Delhi High Court
Ksk Mahanadi Power Company Ltd. vs Southern Power Distribution ... on 9 February, 2021
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09th February, 2021
+ W.P.(C) 1380/2021 & CM APPLN. 3897/2021
KSK MAHANADI POWER COMPANY LTD. ..... Petitioner
versus
SOUTHERN POWER DISTRIBUTION COMPANY OF
ANDHRA PRADESH LIMITED &ORS.. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Ramji Srinivasan, Senior Advocate with Mr. Anand
Ganesan, Mr. Ashwin Ramanathan, Mr. Rajshree
Chaudhary, Mr. Shivkrit Rai, Advocates
For the Respondents: Mr. Basava Prabhu S. Patil, Senior Advocate with Mr
Ardhendumauli Kumar Prasad, Mr. Nishant Kumar, Mr.
Geet Ahuja, Mr. Kushagra Raj, Mr. Ashish Madaan and
Ms. Utkarsha Sharma, Advocates for R-1 & R-2
Mr. Sidhant Kumar, Advocate for R-3
Mr. Chetan Sharma, ASG with Mr. Rajesh Gogna, CGSC,
Mr. Amit Gupta, GP, Mr. Sahaj Garg, Mr. Akshay
Gadeock, Mr. R. Venkat Prabhat and Mr. Karan Chhibber,
Advocate for R-4
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. The hearing was conducted through video conferencing.
Signature Not Verified
MAGGU
Signing Date:09.02.2021 22:44:33
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
2. Petitioner impugns notice dated 19.12.2020 (sic) issued by AP
Discoms seeking termination of the Power Purchase Agreement (PPA
for short) and further seeks a direction to respondent no. 3 to grant
consent for open access to enable the petitioner to make available the
power to AP Discoms in terms of the Power Purchase Agreement.
3. Learned Senior Counsel for the respondent objects to the
maintainability of the present petition. It is contended that the petition
has been filed by one Mr. Anand Tiwari, the Executive-Corporate
Affairs of the petitioner company. It is submitted that as the petitioner
company is undergoing Corporate Insolvency Resolution Process and
a Resolution Professional has already been appointed, there is no
authority of said Mr. Anand Tiwari to file the present petition and the
petition should have been filed by the Resolution Professional.
4. An affidavit of the Resolution Professional has been filed by
the petitioner, copy of which has been forwarded over e-mail of the
Court Master. The Resolution Professional has stated that the petition
was filed with his knowledge and with his consent by Mr. Anand
Tiwari, who was authorised to do so.
5. Further, it is contended by learned counsel for the respondent
that this court would not have the territorial jurisdiction to entertain
the petition.
6. It is contended by learned Senior Counsel for the petitioner that
the Central Electricity Regulatory Commission (CERC for short) is
Signature Not Verified
MAGGU
Signing Date:09.02.2021 22:44:33
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
situated in Delhi and the Petitioner was to approach the CERC but as
the CERC is not functional, petitioner has been constrained to
approach this court. It is further submitted that Power Purchase
Agreement was also amended with the approval of the CERC and as
such part of the cause of action has accrued in Delhi. Further, it is
submitted that the Supreme Court by its order dated 29.01.2021 in
Civil Appeal No. 226-227 of 2021 has relegated the petitioner to the
Central Commission and also directed that the Central Commission
will decide the dispute before it in accordance with law including the
question as to its jurisdiction.
7. The present petition has been filed solely on the ground that the
Central Commission is not functional, in as much as, it does not have
a Member (law). It is noticed that by order dated 20.01.2021 in
CONT. CAS. (C) 429/2020 in Civil Appeal No. 14697/2015 the
Supreme Court had opined that it would be in the interest of justice, if
the Member (law) joins at the earliest.
8. Learned ASG was requested to ascertain from the Commission
as to when the Member (law) is likely to join.
9. Learned ASG assisted by Mr. Rajesh Gogna, Standing Counsel
appearing for UOI submits that Member (law) is likely to assume
charge within the next two weeks, however, no fixed date has yet been
finalised.
10. One of the issues arising is with regard to the invocation of the
Signature Not Verified
MAGGU
Signing Date:09.02.2021 22:44:33
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
Bank Guarantee consequent to the alleged termination of the PPA.
11. On 05.02.2021, learned Senior Counsel for the respondent had
stated that though respondent had issued a letter invoking the subject
bank guarantee, but in view of the directions issued by the Supreme
Court a communication had been issued to the Bank on 30.01.2021
deferring the invocation till 05.02.2021. On 05.02.2021, respondent
had agreed to issue another letter to the Bank deferring invocation till
08.02.2021. It is an admitted position that the said position is still
continuing.
12. Learned Senior Counsel for the respondent submits that the
short term open access, which was granted to the petitioner in terms of
orders dated 28.04.2020 passed by the Appellate Tribunal as
continued by order dated 29.01.2021 of the Supreme Court in Civil
Appeal Nos. 226-227 of 2021, was continued only till 05.02.2021 and
thereafter has been discontinued. It is stated that as on date, the short
term open access is not being granted to the petitioner.
13. The Supreme Court by its order dated 29.01.2021 in Civil
Appeal No. 226-227 of 2021 has relegated the petitioner to the CERC
and also directed that the CERC would decide the dispute before it in
accordance with law including the question as to its jurisdiction. In
view of the said order of the Supreme Court, Respondents had
deferred its invocation of the Bank Guarantee.
14. Since CERC is not functional and is likely to commence its
Signature Not Verified
MAGGU
Signing Date:09.02.2021 22:44:33
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
operation within the next two weeks, it would be in the interest of
justice that the status as obtaining today be maintained by the parties
till the CERC becomes operational and the Petition of the Petitioner is
taken up for consideration.
15. Accordingly, this petition is disposed of with a direction that
parties shall maintain status quo with regard to the invocation and
encashment of the bank guarantee as obtaining today and further shall
also maintain status quo with regard to the supply of power as
obtaining today. Parties shall maintain status quo for a period of 30
days from today or till the time the petition and the application for
interim orders of the petitioner is taken up for consideration by CERC,
whichever is earlier.
16. It is clarified that thereafter, the interim protection would be
subject to orders of the CERC.
17. It is clarified that CERC shall decide the petition and the
application for interim orders of the petitioner without being
influenced by anything stated in this order.
18. It is further clarified that this Court has neither considered nor
commented upon merits of the contention of either party as also with
regard to the issue of jurisdiction of the CERC to entertain the dispute.
All rights and contentions of the parties are reserved.
19. In case CERC does not resume functioning within a period of
Signature Not Verified
MAGGU
Signing Date:09.02.2021 22:44:33
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
30 days from today, petitioner is given liberty to approach this Court
for appropriate orders.
20. Petition is disposed of in the above terms.
21. Copy of the order be uploaded on the High Court website and
be also forwarded to learned counsels through email by the Court
Master.
SANJEEV SACHDEVA, J
FEBRUARY 9, 2021
'rs'
Signature Not Verified
MAGGU
Signing Date:09.02.2021 22:44:33
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
