Parties Present:

Shri M.G. Ramachandran, Senior Advocate, LKPL

Shri Saurabh Gupta, Advocate, LKPL

Shri Puneet Yadav, Advocate, LKPL

Shri Akshansh Gupta, Advocate, LKPL

Shri L.P. Tiwari, LKPL

Shri Anand K. Ganesan, Advocate, Andhra & Telangana Discoms

Shri Harsha, Advocate, Andhra & Telangana Discoms

Ms. Aishwarya, Advocate, Andhra & Telangana Discoms

ORDER

The Petitioner, Lanco Kondapalli Power Limited (in short ‘LKPL’), has filed the instant Petition under Section 79(1)(f) of the Electricity Act, 2003 (‘the Act’), seeking the following reliefs:

(a) Allow the Present Petition and direct that the pleadings in OP No. 42 of 2009 (renumbered as OP No. 28/2015) as filed before the Andhra Pradesh Electricity Regulatory Commission be taken on record by this Hon’ble Commission;

(b) Declare/hold that the Petitioner is entitled for reimbursement of Finance and Procurement Costs as per Article 3.3 of Power Purchase Agreement dated 31.3.1997 and consequently direct the respondents 1 to 6 to reimburse an amount of Rs. 10.79 Crores as claimed vide Bill Nos. 01 to 15 and supplementary bill no. FPA/01 billed for the period from 22.06.2000 to 10.08.2001;

(c) Declare/hold that the Petitioner is entitled for interest of Rs. 10,90,92,073/- from 10.08.2001 till the date of filing of this Petition on account of delay in reimbursement of Finance and Procurement Costs in terms of Article 3.3 of Power Purchase Agreement dated 31.3.1997 and consequently direct the respondents 1 to 6 pay the same;

(d) Declare/hold that the Petitioner is entitled for further interest from the original date of this Petition till realization; and

(e) Pass any other or further order/reliefs which this Commission may deem fit and proper in light of justice, equity and good conscience.

Background of the case

2. The Petitioner, LKPL, is a company incorporated under the Companies Act, 1956, inter alia, engaged in the generation and sale of electricity. It has set up a 368.144 MW Combined Cycle Power Project located in the Kondapalli Industrial Development Area, Krishna District, Andhra Pradesh. It is a short-gestation power plant completed on time out of the six projects awarded through Tariff-Based International Competitive Bidding by the Government of Andhra Pradesh (GoAP) / Andhra Pradesh State Electricity Board (APSEB). LKPL executed a Power Purchase Agreement (PPA) with the erstwhile APSEB (presently APTRANSCO) on 31.3.1997 for the purchase of all the available capacity, in accordance with the terms and conditions of the said PPA. LKPL implemented the project. The first generating unit was tested from 22.6.2000 to 27.6.2000, and its Commercial Operation Date (COD) of the first unit was declared on 26.7.2000. Similarly, the COD of the second generating unit was declared on 24.9.2000, after testing. Subsequently, LKPL demonstrated its total capacity of the project as per the provisions of the PPA on 25.10.2000, in the presence of APTRANSCO and NTPC officials (deputed by APTRANSCO) and the COD of the project was declared on 25.10.2000. Thereafter, vide G.O.Ms. No. 59 dated 7.6.2005, Respondent No. 1 Andhra Pradesh Power Corporation Committee (APPCC), was constituted to advise and guide the other four distribution companies in the discharge of their functions.

3. As disputes arose between the parties due to the failure of the Respondent AP Discoms to make the payments to LKPL for finance and procurement of Naphtha payable upto September 2001, and the efforts to settle the same amicably, was not responded to by the Respondents, LKPL issued notice on 26.3.2004, nominating Justice B.P. Jeevan Reddy, as its arbitrator and requested the Respondents to nominate their arbitrator. As the Respondents failed to settle the disputes through negotiation or arbitration, LKPL filed an application before the Hon’ble Andhra Pradesh High Court (AA No. 31/2004) for the appointment of an arbitrator. However, the Hon’ble High Court disposed of the said application on 18.3.2009, granting liberty to LKPL to