to all members;
(c) be
clear and unambiguousminutes must be easily understood; not just by the members
but by others who may need to glean a good understanding of the company's
business and decision-making e.g. auditors. Avoid too many acronyms and
technical languagerefer instead to the papers for the detail if the reader
requires this;
(d) be
well structureda good minute taker will be able to omit the recording of
discussions which strayed away from the agenda items and were not relevant. He
should also re-order the minutes to tie in with the agenda if the meeting was
not well chaired and the meeting did not strictly follow the agenda order;
(e) be
concisenot too long or too short, dependent of course on the culture and style
of the organisation and the personal preferences of the Chairman;
(f) record
the essential elements of the discussion on each item, i.e. narration which is
vital to an understanding of the proceedings.
This
will encourage members to speak up next time and also helps remind the
organization why they made a particular decision and how they came to it. The
full text of all resolutions should be recorded;
(g) avoid
comment and expressions of opinion unless an essential part of the decision-
making process;
(h) be
produced in a timely fashionminutes should ideally be produced within 48 hours
of the meeting to ensure accuracy. The minute taker should agree with the
Chairman a sensible time period for distribution of the minutes to members
after the meeting, taking into account any annual programme of meetings and the
period of time between each.
He/she
should also agree whether any attendees at the meeting are entitled to receive
copies of the minutes.
The
past tense should be used to record events at the meeting, e.g. "It was
reported that," and the past perfect tense for events prior to the
meeting, e.g. "Mr. X reported that he had completed his survey." The
following are examples of minutes with suggested improvements:
Mr. X
reported that we had secured a further contract on satisfactory terms from the
Z Co. Ltd.
The
use of the word "we" instead of "the company" is a common
mistake. In addition, the minute omits important particulars. The following is
suggested as a more useful record:
1A Mr.
X reported the signature on behalf of the company of a contact dated .with the
Z. Co. Ltd. for the purchase of a further 1,000 tonnes of coal of the same
quality as that previously supplied, at # per tonne, to be delivered to the
company's Birmingham factory, delivery as required
July/December [year]. The previous contract was at # ..per tonne. The approval
of the contract was ratified.
From a
directors' meeting:
2
Resolved that transfers of 1,000 Ordinary shares produced be approved and
passed.
The
minute should read:
2A It
was resolved that transfers nos ..to inclusive, produced to the meeting,
details of transferor and transferee below, relating to 1,000 ordinary shares
in the company, be and they are hereby approved for registration and that the
common seal of the company be affixed to certificates nos. to ..relating
thereto.
From
the meeting of a charity:
3 Mr
Jones said that before we move on to normal business there is a petition which
is being presented by the St. Albans
branch for the relief of VAT on charities. There are petition forms here
tonight and we hope that if possible you will all sign before you leave.
An
improved version:
3A The
treasurer drew attention to a petition which was being presented by the St
Albans branch for the relief of VAT on charities and invited members to sign it
at the conclusion of the meeting.
From
the minutes of a management meeting:
4
Radios, cabs, yard and general housekeeping were extremely poor. GENERAL
COMMENT: "A DISGRACE"! This might be better written as:
4A The
attendees felt that the standard of housekeeping, particularly in respect of
the radios, cabs and yard, was extremely poor and indeed disgracefuland it was
agreed that (action to be taken, by whom and in what timescale.) Within a
single paragraph it may not be necessary to introduce every sentence with words
which imply reported speech. For example, the minutes of a meeting of the
council of an association could (quite correctly) read as follows:
5 The
chairman expressed disappointment at the figures for 1996. She stressed the
need for urgent action, to avoid exhaustion of the reserves. She said that,
with additional expenditure on the awards, pressure on resources would be
acute. She pointed out that part of the problem resulted from the decision of
previous councils not to increase subscription rates.
This
could be better reported as follows:
5A The
chairman expressed disappointment at the figures for 1996. With additional
expenditure on the awards, and because previous councils had decided not to
increase subscription rates, urgent action was necessary to avoid exhaustion of
the reserves.
The
names of the proposers and seconders of motions are usually shown, but there is
no need to record details of voting. Motions which are not seconded need not be
recorded although it can be useful in understanding the collective will of
members.
6.
CONFIRMATION OF THE MINUTES Decisions once arrived at do not need confirmation:
At a
vestry meeting it was the usual procedure to read over at the next meeting the
resolutions of the preceding one. At the second of two meetings there was
considerable diversity of opinion as to the votes admitted at the first
meeting, but judgment was to the effect that there was no necessity for the
confirmation by the second vestry of what was legally done at the first, if the
first was a legal vestry meeting the election thereat was legal.
However,
confirmation of the minutes as an accurate record of the decisions made at the
previous meeting is usually obtained by submitting them to the chairman of the
next meeting for signature. If they have not been previously circulated he will
ask the secretary to read them, and, if the meeting confirms (usually on a show
of hands) that they are a correct record, he will sign them. If they have
previously been circulated, he will sign them without their being read out if
the meeting so agrees.
The
chairman who signs the minutes at the next meeting need not necessarily have
been the chairman of the previous meeting or indeed even present at the meeting
of which the minutes are a record. His action in signing them is merely to
record that they are a correct record of the business transacted.
There
may however be occasions where the Chairman although having no reason to
question the accuracy of the record, refuses to sign the minutes. In such cases
a record should be made in the minutes to the effect that the minutes of the
previous meeting were correct.
If
there is a considerable interval between meetings, the chairman can sign the
minutes as soon as they have been prepared: this power is useful too when the
minutes are needed to confirm to third parties that a particular decision has
been made.
In Chetkar
Jha v. Viswanath Prasad Verma and Ors. (1971 (1) SCR 586) it was noted inter alia
as follows:
"The
question then is whether the minutes, as drafted and placed before the meeting
on July 3, 1963, could be altered as was done on
that day. The alteration clearly was not of a minor or a clerical error but
constituted a substantial change. Minutes of a meeting are recorded to
safeguard against future disputes as to what had taken place thereat. They are
a record of the fact that a meeting was held and of the decision taken thereat.
Usually they are written up after the termination of the meeting, often from
rough notes taken by the person who is to draft them and then are placed before
the next meeting for what is generally known as "confirmation",
though they are placed for verification and not for confirmation.
Indeed,
there is no question of any confirmation at the next meeting of a decision
already taken, for, a decision once taken does not require any confirmation.
Accordingly, when minutes of a meeting are placed before the next meeting only
thing that can be done is to see whether the decision taken at the earlier
meeting has been properly recorded or not. The accuracy of the minutes and not
the validity of the decision is, therefore, before the meeting. Once a decision
is duly taken it can only be changed by a substantive resolution properly
adopted for such a change. When, therefore, a decision is taken and is minuted
and such minutes are signed by the Chairman they become prima facie evidence of
what took place at the meeting. In the case of company meetings, every meeting
of directors or managers in respect of whose proceedings minutes have been so
made is deemed to have been properly held and convened and all proceedings had
there to have been duly had and all appointments of directors, managers or
liquidators are deemed to be valid unless the contrary is proved. (cf. Halsbury's
Laws of England, 3rd Edn. vol. 6, p. 318). This is the position when minutes have
been signed by the Chairman. After such signature they cannot be altered. But
before the minutes are signed they can be altered if found to be inaccurate or
not in accord with what was actually decided. If that were not to be so, it
would result in great hardship and inconvenience, for, however, inaccurate they
are, they cannot be altered to bring them in conformity with the actual
decision. [of. Talbot, W.F., Company Meetings, (1951 ed. P.82).
This
was precisely what was done at the meeting of July 3, 1963 and no objection to
the course adopted then by the Chairman and the Syndicate could be validly
taken particularly as none present then had raised any protest against the
alteration. The decision relied on by Mr. Jha in In re Botherham Alum and
Chemical Company (1884 (25) Ch.D.p.103) is altogether on a different question
and cannot be of any assistance.
Since
the Vice-Chancellor was right in his understanding that what had been decided
at the meeting of May 7, 1963 was not to accept the Commission's recommendation
and since such refusal to accept meant under Section 26(4) that the matter
should be sent back to the Commission for recommendation, his action in asking
the Commission to reconsider clearly fell under Section 26(4) and could not be
said to be unwarranted as the Chancellor ruled. Since that was actually the
decision of the Syndicate, the Vice-Chancellor was bound to follow it up by
writing to the Commission to reconsider its recommendation. It is somewhat
difficult to appreciate the Chancellor's observation that that action was
unwarranted as it was without the Syndicate's sanction.
Once
the Syndicate had taken the decision of not accepting the recommendation, it
was obligatory under s. 26(4) to refer back the matter to the Commission. The
action taken by the Vice-Chancellor was consequential and required no further
sanction of the Syndicate.
Equally
unsustainable was the view of the Chancellor that the alteration in the minutes
on July 3, 1963 constituted a revision or a recission
of the earlier decision or that such revision or recission could not be made
before the expiry of six months as provided by the rule passed by the Syndicate
in 1952. In our view, the revised advertisement, the remission of the matter to
the Commission, the recommendation of respondent 1 by the Commission and the
proceedings of the Syndicate's meeting of July 3, 1963 including the revision
of the draft minutes were all in accordance with the provisions of the Act and
the University Statutes and therefore the Chancellor had no jurisdiction under
Section 9(4) of the Act to annul the decision of the Syndicate or the
proceedings of the meeting of July 3, 1963".
Above
being the position, the High Court's view that the decision taken on 30.4.1994
has to be given effect to cannot be faulted. As rightly submitted by learned
counsel for the respondents non confirmation of minutes does not have any
effect on the decision taken at the earlier meeting. The position has been
illuminatingly stated in Chetkar Jha's case (supra).
Pursuant
to the orders passed by this Court, Rs.500 lakhs have been paid to the
respondents and Rs.300 lakhs have been deposited pursuant to the order dated
2.5.2006.
The
amount has been deposited with the Registry of this Court to be invested in
Fixed Deposit. Let this amount be released to the respondents with interest
accrued thereon. The respondents shall be entitled to interest @7.5% from the
date of Division Bench's judgment i.e. 15.12.1998 after adjustment of the
amounts paid and the interest elements so far as relatable to the payment. The
balance amount shall be paid within a period of three months from today.
The
appeals are dismissed with the aforesaid modifications. There will be no order
as to costs.
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