Appeal No. 333 of 2022

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APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI

(APPELLATE JURISDICTION)

Appeal No. 333 of 2022

Dated :

07.10.2022

Present: Hon’ble Mr. Justice R. K. Gauba, Officiating Chairperson

Hon’ble Mr. Sandesh Kumar Sharma, Technical Member

In the matter of:

Tamil Nadu Generation and Distribution Corporation Limited,

10th Floor, NPKRR Maaligai,

144, Anna Salai,

Chennai- 600002

…Appellant

Versus

1.

Central Electricity Regulatory Commission

3^rd & 4^th Floor, Chanderlok Building,

36, Janpath, New Delhi – 110001.

2.

GMR Energy Trading Limited,

Building No. 302, New Shakti Bhawan,

New Udaan Bhawan Complex,

Opposite IGI Airport, Terminal – 3,

New Delhi – 110037

3.

GMR Warora Energy Limited,

Building No. 302, New Shakti Bhawan,

New Udaan Bhawan Complex,

Opposite IGI Airport, Terminal – 3,

New Delhi – 110037

… Respondents

Counsel on record for the Appellant(s) :

Ms. Anusha Nagarajan

Ms. Akanksha Bhola

Mr. Rahul Ranjan

Counsel on record for the Respondent(s) :

Mr. Hemant Singh

Mr. Buddy A. Ranganadhan

Mr. Biju Mattam

Mr. Supriya Rastogi Agarwal

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Mr. Lakshyajit Singh Bagdwal

Mr. Chetan Kumar Garg

Mr. Robin Kumar

Ms. Ankita Bafna

Mr. Harshit Singh

Mr. Lavanya Panwar

Mr. Alchi Thapliyal for R -2 & 3

J U D G M E N T

PER HON’BLE MR. SANDESH KUMAR SHARMA, TECHNICAL MEMBER

1. The Appellant herein, is a Government Company engaged in the

business of Generation and Distribution in the State of Tamil Nadu, has

challenged the order dated 04.02.2022 (“Impugned Order”) passed by the

Central Electricity Regulatory Commission (“CERC”or “Central Commission”)

in Petition No. 114/MP/2019 whereby the CERC has held that the Appellant is

liable to make payment to the Respondent no. 2 for capacity charges

irrespective of the grid constraint between November 2015 and March 2016,

along with the late payment surcharge.

2. The Appellant i.e. M/s. Tamil Nadu Generation and Distribution

Corporation Limited (in short “TANGEDCO”), wholly owned by the State

Government, is a company registered under the Companies Act, 1956 and is

the successor of the erstwhile Tamil Nadu Electricity Board, vested with the

functions of electricity generation and distribution in the state of Tamil Nadu.

3. The Respondent No. 1 is the Central Electricity Regulatory Commission

which passed the Impugned Order dated 04.02.2022.

4. The Respondent No. 2 and 3, GMR Energy Trading Limited (“GMR

Trading”), engaged in the business of trading licensee under the Act and

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GMR Warora Energy Limited (“GWEL”), owns a 2x300 MW Thermal Power

Station at Warora, respectively, are companies registered under the

Companies Act, 1956, and are part of GMR Group of companies.

5. The Appellant, on 27.11.2013, signed a Power Purchase Agreement

(‘PPA’) with GMR Trading for a period of 15 years, from 01.06.2014 to

30.09.2028, for the purchase of electricity up to the contracted capacity of

150 MW, which was to be supplied from GWEL’s Thermal Power Plant in

Maharashtra, for such an arrangement GMR Trading and GWEL entered into

an Agreement dated 01.03.2013 for Sale of Power, by way of which, the

GWEL agreed to sell 150 MW of power from its Thermal Power Plant to the

GMR Trading for the purpose of further sale to the Appellant.

6. During the period of the contract, in the months of November, 2015 and

December, 2015, the availability of power was affected due to certain grid

disturbance/ grid constraints, resulting into present dispute between the

TANGEDCO and GMR Trading regarding the cumulative availability of power

during that period.

7. The Appellant has claimed that no party under the contract has any

liability in case of disruption in supply due to grid constraint, whatsoever, on

the contrary GMR Trading has submitted that the Appellant is liable to pay

tariff as per t