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Appeal No. 209 of 2016
Page 1 of 29
In the Appellate Tribunal for Electricity,
New Delhi
(Appellate Jurisdiction)
Appeal No. 209 of 2016
Dated: 18th May, 2018
Present:
Hon'ble Mr. I.J. Kapoor, Technical Member
Hon'ble Mr. N K Patil, Judicial Member
In the matter of :-
Himachal Pradesh State
Electricity Board Ltd. (HPSEBL)
Vidyut Bhawan,
Shimla-171 004
... Appellant
Versus
1.
Himachal Pradesh Electricity
Regulatory Commission
Keonthal Commercial Complex,
Khalini
Shimla-171 002
...Respondent No.1
2.
M/s Patikari Power Pvt. Ltd. (PPPL)
1st House, Bhumian Estate,
Nav Bahar, Bhumian Road
Chhota Shimla-171 002
...Respondent No.2
Counsel for the Appellant(s) : Mr. Anand K. Ganesan
Ms. Swapna Seshadri
Ms. Parichita Chowdhury
Ms. Neha Garg
Ms. Rhea Luthra
Counsel for the Respondent(s) : Mr. Tarun Johri
Mr. Ankur Gupta
Mr. Ankit Saini for R-2
Appeal No. 209 of 2016
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JUDGMENT
PER HON'BLE MR. I.J. KAPOOR, TECHNICAL MEMBER
1. The present Appeal is being filed by Himachal Pradesh State
Electricity Board Ltd.(hereinafter referred to as the “Appellant”)
under Section 111 of the Electricity Act, 2003 (hereinafter referred
to as the “Act”) against the order dated 13.1.2016 (“Impugned
Order”) passed by Himachal Pradesh Electricity Regulatory
Commission (hereinafter referred to as the “State Commission”)
in Petition No. 102 of 2015 wherein the State Commission has
held that the Respondent No. 2 is liable to pay Liquidated
Damages (LD) to the Appellant for a period of 12 days instead of
159 days on account of delay in commissioning of the
hydroelectric project by the Respondent No. 2.
2. The Appellant i.e. HPSEBL is a company incorporated under the
provisions of the Act. It is the generation and distribution utility in
the State of Himachal Pradesh (HP).
3. The Respondent No. 1 i.e. HPERC is the Electricity Regulatory
Commission in the State of HP discharging functions under the
provisions of the Act.
4. The Respondent No. 2 i.e. PPPL is a company incorporated under
the provisions of the Companies Act, 1956 and is a generating
company in terms of Section 2 (28) of the Act.
Appeal No. 209 of 2016
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5.
Facts of the present Appeal:
a) In response to global invitation for investment, dated 19.4.1999,
issued by Govt. of Himachal Pradesh (GoHP), a Memorandum of
Understanding (MoU) dated 21.6.2000 was executed between
GoHP and East Indian Petroleum Ltd. (EIPL) (the predecessor of
Respondent No. 2) for implementation of the 16 MW Patikari Hydro
Electric Project (“Project”) in the State of HP.
b) After grant of Techno Economic Clearance, an Implementation
Agreement (IA) dated 9.11.2001 was signed between GoHP and
EIPL. On the same date tripartite agreement was signed between
GoHP, EIPL and the Respondent No. 2, which was Special
Purpose Vehicle (SPV) to implement and execute the Project. In
terms of the IA the Scheduled Commercial Operation Date (SCOD)
of the Project was 48 months from the date of Financial Closure
(FC) of the Project and FC was to be obtained by the Respondent
No. 2 within 24 months from the signing of the IA.
c) The Appellant and the Respondent No. 2 entered into a Power
Purchase Agreement (PPA) dated 14.1.2003 (“earlier PPA”) for
sale and purchase of the electricity from the Project. The State
Commission vide order dated 5.9.2003 in a suo-motu petition held
that the earlier PPA as unsustainable, non-est and void ab-initio as
the Appellant has signed many PPAs including the earlier PPA
without the knowledge of the State Commission. Thereafter, in
terms of the orders of the State Commission, the Appellant and the
Respondent No. 2 filed a joint petition before the State
Commission for approval of the new PPA on the terms and
Appeal No. 209 of 2016
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conditions approved by the State Commission. The State
Commission vide order dated 19.4.2004 approved the
