Rajasthan Electricity Regulatory Commission
Petition No. RERC-474/14
In the matter of petition filed by M/s Kalani Industries Pvt. Ltd. under Section
86(I)(f) of the Electricity Act, 2003 for adjudication of dispute with Discoms and
RDPPC.
Coram:
Shri Vishvanath Hiremath, Chairman
Shri Vinod Pandya,
Member
Shri Raghuvendra Singh, Member
Petitioner :
M/s Kalani Industries Pvt. Ltd., Jaisalmer
Respondents:
1.
2.
3.
4.
Date of hearings:
Jaipur Vidyut Vitran Nigam Ltd. (JVVNL)
Ajmer Vidyut Vitran Nigam Ltd. (AVVNL)
Jodhpur Vidyut Vitran Nigam Ltd. (JdVVNL)
Raj. Discoms Power Procurement Centre (RDPPC)
30.10.2014, 2.12.2014, 30.12.2014, 10.3.2015, 19.03.2015
Present :
1. Sh. P. N. Bhandari, Advocate for Petitioner
2. Sh. Bipin Gupta, Advocate for Discoms
3. Sh. S. T. Husain, Executive Engineer, JVVNL
Order Date:
01.05.2015
ORDER
1. M/s Kalani Industries Pvt. Ltd. (herein after referred to as “Petitioner”) has filed
this petition on dated 16.10.2014 u/s 86(1)(f) of Electricity Act, 2003 for
adjudication of dispute with Discoms and RDPPC.
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2. Notices were issued to Respondents on 31.10.2014 for filing the reply to the
petition. The same was filed on 30.12.2014.
3. The case was heard on 19.03.2015. Sh. P. N. Bhandari, Counsel appeared for
Petitioner. Sh. Bipin Gupta, Advocate appeared for Discoms.
4. The Counsel of the Petitioner in his submissions and during hearing mainly
contended that:
(i) The Petitioner has a wind energy plant of 2.76 MW in Jaisalmer District and
had entered into a Power Purchase Agreement (PPA) with Rajasthan Rajya
Vidyut Prasaran Nigam Ltd (RVPN)/ Jodhpur Discom on 14.03.2001 in the
light of the Govt. of Rajasthan’s policy for wind energy.
(ii) In the meanwhile, the Electricity Act, 2003 was enacted and the functions
of purchase of electricity, etc. shifted from RVPN to Discoms. Accordingly,
the bill was started to be raised by the Petitioner in the name of Discoms
and the payment was also started to be made by the Discoms instead of
RVPN.
(iii) The Petitioner has raised the bills from July-11 to March-12 to Discoms at the
rate of Rs. 5.1823/unit as specified in Tariff Regulations, 2009. RDPPC acting
on behalf of Discoms, compelled the Petitioner to accept the payment at
the lower rate of Rs. 4.22/unit as some litigation regarding tariff was
pending in the APTEL. The Petitioner had no option but to accept whatever
payment was being made by Discoms.
(iv) The Petitioner continued to raise the bills at the rate prescribed by the
RERC Regulations but the Discoms compelled the Petitioner to accept the
payment at the lower rate of Rs. 4.22/ unit. This stand of the Discoms was
totally arbitrary and illegal as there was no stay against the Commission’s
order dated 10.12.2012. However the balance amount @ Rs. 0.96 (Rs. 5.18Rs 4.22) was received by the Petitioner on dated 30.09.2013.
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(v) Petitioner has repeatedly made requests to the concerned authorities and
indicated the shortfall in the monthly payments along with the delay in
each case and made a total claim of Rs. 35,60,495/- toward interest of
delayed payments which was later revised to Rs. 33,61,641/-.
(vi) In PTC India Ltd. Vs CERC AIR 2010 SC 1338, at para 59 the Hon’ble
Supreme Court has observed thus“A regulation under section 178, as a part of regulatory framework,
intervenes and even overrides the existing contracts between the
regulated entities in as much as it casts a statutory obligation on the
regulated entities to align their existing and future contracts with the said
regulations”
(vii) In the light of the above, if any provision in the PPA of 2001 is not in
harmony with the Electricity Act and Regulation,s it will have to be ignored.
Under Section 86(1)(f), a generator has the right to approach the Hon’ble
Commission for adjudication of dispute with the licensee. Notwithstanding
Article 7.1 of the PPA of 2001 regarding settlement of dispute, the right of a
generator to approach the Commission for adjudication of dispute cannot
be denied or diluted by any PPA or agreement. Consequently, the dispute
resolution mechanism under Article 7.1 of the PPA which is not in harmony
with the above provision of the Electricity Act will have to be appropriately
substituted and modified.
(viii) There is no dispute about the basic features of the PPA. The per unit rate is
not disputed. The rate for late payments has also been specifically laid
down in article 5.1 (b) of the PPA. The delay in each payment is also not
debatable.
(ix) There is hardly any scope for raising any hyper technical objections in the
matter. In support of above arguments reliance may be made on
judgments of the Hon’ble Appellate Tribunal in the case of M/s.
Konaseema Gas Power Limited Vs. Andhra Pradesh Electricity Regulatory
Commission (Appeal No. 117 of 2011 & Appeal No. 100 of 2010 dt.
17.04.2013).
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RERC/474/14
(x) In light of above submission the Petitioner prayed to:
(a) allow interest as per the statements enclosed with petition.
(b) provide any other relief in favour of the Petitioner, which the Hon’ble
Commission deems fit and proper in this case.
5. Sh. Bipin Gupta, Advocate appeared for Discoms and during hearing and in
submissions mainly contended that:
(i) The PPA was executed between Petitioner and Discoms prior to coming
into force of the Electricity Act, 2003. As per Clause 3.1 of the PPA, after 10
years, the tariff was to be mutually settled between the Generator and the
Licensee.
(ii) During 10 years operational period, there was no dispute regarding tariff.
During that intervening period Electricity Act, 2003 had come into force
and according to Electricity Act the tariff was supposed to be decided by
Electricity Regulatory Commission.
(iii) In the aforesaid PPA, after 10 years, there was no tariff for the generators,
therefore, the Directional Committee of the Discoms decided to give
generic tariff allowed by the Commission for that year.
(iv) Further, against the tariff decided by the Directional Committee of the
Discoms, M/s Kalpataru Power transmission Ltd., a Generator filed a petition
(298/2012) before this Commission and Commission vide its order dated
29.03.2012 held that the tariff for Biomass and Wind Power Plants up to FY
2013-14 had already been specified under regulation 82(1)(a) of Tariff
Regulations, 2009 and the Discom is supposed to pay according to the said
tariff.
(v) Subsequently, Discoms filed an appeal against the Commission’s order dt.
29.03.2012 before Hon’ble APTEL. It was also decided by Discoms that for
the intervening period, the payment would be made to the generators
according to the Orders of the Commission dt. 29.03.2012 subject to the
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decision of the APTEL in the appeal filed in the matter of M/s Kalpataru
Power transmission Ltd.
(vi) Petitioner also filed a petition No. 326/12 before this Commission for
payment according to the tariff specified by the Commission and did not
claim any interest at that point of time. The petition was decided in favour
of Petitioner on 10.12.12 and thereafter the payments were made by the
Discoms. Thus now no claim can be made for interest by the Generator as
it is hit by Order 2 Rule 2 of CPC.
(vii) APTEL vide its order dated 09.10.2012 decided the appeal (appeal no.
114/12) filed in the matter of M/s Kalpataru Power transmission Ltd. and
upheld the decision of the Commission. However, the matter is pending in
the Hon’ble Supreme Court in Civil Appeal D no. 229 of 2013, wherein the
appeal has been admitted and notices have been issued.
(viii) The core issue that whether the generators are entitled for tariff at the
rate as specified in Tariff Regulation 2009 or the generators, after expiry of
period of 10 years, would be entitled for any other tariff in the nature of
generic tariff of that year is still pending for the decision by the Hon’ble
Apex Court.
(ix) However, the Discoms have paid the higher tariff as ordered by the
Hon’ble Commission, the interest is not payable as the dispute of final tariff
to be paid to a generator after expiry of 10 years, as per the PPA Clause
3.1, is still pending for adjudication before the Hon’ble Apex Court.
(x) Therefore, in light of the above factual aspects, it is submitted that the
Petitioner is not entitled for any sort of interest as it is admitted position that
till the dispute of M/s Kalptaru is finally decided, the payments of the bill
having been made by the Discom, under protest to follow the Order of this
Hon’ble Commission, and to that effect, there is admission of the Petitioner
to abide by the final decision and there arises no question of any interest as
being claimed by the Petitioner under the PPA Clause 5.1.
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(xi) Financial condition of Discoms is very stringent and, therefore, Discoms are
not in a position to pay interest as claimed by the Petitioner. Prayer of the
Petitioner is not admitted and is denied for the reasons mentioned
hereinabove.
Commission’s view and decision :
6. It is observed from the records that, Petitioner has signed a PPA dated
14.3.2001. As per clause 3.1(ii) of the said PPA, Petitioner was entitled to the
tariff of Rs.3.03 per unit applicable for the year 2000-01 which was to be
escalated @5% every year for the first 10 years. Thereafter the rate of increase
shall be mutually settled between RVPN and the Petitioner.
7. Further as per clause 5.1(b) of the PPA late payment shall carry, for the period
of delay, interest at an annual rate equal to the Bank rate plus eight percent
(8%) but in no event more than the maximum rate of interest allowable under
the applicable law.
8. No dispute arose between the parties on the implementation of the PPA for
the first (10) years. Dispute arose between the parties on the tariff payable to
the Petitioner after the first (10) years period.
9. According to the Petitioner, from 11th year, it was entitled to the tariff as
specified in the Regulation 82(1)(c) of RERC (Terms & Conditions for
determination of Tariff) Regulations, 2009 which was 5.1823, 5.4414 and 5.7135
for the financial year 2011-12, 2012-13 and 2013-14 respectively. However, as
per the Respondents, the tariff payable after (10) years had to be decided by
the Commission as per the Regulations and during the pendency of
determination of the tariff, the tariff determined by the RERC for the
corresponding years for the similar plants is payable.
10. A similar question arose before the Commission in petition No.298 of 2012
filed by M/s. Kalptaru Power Transmission Co. Pvt. Ltd. This Commission after
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considering the terms of the PPA and Tariff Regulations, 2009 held that the
Companies which have signed the PPAs shall be entitled to the tariff
determined by the Commission as per the GoR Policy, 1999. In other words
the Commission held that the Petitioner therein is entitled for the tariff for FY
2011-12,
2012-13
and
2013-14
at
Rs.5.1855/unit,
Rs.5.4448/unit
and
Rs.5.7171/unit respectively.
11. The Petitioner in the present case had also filed a petition before this
Commission in the petition No.326/12 seeking a direction to the Discoms to
pay the tariff as per Tariff Regulations, 2009 and also as held in the case of
M/s.Kalptaru Transmission Pvt. Ltd, this Commission after hearing had held as
follows :
“23.
Sr.
No
1
2
3
4
5
In light of the above, we direct that tariff payable to the petitioners, i.e., for RREC,
M/s Kalani and RSMML after a period of 10 years and up to FY-14, would be as
specified in the table below regulation 82(1) (a) of the RERC (Terms and Conditions
for determination of Tariff) Regulations, 2009 as below:
Wind
Farm Location
2008-09
and dt. of completion of 10
year PPA
2.00 MW Wind Farm at 4.4795
Amarsagar, Jaisalmer set up by
RREC (10 year PPA completed
on 11.3.2009)
2.25 MW Wind Farm at
Devgarh, Pratapgarh set up
by RREC (10
year PPA
completed on 13.12.2009)
2.10 MW Wind Farm at Phalodi
Jodhpur set up by RREC (10 year
PPA completed on 9.11.2010)
Wind power plant at Badabagh,
Jaisalmer set up by M/s
Kalani(10 year PPA completed
on 14.3.2011)
Wind power plant at Badabagh,
Jaisalmer set up by RSMML (10
year
PPA
completed
on
28.8.2011)
2009-10
2010-11
2011-12
2012-13
2013-14
4.7034
4.9386
5.1855
5.4448
5.7171
-
4.7034
4.9386
5.1855
5.4448
5.7171
-
-
4.9356
5.1823
5.4414
5.7135
-
-
-
5.1823
5.4414
5.7135
-
-
-
5.1823
5.4414
5.7135
24. The petition is disposed of accordingly.”
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12. No appeal appears to have been filed against this order and the order
therefore has become final.
13. In the present case the Petitioner has claimed interest based on the terms of
the PPA for the non-payment of the charges for the electricity supplied as per
the tariff it was entitled to as per the Regulations and the order of this
Commission in their case dt.10.12.2012.
14. It is contended on behalf of the Petitioner that the stand taken by the
Respondents in not paying the tariff as per the Regulations is untenable as this
Commission has already held that the tariff paid by Discom is not according
to the Regulations. Therefore, amount not paid upto the date of order and
thereafter interest is payable which has been quantified as Rs.35,60,495/-, &
subsequently as Rs.33,61,641/-.
15. Per contra, it is contended on behalf of the Respondents that no interest is
payable as the dispute on final tariff to be paid to the Petitioner is still pending
adjudication before the Hon’ble Apex Court. Further it is stated that any
payment made as per the orders of this Commission shall be treated to be
paid under protest during pendency before the Hon’ble Supreme Court. It is
further submitted that there is an admission by the Petitioner to the effect to
abide by the final decision in M/s.Kalpataru case by the Hon’ble Supreme
Court. Further it is contended that Petitioner in the petition No. 326/12 filed
before this Commission for determination of tariff had not claimed any
interest and hence no claim for interest can be made now in view of Order II
Rule 2 of Civil Procedure Code.
16. In our considered view mere pendency of an appeal without their being
any stay order will not exonerate the Respondents from their liability to pay
the tariff as specified by the regulations and order of this Commission. The
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Petitioner had a right to receive a tariff as ordered by this Commission in its
petition from the date of the order and Petitioner is entitled to interest on the
delayed payment from that date if amount is not paid. Admittedly, the
Respondents did not make payment to the Petitioner even after this
Commission made an order clarifying what is the tariff payable. Once this
Commission decides what is the tariff payable, thereafter there is no ground
for the Respondents to deny the payment which is legitimately due and
interest thereon. Once they have no right to withhold the payment, the terms
of the PPA come into operation and entitle the Petitioner for the delayed
payment interest as provided in the PPA. Therefore we are of the view that
the Petitioner is entitled to claim interest as per the terms of the PPA for the
delay caused after the order of this Commission dated 10.12.2012.
17. Now coming to payment of interest for the period prior to the order of the
Commission, we have to accept the submissions of Respondents that no
interest is payable in view of bar in Order II Rule 2 of CPC. Order II Rule 2 of
CPC reads as under:
“2. Suit to include the whole claim- (1) Every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of the cause of action;
but a plaintiff may relinquish any portion of his claim in order to bring the suit
within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of,
or intentionally relinquishes, any portion of his claim, he shall not afterwards sue
in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one
relief in respect of the same cause of action may sue for all or any of such
reliefs; but if he omits, except with the leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted.”
18. Order II Rule 2 of CPC, thus specifically states that all the claims arising out of
the same course of action shall be included in the suit and otherwise it is
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considered as given up and cannot be claimed in subsequent suit. It is
observed from the records of petition No 326/12 that Petitioner claimed
payment for the electricity supplied based on tariff specified in the
Regulations but did not ask for the same with interest though PPA provided for
it.
19. In some of the cases that have come up recently before the Commission on
delayed payment, the Respondents have made a submission that they will
consider making the payment on priority if the claimant therein agrees to
interest at 10%. In our view since interest is payable in this case also after the
order of this Commission dated 10.12.2012 till actual payment is made, the
Respondents may communicate the same to the Petitioner within (4) four
weeks today and consider paying the said interest as per the decision they
have taken in similar cases.
20. This petition stands disposed of in the above terms.
(Raghuvendra Singh)
Member(T)
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(Vinod Pandya)
Member(F)
(Vishvanath Hiremath)
Chairman
RERC/474/14