Table of Content
1. factual background of the petitioner and respondent (Para 2 , 3 , 4 , 5)
2. court's review of maintainability under specific provisions (Para 7 , 8 , 12 , 13 , 14)
3. arguments presented by the respondent and petitioner (Para 10 , 11)
4. analysis of cerc's adjudicatory vs. referral powers (Para 19 , 20 , 21)
5. final conclusion on the case status and jurisdiction (Para 115 , 116)

The petitioner, an energy “generating company” within the meaning of Section 2(28) of the Electricity Act , 2003 (hereinafter “ Electricity Act ”), has filed the instant petition under Section 9 of the Arbitration and Conciliation Act , 1996 (hereinafter “Arbitration Act”) praying for an order restraining/injuncting the respondent, a “licensee” within the meaning of Section 2(39) of the Electricity Act , from unilaterally deducting amounts from the petitioner’s monthly invoices.

I. FACTUAL MATRIX

2. The petitioner operates a 300 MW wind power project in Kutch, Gujarat. The respondent, Solar Energy Corporation of India (‘SECI’), is a Renewable Energy Implementing Agency (‘REIA’) designated by the Ministry of New and Renewable Energy (‘MNRE’).

3. The petitioner was selected by the respondent through a Request for Selection (‘RFS’) process and had executed a Power Purchase Agreement (‘PPA’) dated 23.05.2018 for the supply of 300 MW of power for 25 years from the Scheduled Commissioning Date i.e., 24.11.2019.

4. On 02.05.2025, SECI issued a notice to the petitioner alleging non-fulfilment of the minimum energy requirement of 946.08 MUs for the Financial Year 2024-25 and demanded, as compensation under Article 4.4.1 of the PPA, 75% of the cost of shortfall in energy terms, failing which, it claimed, the applicable amount would be deducted from the next month’s energy invoice of the petitioner.

5. The petitioner states that the shortfall of generation to 632 MUs during FY 2024-25 occurred solely on account of force majeure events, which under Article 4.4.3 of the PPA, absolve the petitioner from liability of compensation. Apprehending coercive recovery before the constitution of the arbitral tribunal, the petitioner has approached this Court under Section 9 of the Arbitration Act seeking urgent interim protection by way of restraint against the operation of the impugned letter and any consequential deductions.

6. Upon issuance of notice, the respondent filed a comprehensive reply, raising several objections. The primary objection of the respondent pertains to the maintainability of the instant petition in light of Section 79(1)(f) of the Electricity Act .

7. For examining the maintainability of the present petition, this Court has analysed the referral and adjudicatory powers of the CERC. This Court has found that the instant petition is not maintainable on the ground that CERC has the exclusive power of referring disputes involving generating companies or transmission licensee for arbitration. The referral power of the CERC under Section 79(1)(f) of the Electricity Act , has been found to prevail over Section 11 and 8 of the Arbitration Act.

8. For the purposes of providing a comprehensive analysis, the possibility of Section 9 4(2) of the Electricity Act acting as a statutory substitute to Section 9 of the Arbitration Act has also been explored. To provide guidance on considerations which ought to govern CERC’s referral for arbitration, a claimant’s right to seek a referral and the appropriateness of referring disputes for arbitration have also been examined.

9. Before delving into a substantive analysis of the above-narrated issues, the submissions made by the parties shall be detailed.

II. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT

10. Mr. M.G. Ramachandran, learned senior counsel appearing for the respondent contends that disputes concerning tariffs must be adjudicated by the appropriate commission, in this case, the Central Electricity Regulatory Commission (‘CERC’). He further submits that only the CERC can refer such disputes to arbitrat

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