The Supreme Court on Thursday refused to halt the Bombay High Court's decision that allowed Mukesh Ambani-led RIL to amend its plea on a gas supply deal with NTPC at a committed price citing government policy.
"These days the courts are very liberal in allowing amendments. You will get an opportunity," the bench headed by Chief Justice K G Balakrishnan said, while reassuring the PSU that it would get its chance to file a reply.
NTPC had moved the apex court challenging the high court's decision allowing RIL to amend its petition to the effect that the government's policy on pricing of gas would frustrate its contract to supply gas at a price of $2.34 per mmBtu it had quoted in a 2004 global tender.
The decision comes ahead of the commencement of final hearing on October 20 on the dispute between the Ambani brothers over gas supply and price. The court would also hear the government's petition on the matter.
RIL is citing a 2007 decision of the empowered Group of Ministers that approved $4.20 per mmBtu as price for gas from RIL's KG-D6 fields as a stumbling block for selling gas at the price it bid in 2004.
Anil Ambani-led RNRL is fighting RIL on a similar count, arguing that it cannot renege on the agreement citing government's stand on pricing.
NTPC had taken RIL to court after they failed to conclude the contract.
The bench, while disposing NTPC's petition, also directed the high court to decide the matter expeditiously.
Solicitor General Gopal Subramanium said that NTPC apprehended that the trial would proceed without the contents of the written statement being rebutted.
He submitted that RIL had amended its written statement in the high court by taking advantage of an affidavit filed by the Petroleum Ministry in a separate case between the Ambani brothers (RIL vs RNRL).
The government affidavit, which was filed on January 13, this year and later withdrawn, had stated that price of KG basin gas was fixed at $4.20 mmBtu by an empowered group of ministers (EGoM).
He, however, clarified that the government was not concerned with the gas dispute between the Ambani brothers.
Subramanium submitted that the high court order should be set aside as the proviso to Order-VI Rule-17 of CPC does not permit amendment to the pleadings after commencement of trial in the suit unless the court came to conclusion that in spite of due diligence the party seeking amendment could not have raised the matter before the commencement of the trial.
He said that while the issues in NTPC's suit against RIL were framed on October 6, 2008, and the trial had already started, the Mukesh Ambani firm had filed its original written statement on October 31, 2007, before the high court.
But the high court's order allowing RIL to amend its written statement in the case on July 30, 2009 after commencement of trial was illegal, NTPC said.
Besides, the Solicitor General said that EGoM's decision of September 12, 2007 formulating the gas utilisation policy and fixing of natural gas at $4.20 mmBtu was known to RIL on October 10, 2007 itself, much before it filed its original written statement.
Observing that the two courts below have allowed amendment to the written statement, the apex court asked NTPC that "what is the prejudice that would be caused because of this amendment."
Its suit in the high court has gone off the track due to this amendment, replied Subramanium.
"It is submitted that the amendment in effect seeks to portray the Central government as the chief architect of the inability of RIL in being able to perform Gas Sale and Purchase Agreement and having impliedly taken away the foundational basis of a very carefully structured bid and suggests that on this basis that the GSPA is one which is incapable of performance.
"This, it is submitted, is an entirely new case and ought not to have been permitted to be urged for the first time by way of a written statement," NTPC had stated in its SLP.
Opposing NTPC's plea, RIL senior counsel Harish Salve said that under Rule 161 of the Bombay High Court original side rules, the high court can allow such amendments subsequently.
