JUDGMENT

PER HON’BLE SMT. SEEMA GUPTA, TECHNICAL MEMBER

1. The Appellant - Gujarat Urja Vikas Nigam Limited (“GUVNL”) in Appeal No. 138 of 2021 and the Appellant - Essar Power Limited (“Essar Power”) in Appeal No. 201 of 2023 being aggrieved by the common Order dated 27.12.2019 passed by the Gujarat Electricity Regulatory Commission (hereinafter referred to as the ‘State Commission/GERC’) passed in Petition No. 972 of 2009 have preferred respective appeals. The State Commission, in the Impugned Order, has determined the amount along with delayed payment charges recoverable by the GUVNL in pursuance to and in terms of the Supreme Court judgement dated 09.08.2016 passed in Civil Appeal No. 3455 of 2010.

2. Since the instant appeals are cross appeals involving similar issues and are arising from the common Impugned Order, both the appeals are being disposed of with this common judgment. These Appeals have chequered history and brief facts of the Appeals are as given:

3. The GUVNL (Appellant in Appeal No. 138 of 2021/Respondent No.1 in Appeal No. 201 of 2023) is a Government of Gujarat enterprise and a Company incorporated under the Companies Act, 1956. GUVNL is one of the successor companies of the erstwhile Gujarat Electricity Board (“GEB”) and has succeeded to the business of bulk purchase and supply of electricity undertaken by the GEB and accordingly, GUVNL succeeded to all the PPAs and power procurement arrangements which the erstwhile GEB had entered into with third parties including Essar Power Limited (Appellant in appeal 201 of 2023 ), as well as the right to purchase the electricity generated by the generating stations of the GEB. GUVNL supplies such electricity procured to four State Distribution Licenses in Gujarat including Dakshin Gujarat Vij Company Limited (“DGVCL”), which undertakes the distribution and retail supply of electricity to the consumers at the retail supply tariff determined from time to time.

4. The Essar Power Limited (the Appellant in Appeal No. 201 of 2023/ Respondent No. 1 in Appeal No. 138 of 2021) is a generating company, which owns, operates and maintains a Generation Station at Hazira with an installed capacity of 515 MW; Respondent No.2 is the Gujarat Electricity Regulatory Commission.

5. On 30.05.1996, Essar Power entered into a PPA with GUVNL for sale of power generated from its power plant at Hazira for a period of 20 years for a contracted capacity of 300 MW and on 29.06.1996; Essar Power entered into another PPA with Essar Steel on similar terms as that of the PPA dated 30.05.1996 entered into with GUVNL, for a contracted capacity of 215 MW. Essar Power started declaring more quantum of power to Essar Steel (more than their proportionate share of about 42%) and less than 58% to GUVNL, however GUVNL claims to have made payment for full capacity charges as well as the deemed generation incentive as per contracted capacity.

6. After the initiation of claims and counter claims by the parties against each other, and protracted discussion, Essar Power agreed to partly settle the claim of GUVNL to the extent of declaration made in favour of Essar Steel in excess of 215 MW in absolute quantum and GUVNL vide letters dated 30.10.2004 and 11.11.2004, 30.11.2004 furnished the details of the amount claimed on an ad hoc basis in respect of electricity supplied to Essar Steel in excess of 215 MW. Essar Power agreed to the adjustment worked out by GUVNL in the letter dated 11.11.2004 in absolute terms; and by letter dated 31.12.2004, GUVNL stated that the amount of Rs. 64 crores was on ad hoc basis and not as a final settlement of the issue nor of the methodology of charging of energy diverted in excess of 215 MW. Subsequently, GUVNL filed a Petition being No. 873 of 2006 before the State Commission and the State Commission by its order dated 18.02.2009 (hereinafter referred as “GERC 2009 order”) decided the claims of GUVNL against the Essar Power for diversion of power and certain other aspects by holding th