Petition to Correct PPA Date Barred by Limitation, Acquiescence & Order II Rule 2 CPC: CERC - 2025-07-16

CERC Dismisses DIL's Plea to Correct PPA Date, Cites Limitation and Procedural Bars

New Delhi – The Central Electricity Regulatory Commission (CERC), in a significant order, has dismissed a petition filed by Dhariwal Infrastructure Limited (DIL) seeking to correct an alleged typographical error in its Power Purchase Agreement (PPA) with Tamil Nadu Generation & Distribution Corporation Limited (TANGEDCO). The Commission held the petition to be non-maintainable, citing it was barred by limitation, the principles of waiver and acquiescence, and procedural rules under the Code of Civil Procedure, 1908.

The bench, comprising Chairperson Jishnu Barua and Members Ramesh Babu V. and Harish Dudani, concluded that DIL had slept on its rights for nearly a decade before raising the issue.

The Core of the Dispute

The case, Petition No. 382/MP/2023 , revolved around a discrepancy in a PPA signed in 2013. While Article 4 of the PPA specified the Scheduled Delivery Date (SDD) as 1st June 2014 , Schedule 8, which outlined the yearly tariff, mentioned the commencement date of the first contract year as 1st October 2013 .

DIL contended that this was a mutual, inadvertent typographical error that reduced its 15-year operating period and adversely affected its tariff earnings. It sought a declaration to align Schedule 8 with the SDD mentioned in Article 4 of the PPA.

Arguments from Both Sides

Petitioner's Stance (DIL): - DIL argued that the discrepancy was an obvious clerical error, as the main operative part of the contract (Article 4) should prevail over an ancillary schedule. - They claimed that the issue created a "continuing cause of action," as the incorrect tariff was applied with every billing cycle, thus bypassing the statute of limitations. - DIL maintained that this petition was distinct from a previous one (No. 14/MP/2021) where they had sought relief based on a force majeure claim, and thus, was not barred by procedural rules.

Respondent's Stance (TANGEDCO): - TANGEDCO strongly opposed the petition, arguing it was a belated attempt to unravel a settled contract. - It contended the petition was barred by the Limitation Act, 1963 , as the three-year period to seek such a declaration had long expired since the PPA's execution in 2013. - TANGEDCO argued that the petition was also barred by principles analogous to Order II Rule 2 of the CPC , as DIL had failed to include this claim in its earlier petition (No. 14/MP/2021), thereby relinquishing it. - Furthermore, TANGEDCO stated that DIL had acted upon the PPA, including Schedule 8, for years without protest, raising invoices and accepting payments based on the 1.10.2013 start date. This conduct, they argued, amounted to waiver, estoppel, and acquiescence .

Commission's Analysis and Ruling

The CERC meticulously analyzed the procedural and substantive objections raised by TANGEDCO and found them to have merit.

On Order II Rule 2 of the CPC: The Commission observed that the relief sought in the current petition was "subsumed within the larger relief" prayed for in the earlier 2021 petition. DIL could have, and should have, pleaded this ground in the alternative at that time. The CERC noted:

"Having relinquished such relief, i.e., the first contract year in Schedule 8 of the PPA ought to have commenced from 1.6.2014, which DIL could have pleaded in the alternative, while filing the earlier petition, the principles of Order II Rule 2 gets attracted, and DIL is, therefore, precluded from including the said relief in the present Petition."

On Limitation and Laches: The Commission was firm that the right to sue accrued when the PPA was executed in 2013 or, at the latest, when the first invoices were raised in 2015-16. Waiting until 2023 to file the petition was an inordinate delay. The CERC invoked the legal maxim ‘ Vigilantibus non dormientibus jura subveniunt’ (The law assists the vigilant, not those who sleep over their rights), stating:

"DIL, in the present case, has not been vigilant but has remained dormant for all these years. Thus, the reliefs claimed by DIL, apart from being barred by limitation, are hit by the principles of waiver, estoppel, and acquiescence."

Rejecting the "continuing cause of action" argument, the CERC reiterated its finding from the previous case, explaining that the continued financial impact was an "effect of an injury" and not a continuing injury itself.

Final Decision

Concluding that the petition was not maintainable on multiple grounds, the CERC disposed of it at the admission stage. The decision underscores the critical importance of timely litigation and diligence in contractual matters, reaffirming that courts and regulatory bodies will not entertain stale claims, especially when parties have acted upon the disputed terms for a prolonged period.