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2021 Supreme(Del) 256
IN THE HIGH COURT OF DELHI
SANJEEV SACHDEVA, J.
KSK Mahanadi Power Company Ltd. – Petitioner
Versus
Southern Power Distribution Company of Andhra Pradesh Limited & Others – Respondent
W.P.(C).No. 1380 of 2021 & CM. APPLN. No. 3897 of 2021
Decided On : 09-02-2021
For the Petitioner:Ramji Srinivasan, Senior Advocate, Anand Ganesan, Ashwin Ramanathan, Rajshree Chaudhary, Shivkrit Rai, Advocates.
For the Respondents:Basava Prabhu S. Patil, Senior Advocate, Ardhendumauli Kumar Prasad, Nishant Kumar, Geet Ahuja, Kushagra Raj, Ashish Madaan, Utkarsha Sharma, Sidhant Kumar, Advocates, R4, Chetan Sharma, ASG, Rajesh Gogna, CGSC, Amit Gupta, GP, Sahaj Garg, Akshay Gadeock, R. Venkat Prabhat, Karan Chhibber, Advocates.
The functional status of the Central Electricity Regulatory Commission (CERC) and its jurisdiction under the Electricity Regulation Act, 2003 were central to the court's decision.
Headnote:
Jurisdiction - Power Purchase Agreement - Central Electricity Regulatory Commission - [Jurisdiction] - [Electricity Regulation Act, 2003, Section 79(1)(f), Section 79(1)(k), Section 79(1)(g), Section 79(1)(c)] - The court discussed the jurisdictional issues related to the Central Electricity Regulatory Commission (CERC) and the Power Purchase Agreement (PPA) in light of the Electricity Regulation Act, 2003. The court emphasized the importance of the CERC's jurisdiction and its functional status in deciding the dispute. The court also highlighted the Supreme Court's order directing the CERC to decide the dispute in accordance with the law, including the question of its jurisdiction. The decision was influenced by the functional status of the CERC and the need for the parties to maintain status quo until the CERC becomes operational.
Fact of the Case:
The petitioner challenged the notice seeking termination of the Power Purchase Agreement (PPA) and sought a direction for open access. The respondent objected to the maintainability of the petition, citing the petitioner's ongoing Corporate Insolvency Resolution Process and jurisdictional issues.
Finding of the Court:
The court disposed of the petition with a direction for the parties to maintain status quo regarding the invocation and encashment of the bank guarantee and the supply of power. The interim protection was subject to the orders of the Central Electricity Regulatory Commission (CERC). The court clarified that it did not consider the merits of the parties' contentions or the issue of CERC's jurisdiction, reserving all rights and contentions of the parties.
Issues: Maintainability of the petition, jurisdictional issues related to CERC, invocation of bank guarantee, and supply of power.
Ratio Decidendi: The functional status of the CERC and the Supreme Court's order directing the CERC to decide the dispute influenced the court's decision to maintain status quo and dispose of the petition.
Final Decision: The petition was disposed of with a direction for the parties to maintain status quo, subject to the orders of the CERC. The court reserved all rights and contentions of the parties and granted the petitioner liberty to approach the court if the CERC does not resume functioning within 30 days.
JUDGMENT :
1. The hearing was conducted through video conferencing.
2. Petitioner impugns notice dated 19.12.2020 (sic) issued by AP Discoms seeking termination of the Power Purchase Agreement (PPA for short) and further seeks a direction to respondent no. 3 to grant consent for open access to enable the petitioner to make available the power to AP Discoms in terms of the Power Purchase Agreement.
3. Learned Senior Counsel for the respondent objects to the maintainability of the present petition. It is contended that the petition has been filed by one Mr. Anand Tiwari, the Executive-Corporate Affairs of the petitioner company. It is submitted that as the petitioner company is undergoing Corporate Insolvency Resolution Process and a Resolution Professional has already been appointed, there is no authority of said Mr. Anand Tiwari to file the present petition and the petition should have been filed by the Resolution Professional.
4. An affidavit of the Resolution Professional has been filed by the petitioner, copy of which has been forwarded over e-mail of the Court Master. The Resolution Professional has stated that the petition was filed with his knowledge and with his consent by Mr. Anand Tiwari, who was authorised to do so.
5. Further, it is contended by learned counsel for the respondent that this court would not have the territorial jurisdiction to entertain the petition.
6. It is contended by learned Senior Counsel for the petitioner that the Central Electricity Regulatory Commission (CERC for short) is situated in Delhi and the Petitioner was to approach the CERC but as the CERC is not functional, petitioner has been constrained to approach this court. It is further submitted that Power Purchase Agreement was also amended with the approval of the CERC and as such part of the cause of action has accrued in Delhi. Further, it is submitted that the Supreme Court by its order dated 29.01.2021 in Civil Appeal No. 226-227 of 2021 has relegated the petitioner to the Central Commission and also directed that the Central Commission will decide the dispute before it in accordance with law including the question as to its jurisdiction.
7. The present petition has been filed solely on the ground that the Central Commission is not functional, in as much as, it does not have a Member (law). It is noticed that by order dated 20.01.2021 in CONT. CAS. (C) 429/2020 in Civil Appeal No. 14697/2015 the Supreme Court had opined that it would be in the interest of justice, if the Member (law) joins at the earliest.
8. Learned ASG was requested to ascertain from the Commission as to when the Member (law) is likely to join.
9. Learned ASG assisted by Mr. Rajesh Gogna, Standing Counsel appearing for UOI submits that Member (law) is likely to assume charge within the next two weeks, however, no fixed date has yet been finalised.
10. One of the issues arising is with regard to the invocation of the Bank Guarantee consequent to the alleged termination of the PPA.
11. On 05.02.2021, learned Senior Counsel for the respondent had stated that though respondent had issued a letter invoking the subject bank guarantee, but in view of the directions issued by the Supreme Court a communication had been issued to the Bank on 30.01.2021 deferring the invocation till 05.02.2021. On 05.02.2021, respondent had agreed to issue another letter to the Bank deferring invocation till 08.02.2021. It is an admitted position that the said position is still continuing.
12. Learned Senior Counsel for the respondent submits that the short term open access, which was granted to the petitioner in terms of orders dated 28.04.2020 passed by the Appellate Tribunal as continued by order dated 29.01.2021 of the Supreme Court in Civil Appeal Nos. 226-227 of 2021, was continued only till 05.02.2021 and thereafter has been discontinued. It is stated that as on date, the short term open access is not being granted to the petitioner.
13. The Supreme Court by its order dated 29.01.2021 in Civil Appea
