Rajpur Hydro Power Private ... vs M/S Gangdari Hydro Power Private ...
2021 Latest Caselaw 456 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OMP No.389 of 2020 in Civil Suit No.87 of 2020

Reserved on : December 22, 2020 Date of Decision : January 8, 2021

.

     Rajpur Hydro Power Private Limited
     and another                                               ....Plaintiffs
                           Versus





     M/s Gangdari Hydro Power Private Ltd.                     ...Defendant.

     Coram:

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes.

     For the Plaintiffs          :   Mr.   Ramakant    Sharma,    Senior
                                     Advocate, with Ms Anubhuti Sharma,
                   r                 Advocate.

     For the defendant           :   Mr.   Rajnish   Maniktala,    Senior
                                     Advocate, with Mr. Naresh K. Verma,
                                     Advocate.


     Vivek Singh Thakur, Judge



                   Facts,      relevant   for      adjudication         of     this

application, emerging from plaint are as under:-

A. Plaintiff No.1 Rajpura Hydro Power Private

Limited ('RHPPL' for short), a company incorporated under

Companies Act, 1956 (hereinafter referred to as Companies

Act), engaged in development and construction of Hydro

Energy Power Project at Nogli Khud, Tehsil Rampur, District

Shimla, Himachal Pradesh (hereinafter referred to as Hydro

Power Project), whereas plaintiff No.2 Dolphin Energy

Enterprises ('DEE' for short) is a Proprietorship concern and

OMP No.389 of 2020 in Civil Suit No.87 of 2020

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is the successful resolution applicant whose resolution plan

for RHPPL has been approved under the Insolvency and

Bankruptcy Code, 2016 ('Code' for short) by the National

.

Company Law Tribunal, Chandigarh ('NCLT' for short) vide

its orders dated 27.9.2018. In pursuant thereto DEE has

acquired the ownership, control and management of RHPPL.

B. Defendant M/s Gangdari Hydro Power Private

Limited (hereinafter referred to as 'defendant') is also a

company incorporated under Companies Act, which has set

up a Hydro Electric Project, namely Jongni (SHP).

C. RHPPL and defendant have entered into a Joint

Evacuation Agreement dated 11.4.2013, for the purpose of

pooling the power generated at their respective small hydro

projects and evacuating power through a common

Transmission Line. In the opening para of Joint Evacuation

Agreement, status of plaintiff and defendant has been

specifically mentioned as 'Generating Companies' within

the meaning of Section 2(28) of the Electricity Act, 2003 (in

short 'the Act').

D. A dispute has arisen between the plaintiffs and

defendant with reference to an amount claimed by

defendant payable by plaintiffs, towards cost of

construction of Transmission Line to be used jointly for

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evacuation of power and cost for operation and

maintenance thereof, to be shared and borne by plaintiffs

as agreed in terms and conditions of Joint Evacuation

.

Agreement, whereupon defendant has sent a

letter/Demand Notice dated 27.10.2020 to plaintiff No. 1

RHPPL, asking for payment of `6.48 crores and interest

thereon from plaintiffs, with threat of termination of Joint

Evacuation Agreement, if amount is not paid.

E. On 12.4.2017, Seashell Infrastructure Pvt. Ltd.

('Seashell' for short), i.e. a Financial Creditor of RHPPL, had

preferred an application under Section 7 of Code, before

Adjudicating Authority, seeking initiation of Corporate

Insolvency Resolution Process ('CIR Process' for short)

against RHPPL.

F. On 11.7.2017, the NCLT initiated CIR Process

against RHPPL and Resolution Professional was appointed,

who had issued a public announcement for submission of

claim(s), in terms of provisions of Code. As per plaint,

despite having knowledge of CIR Process, defendant did not

submit any claim before the Resolution Professional.

Thereafter, DEE had submitted the resolution plan in

respect of RHPPL, which was approved by NCTL, vide order

dated 27.9.2018, under the Code and on such approval, the

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approved resolution plan became binding to all

stakeholders, including defendant, and since then, the

approved resolution plan has been implemented and RHPPL

.

(plaintiff No. 1) has been duly acquired by DEE (plaintiff

No.2). It is claim of the plaintiff that liability to pay the

amount, which is being claimed by defendant on the basis

of Joint Evacuation Agreement, is not part of approved

resolution plan and, therefore, defendant has lost its right

to claim the said amount.

G. As per plaintiffs, Demand Notice, dated

27.10.2020, issued by defendant raising claims for an

amount of `6,48 crores for a period prior to CIR Process with

threat to terminate the Joint Evacuation Agreement on

failure of payment, has constrained them to file present

suit, for passing an injunction prohibiting the defendant

from terminating the Joint Evacuation Agreement and for

specific performance thereof.

2. After service, defendant has preferred to file this

application for rejecting the paint, in terms of provisions of

Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC'

for short).

3. It is contended on behalf of the defendant that

the Act provides a complete mechanism for determination

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of disputes, which are necessarily and compulsorily to be

decided under the provisions of the Act (Electricity Act) and

the jurisdiction of the Civil Court or any other Court or

.

authority, except as provided under this Act, is specifically

ousted. Further that, both, i.e. plaintiff(s) and the

defendant, are generating companies, within the meaning

of Section 2(28) of the Act and dispute between the parties

is a dispute between two generating companies with

respect to Dedicated Transmission Line, as defined under

Section 2(16) of the Act, and Section 86 of this Act provides

functions of the State Commission under the Act, wherein

Section 86(1)(f) specifically provides that State Commission

shall discharge the functions 'to adjudicate upon the

dispute between the Licencees and generating companies

and to refer any dispute for arbitration'. An appeal has

been provided under Section 111 to Appellate Tribunal

against and order made by Adjudicating Officer or

Appropriate Commission under the Act, except an order

passed under Section 127 of the Act, and further, Section

125 of the Act provides that any person aggrieved by

decision or order of the Appellate Tribunal may file an

appeal to the Supreme Court, and the Supreme Court for

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duly explained sufficient cause, may also condone delay in

filing appeal.

4. It is contended on behalf of defendant that

.

present case is covered under Order 7 Rule 11 (d) CPC,

which provides for rejection of plaint in case the suit

appears from the statement of plaint to be barred by any

law, and present suit is barred for provisions under Section

86(1)(f) read with Section 174 of the Act.

5. It is submitted on behalf of the plaintiffs that in

view of Section 9 of Civil Procedure Code (in short 'CPC'),

Civil Court shall have jurisdiction to try all matters unless

specifically ousted by any special law and in present case

jurisdiction of Civil Court has not been ousted either

expressly or impliedly and further that in case of ouster of

jurisdiction, alternative remedy must be sufficient and

adequate, which is not available in present case.

6. In the reply, filed to this application, it is

contended on behalf of plaintiffs that the Act does not bar

the jurisdiction of this Court to entertain the suit as remedy

prescribed under the Act is not sufficient or adequate in

comparison to remedy sought to be availed by the plaintiffs

before this Court as the State Commission neither has

jurisdiction nor power to grant relief, which has been sought

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in the main suit from this Court. It is further submitted that

a suit for specific performance, like the present one, would

require detailed determination of issues and may even

.

require expert evidence for determining validity or the basis

of the claim made by the defendant and complicate issues

involved in the present case cannot be decided in summary

proceedings as contemplated to be conducted before State

Commission, as the State Commission has no power to

grant relief of specific performance which would require

extensive evidence for determination, which would be

feasible only in a Civil Suit before a Civil Court. Further

that, State Commission being statutory body, established

under the Act, shall be bound by the provisions of the Act

and cannot act beyond the provisions of the said Act and

scope and ambit of the powers conferred upon the State

Commission under provisions of Section 86 of the Act are

very narrow, as the dispute under Section 86(1)(f) refers to

only those disputes which arise in the context of regulation

and determination of tariff between the generating and

licencee companies and not amongst the generating

companies themselves and the same, at any stretch of

imagination, cannot mean to include any dispute between

the generating companies. Further that, none of the claims

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of the plaintiffs, in the present suit, relate to regulation of

tariff or concern any other activities which can be regulated

by the State Commission, rather present dispute is purely

.

commercial and contractual in nature between two parties,

in their capacity as joint owners of Joint Evacuation Line,

which is not amenable to provisions of the Act.

7. It is further submitted on behalf of plaintiffs that

in view of provisions of Section 238 of the Code, wherein

provisions of the Code have been given overriding effect on

any other law or instrument having effect by virtue of any

such law coupled with the fact that defendant has not put

forth its claim in CIR Process as provided under the Code,

and for finality of CIR Process under the Code, and,

thereupon, approval of resolution plan under Section 31(1)

of Code, dispute cannot be raised before the State

Commission under Section 86(1)(f) of the Act as provided

under the Code, particularly under Section 31(1) of the

Code.

8. It is also contended that as per provisions of

Section 145 of the Act, bar to jurisdiction of Civil Court is

only with respect to matters referred to in Section 126 and

Section 127 or the Adjudicating Officer appointed under the

said Act to determine, but not to any other matter and as

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present dispute is not referable to any kind of such

proceedings, regarding which bar has been created against

the jurisdiction of Civil Court under Section 145 of the Act,

.

present Civil Suit is not barred by the Act.

9. It is also contended on behalf of plaintiffs that

keeping in view the object of the Act, scope of proceeding

under the Act are very limited, as establishment of

Regulatory Commission therein is with reference to object

thereof and thus Commissions, under the Act, have been

entrusted with power and duty of determination of tariff etc.

and the State Commission being one of the authority

established under the Act is competent to adjudicate those

disputes only which pertain to the matters concerning the

object of the Act and dispute in suit is beyond the scope of

that, and further that the State commission would not be

pre-disposed or well equipped to handle the dispute of

purely commercial nature, which requires detailed

adjudication.

10. Referring provision of Section 86 of the Act, it is

advocated on behalf of plaintiffs that jurisdiction of State

Commission is limited to the issue related to determination

of tariff for generation, supply, transmission and wheeling

of electricity, regulate electricity purchase and procurement

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process of distribution licensees, facilitate intra-state

transmission and wheeling of electricity, issue license,

promote co-generation and generation of electricity, levy

.

fee, specify Grid Code, fix trading margin and discharge

such other functions as may be assigned to it under the Act

and phrase 'dispute' in Section 86(1)(f) of the Act cannot be

interpreted to include 'any dispute' under the sun but only

those which resonate with the object of the Act, whereas a

suit for specific performance, such as the present one,

would require detailed determination of issues and may

even require production of expert evidence to determine

the validity or the basis of the claim made by defendant.

11. It is also contended for plaintiffs that under

Section 86(1)(f) of the Act, State Commission shall have

jurisdiction to adjudicate dispute between a Generating

Company and a licensee only, whereas in present case

none of the entities is licensee and on this count also State

Commission shall not have jurisdiction.

12. It is case of the plaintiffs that status of the

defendant is of creditor as defined under 2(10) of the Code

and in view of Section 31(1) of the Code, approved

resolution plan is binding on a creditor and as the approved

resolution plan contemplates that plaintiff No. 1 has been

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acquired by plaintiff No. 2 without any past liabilities, the

defendant cannot burden the successful resolution

applicant i.e. plaintiff No. 2 with any past liability and,

.

therefore, claim of the defendant is not maintainable and

demand thereof by the defendant certainly creates a cause

of action to the plaintiffs for seeking specific performance,

as prayed in the present suit.

13. In response to the plea taken by the plaintiffs, it

is argued on behalf of defendant that defendant is not

claiming the amount as a creditor, but is claiming the share

of cost of construction of joint evacuation 'Transmission

Line' constructed by defendant, as agreed upon by the

plaintiffs to be paid for pooling power generation, in terms

of Joint Evacuation Agreement, and the said amount is an

amount arising out of the agreement entered between the

parties for evacuating power and for nonpayment thereof

plaintiffs will not be entitled to use Transmission Line, and

thus it is a contractual liability of the plaintiffs and further

that plaintiffs are claiming right to use transmission line,

but refusing to share construction cost as well as operation

and maintenance charges thereof which is to be reimbursed

by plaintiffs in furtherance to the Joint Evacuation

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Agreement for Transmission of electricity for using common

'Transmission Line'.

14. It has been contended on behalf of defendant

.

that Electricity Regulatory Commission has all trappings of

civil Court and can decide all disputes including the

contractual ones and these Commissions have been

elevated to status of substitute of civil court for deciding all

the disputes, including contractual disputes between

Generating Companies inter se, licensees inter se or

amongst them.

15. It is contended that keeping in view the scheme

of the Act, reference of Section 145 of the Act is irrelevant

to the present case, as it has to be governed under Section

86(1)(f) read with Sections 174 and 175 of the Act, conjoint

reading whereof clearly indicates that jurisdiction of any

other Court or tribunal other than State Commission is

excluded expressly and if not expressly, by way of

necessary implication as Section 86(1)(f) of the Act shall

have overriding effect to Section 9 of CPC being in conflict

with Section 86(1)(f) of the Act.

16. In support of submission made on behalf of

defendant following judgments have been referred:-

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(a) Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power

Ltd., (2008) 4 SCC 755;

(b) Tamil Nadu Generation and Distribution

.

Corporation Limited Vs. PPN Power Generating

Company Private Limited, (2014) 11 SCC 53;

(c) Andhra Pradesh Power Coordination Committee

and others Vs. Lanco Kondapalli Power Limited

and Others, (2016) 3 SCC 468

(d) State of Gujarat and others Vs. Utility Users'

Welfare Association and others, (2018) 6 SCC 21,

(e) Maharashtra State Electricity Distribution Co. Ltd.

Vs. M/s Adani Enterprises Ltd. and others, 2016

(162) AIC 301;

(f) Chairman and Managing Director Southern Power

Distribution Company of Andhra Pradesh Tirupati

and others Vs. Sudalagunta Sugars Limited Rep.

by its Chairman and Managing Director, Mr.S.

Jayaram Chowdary, 2013 AIR (A.P.) 1;

(g) Judgment dated 7.8.2018 passed by Appellate

Tribunal for Electricity, New Delhi in Appeal No.

77 of 2015, dated 7.8.2018, titled as Global

Energy Pvt. Ltd. Vs. Maharashtra Electricity

Regulatory Commission.

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(h) Judgment dated 23.2.2011 passed by Appellate

Tribunal for Electricity New Delhi in Appeal No.

200 of 2009, titled Pune Power Development

.

Pvt. Ltd. Vs. Karnataka Electricity Regulatory

Commission; and

(i) Judgment dated 2.1.2013, decided by Appellate

Tribunal for Electricity, New Delhi in Appeal No.

81 of 2011, titled Allian Duhagaon Hydro Power

Vs. Everest Power Pvt. Ltd.

17. In support of plea of plaintiffs that the provisions

of the Code shall prevail over any other law,

pronouncements of the Apex Court in Innoventive Industries

Ltd. Vs. ICICI Bank and Another, (2018) 1 SCC 407 and Pr.

Commissioner of Income Tax Vs. Monnet Ispat & Energy Ltd.,

(2018) 18 SCC 786 have been referred. There is no dispute

with respect to ratio propounded in these judgments.

However, issue doubting the overriding effect of provisions

of the Code has been raised by either party. Dispute in

issue herein is regarding status or nature of relation of

parties with respect to cost of construction and user of

Transmission Line. Whether plaintiffs and defendant are

debtor and creditor, or co-owners, or partners, or co-users,

or parties in contract, or something else in relation to cost

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of construction and user of Transmission Line, is the issue

to be decided to resolve the dispute and result thereof

would decide as to whether demand of defendant is barred

.

under the Code or not. The Code does not restrict, bar or

prohibit adjudication of such dispute in collateral or other

proceedings even after approval of resolution plan by NC

LT. Hence these judgments, which would be relevant after

determination of status/nature of relation of parties, are not

necessary to be discussed.

18. Learned counsel for plaintiffs has referred

pronouncements of the Apex Court in Kamla Mills Ltd. Vs.

State of Bombay (1966) 1 SCR 64; Dhulabhai & others Vs.

State of M.P. & Another (1968) 3 SCR 662=AIR 1969 SC 68;

Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru

Pattabhirami Reddi, AIR 1967 SC 781 and Church of North

India Vs. Lavajibhai Ratanjibhai and others (2005) 10 SCC

760 with respect to principles propounded by the Apex

Court for ousting civil court jurisdiction.

19. Referring Kamala Mills case supra, it is

submitted on behalf of plaintiffs that in cases where

exclusion is pleaded as a matter of necessary implication,

the consideration as to scheme of statute in question and

adequacy or the sufficiency of remedies provided for by it

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would be very important, and in conceivable circumstances,

might even become decisive, however where exclusion of

civil courts' jurisdiction is expressly provided such

.

consideration may be relevant but cannot be decisive.

20. In Dhulabhai's case the view expressed by the

Apex Court in various pronouncements in past has been

summarized as under:-

"35. Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR 752 = (AIR 1964 SC 322) or Kamla Mills, 1966 1 SCR 64 = (AIR 1965 SC 1942)

can be said to run counter to the series of cases

earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:

(1) Where the statute gives finality to the

orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil

courts would normally do in a suit. Such

provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the

statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies

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provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme

.

of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is

necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the

said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in r civil courts are prescribed by the said statute

or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act.

Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared

unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for

refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

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(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities

.

are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be

examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."

21. In Sri

Vedagiri Lakshmi Narasimha

Temple' case it is re-iterated by the Supreme Court that

under Section 9 of the Code of Civil Procedure, the Courts Swami

shall have jurisdiction to try all suits of civil nature except

suits of which their cognizance is either expressly or

impliedly barred and that it is settled principle that a party

seeking to oust jurisdiction of an ordinary civil court shall

establish the right to do so. In Church of India's case

principles, summarized for exclusion of jurisdiction of civil

court in Dhulabhai's case, have been re-iterated by the

Supreme Court.

22. So far as principles, propounded in aforesaid

judgments referred on behalf of plaintiffs, are concerned,

there is no dispute, however, in present case for discussion

herein after, I am of the considered view that jurisdiction of

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Civil Court has been excluded, if not expressly, by

implication of provision of Section 86(1)(f) read with Section

174 of the Act.

.

23. Pronouncement of the Apex Court in Tata Power

Co. Ltd. Vs. Reliance Energy Ltd. (2009) 16 SCC 659, has

been referred to substantiate the plea of limited scope and

object of enactment of the Electricity Act, 2003. In my view

observations made by the Supreme Court are with

reference to and confined to the issue involved in that case

which are not exhaustive but limited one and are not

applicable in context of present case.

24. Judgments in M/s Shree Shiv Sai Steel Industries

Vs. Assam Power Distribution Co. Ltd. and others (2017) 5

Gauhari Law Reports 103; Punjab State Electricity Board,

Patiala & others Vs. Guru Nanak Agricultural Engineering

Works & Others, 2006 SCC Online P&H 1617; Dakshin

Haryana Bijli Vitran Nigam Ltd. and others Vs. Smt. Santosh

Devi 2014 SCC Online P&H 11736 and Bses Rajdhani Power

Ltd. Vs. Ashok Kumar, (2008) 106 DRJ 272 have been

referred on behalf of plaintiffs to substantiate the plea that

Section 145 of the Act does not exclude the jurisdiction of

the Civil Court in the matters like present one. Finding of

this Court, rendered hereinafter, that jurisdiction of Civil

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Court, in present case, stands excluded, is based on

provisions of Section 86(1)(f) and Section 174 of the Act,

but not for Section 145 of the Act, therefore, these

.

judgments are not necessary to be discussed.

25. Pronouncements in Velagapudi Power

Generation Ltd. Vs. Southern Power Generation Company of

Andhra Pradesh and others (2010) APTEL 31, Gujarat Urja

Vikas Nigam Ltd. Vs. Essar Power Ltd. (2008) 4 SCC 755;

Power Exchange India Ltd. Vs. Multi Commodity Exchange of

India Ltd. & others, 2009 SCC Online CERC 248; V.

Srinivasan Vs. The Secretary Tamil Nadu Generation and

Distribution Corporation Ltd. and others, 2013, SCC Online

Mad 1074; Hassan Thermal Power Pvt. Ltd. Vs. State of

Karnataka 2019 SCC Online Kar 3103; Hassan Thermal Power

Pvt. Ltd. Vs. Karnataka Power Transmissions Corporation Ltd.

and another, SLP (Civil) No. 6433-6434 of 2020; Hindustan

Zinc Ltd. (HZL) Vs. Ajmer Vidyut Vitran Nigam Ltd., (2019) 17

SCC 82; Nusli Neville Wadia Vs. Ivory Properties and others,

2020 (6)SCC 557; Karad Urban Cooperative Bank Ltd. Vs.

Swwapnil Bhingardevay and others, 2020 (9) SCC 729;

Committee of Creditors of Essar Steel India Ltd. Vs. Satish

Kumar Gupta & others, 2020 (8) SCC 531, have also been

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relied upon on behalf of plaintiffs, which I do not find

relevant to be discussed for findings returned hereinafter.

26. Relevant extract, of Sections 79, 86(1)(f), 145,

.

174 and 175 of the Act, necessary to be referred for

adjudication of matter, reads as under:-

"79(1) The Central Commission shall discharge the following functions, namely:--

.... .... ....

(f) to adjudicate upon disputes involving generating

companies or transmission licensee in regard to matters connected with clauses (a) to (d) above and to refer any dispute for arbitration.

.... .... ...

86 (1) The State Commission shall discharge the following functions, namely:--

... .... ...

(f) adjudicate upon the disputes between the

licensees and generating companies and to refer any dispute for arbitration.

.... .... ...

145. Civil court not to have jurisdiction.

No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in section 126 or an

appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

... ... ...

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174. Act to have overriding effect. Save as otherwise provided in section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith

.

contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

175. Provisions of this Act to be in addition to and not in derogation of other laws.

The provisions of this Act are in addition to and not in derogation of any other law for the time being in

force."

27. The Apex Court in Gujarat Urja Vikas Nigam's

case has held as under:-

"34. Section 174 provides that the Electricity Act, 2003 will prevail over anything inconsistent in any other law. In our opinion the inconsistency may be

express or implied. Since Section 86(1)(f) is a special provision for adjudicating disputes between licensees and generating companies, in our opinion

by implication Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes

i.e. disputes between licensees and generating companies. This is because of the principle that the

special law overrides the general law. For adjudication of disputes between the licensees and generating companies there is a special law namely 86(1)(f) of the Electricity Act, 2003. Hence the general law in Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes.

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35. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner, vide Chandra Kishore Jha V/s. Mahavir Prasad, AIR

.

1999 SC 3558 (para 12), Dhananjaya Reddy V/s. State of Karnataka, AIR 2001 SC 1512 (para 22), etc. Section 86(1)(f) provides a special manner of making

references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred.

... ... ...

60. In the present case, it is true that there is a provision for arbitration in the agreement between the parties dtd. 30.5.1996. Had the Electricity Act,

2003 not been enacted, there could be no doubt that

the arbitration would have to be done in accordance with the Arbitration and Conciliation Act, 1996. However, since the Electricity Act, 2003 has come into force w.e.f. 10.6.2003, after this date all

adjudication of disputes between licensees and generating companies can only be done by the State Commission or the arbitrator (or arbitrators)

appointed by it. After 10.6.2003 there can be no

adjudication of dispute between licensees and generating companies by anyone other than the State Commission or the arbitrator (or arbitrators)

nominated by it. We further clarify that all disputes, and not merely those pertaining to matters referred to in clauses (a) to (e) and (g) to (k) in Section 86(1), between the licensee and generating companies can only be resolved by the Commission or an arbitrator appointed by it. This is because there is no restriction in Section 86(1)(f) about the nature of the dispute.

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61. We make it clear that it is only with regard to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the Arbitration and Conciliation

.

Act, 1996. However, as regards, the procedure to be followed by the State Commission (or the arbitrator nominated by it) and other matters related to

arbitration (other than appointment of the arbitrator) the Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of 2003). In other words, Section 86(1)(f) is only

restricted to the authority which is to adjudicate or arbitrate between licensees and generating companies. Procedural and other matters relating to

such proceedings will of course be governed by

Arbitration and Conciliation Act, 1996, unless there is a conflicting provision in the Act of 2003."

28. It is true that vide Section 145 of the Act,

jurisdiction of civil Court has been barred in certain matters

but present matter is not covered under that Section.

Section 145 of the Act has its limited application with

respect to Sections 126 and 127 of the Act and

determination by Adjudicating officer appointed under this

Act. Power to adjudicate for the purposes of the Act has

been provided under Section 143 of the Act and therefore,

this Section is to be read with reference to and in context

with chapters containing in Sections 126, 127 and 143 only

whereas Section 86(1)(f) of the Act provides a different

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complete mechanism to adjudicate upon 'the dispute

between licensees and Generating Companies' in a

particular manner as it provides not only adjudication by

.

Commission, but also mandates statutory Arbitration if

required as held in Gujarat Vikas Nigam's case by the

Supreme Court.

29. From the object of the Act, it is evident that this

Act has been enacted to consolidate laws relating to

generation, transmission, distribution, trading and use of

electricity, which includes the transmission of electricity

also and transmission of electricity could be through

transmission lines only and the Act also defines dedicated

transmission lines as an electric supply line for point to

point transmission required for purpose of connecting

electric line or electric plants or a captive generating plant

or sub-stations or generating stations or the load centre.

Thus the Act also deals with transmission of electricity and

dedicated transmission lines. In present case issues with

respect to cost of construction of dedicated transmission

line, operation and maintenance charges thereof as well as

its user are directly involved.

30. Section 86(1)(f) of the Act deals with dispute

between the licensees and Generating Companies.

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Endorsing the view taken by the Appellate Tribunal for

Electricity, New Delhi in Pune Power Development and

Allian Duhangan Hydro Power cases, for the language of

.

this sub-section, I am of the considered view that

jurisdiction to adjudicate upon the dispute between two

licensees or between two generating companies or between

licensee(s) and generating Company(ies) lies with State

Commission under Section 86(1)(f) of the Act.

31. So far as status of plaintiffs is concerned, the

same is of generating company, not for only mention of

such status in opening para of Joint Evacuation Agreement

filed by the plaintiffs along with plaint, but also for the

definition of Generating Companies, as contained in Section

2(28) read with Section 2(29) and 2(30) of the Act.

Therefore, present dispute is between two generating

companies, which is covered by Section 86(1)(f) of the Act.

32. Jurisdiction and power of State Commission

under Section 86(1)(f) of the Act to adjudicate upon dispute

between licensee and generating companies and to refer

any dispute for arbitration, is not confined to adjudicate the

dispute related to functions mentioned in other clauses of

Section 86(1) only, but the State Commission has been

empowered to adjudicate upon any issue related to subject

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matter of the Act. Intention of the legislature can be

gathered from Section 79 of the Act, wherein functions,

which Central Commission shall discharge, have been

.

described. In Section 79(1)(f) of the Act jurisdiction and

power of Central Commission has been confined to

adjudicate upon dispute involving generating companies or

transmission licensees in regard to matters connected with

clauses (a) to (d) of the this Section and to refer any dispute

for arbitration. Intention of the legislature is clear that

Central Commission has been empowered to adjudicate

upon the dispute related to Section 79(1)(a) to 79(1)(d) only

and no other dispute, whereas in Section 86(1)(f), there is

no such impediment to adjudication of dispute by State

Commission. Therefore, jurisdiction and power of State

Commission to adjudicate upon the disputes under Section

86(1)(f) of the Act is not limited to the issues related to

determination of tariff only, but the State Commission is

empowered to adjudicate upon any issue, subject matter

whereof is within the purview of the Act. As noticed supra,

object of enacting the Act includes consolidation of the laws

relating to generation, transmission, distribution, trading

and use of electricity. Therefore, an issue with respect to

right to use Transmission Line by a generating company

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jointly with another generating company, on the basis of

Joint Evacuation Agreement, definitely falls within the ambit

and scope of Section 86(1)(f) of the Act. For adjudicating

.

upon the dispute in present case i.e. whether plaintiffs are

entitled to use Transmission Line without paying the liability

accrued on the basis of Joint Evacuation Agreement for

approval of resolution plan, or defendant has a right to

prohibit/restrain the plaintiffs from using the Transmission

Line for non-payment of costs as claimed, can be

adjudicated upon on the basis of documents only, for which

no expert evidence may be necessary. Otherwise also such

issues can be adjudicated upon effectively and efficaciously

in arbitration also. Adjudication of dispute of commercial

nature or contractual nature is undoubtedly possible in

arbitration wherein parties may also lead evidence in

support of their respective claims. Therefore, plea raised

on behalf of plaintiffs that State Commission has neither

jurisdiction nor power nor expertise to adjudicate upon the

dispute, is not tenable.

33. Scheme of the Act provides forum for

adjudication of dispute between generating companies

under Section 86(1)(f) of the Act and appeal thereof has

been provided under Section 111 to Appellate Tribunal to

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be constituted under the Chairmanship of Judge of Supreme

Court or Chief Justice of High court and further appeal under

Section 125 to Supreme Court, has been provided against

.

any decision or order of the Appellate Tribunal on any one

or more of the grounds stipulated in Section 100 of the CPC.

A complete mechanism for adjudicating dispute has been

provided under the Act, wherein statute gives finality to the

order of the State Commission in the manner prescribed

under the Act.

34. Section 86(1)(f) of the Act provides remedy of

adjudication of dispute by State Commission. It also

provides that dispute can be referred for arbitration,

meaning thereby State Commission either itself has to

adjudicate upon the dispute or to refer it for arbitration, as

explained by the Supreme Court in Gujarat Urja Vikas

Nigam's case. Therefore, Act provides a resolution of

dispute either by the State Commission or through

arbitration and no other mode and manner has been

prescribed therein. In case of adjudication by State

Commission itself, decision shall attain finality before

Appellate Tribunal or the Supreme Court as provided under

Sections 111 and 125 of the Act. In case of reference for

arbitration, as observed by the Apex Court in Gujarat Urja

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Vikas Nigam's case, except Section 11 of Arbitration and

Conciliation Act, 1996 (for short Arbitration Act), all other

provisions of the Arbitration Act shall be applicable for

.

arbitration in a case referred under Section 86(1)(f) of the

Act. Therefore, in case of reference of dispute for

arbitration a complete mechanism under Arbitration Act is

provided.

35. So far as availability of efficacious and effective

remedy is concerned, in no uncertain terms, it is settled

now that resolution of dispute through arbitration is a well

recognized efficacious and speedy forum and thus normally,

parties, instead of relegating themselves to lengthy

procedure of CPC, are always interested to resolve the

dispute through arbitration.

36. Effective and efficacious remedy has been

provided under the scheme of the Act. Section 174 of the

Act provides overriding effect of provision of any Act

notwithstanding anything inconsistent therewith contained

in any other law for the time being in force. Provision of

Section 9 of CPC is also a provision of other law in force for

the time being, which provides that the civil courts will have

jurisdiction to all suits of civil nature except those expressly

or impliedly barred. As a matter of fact under the Act a

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statutory provision under Section 86(1)(f), has been

provided with mandate that dispute between licensees and

Generating Companies shall be adjudicated upon either by

.

the State Commission itself or through arbitration on

reference of the dispute by State Commission for

arbitration. Therefore, by way of compulsion, on account of

statutory provision, dispute is to be resolved in the manner

prescribed under the Act, either by State Commission or

through Arbitration. Therefore, any provision of other

enactment repugnant thereto shall have to give way to the

provision of the Act and, therefore, there is implied bar for

filing a civil suit to adjudicate the matter under the Act and

thus civil suit shall not be maintainable in a dispute like

present one.

37. By incorporation of provision to refer the dispute

between licensees and Generating Companies for

arbitration, jurisdiction of civil court has been ousted, not

only impliedly, but also expressly, as after introduction of

arbitration clause, jurisdiction of civil court is barred.

38. Dispute between the parties herein is that

defendant is raising demand for an amount against cost of

construction and operation and maintenance charges of

dedicated transmission line as agreed in Joint Evacuation

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Agreement between the plaintiffs and defendant for using

the said transmission line jointly, whereas plaintiffs are

denying any liability to pay, accrued in past prior to

.

approval of resolution plan under the Code, for not

presenting the said claim before the resolution professional

during CRI Process. It is claim of the plaintiffs that such

claim has been extinguished for non presentation before

the resolution professional, as provided under the Code,

because according to plaintiffs status of defendant is

creditor under the Code, whereas defendant's claim is that

it is cost of construction and operation and maintenance of

Transmission Line and payment thereof is a precondition for

user of Transmission Line by plaintiffs in terms of Joint

Evacuation Agreement. According to defendant, it is not a

debt and defendant is not a creditor, but plaintiffs would be

a co-owner or co-user of Transmission Line on payment of

cost of construction, but for failure of payment of cost of

construction, plaintiffs shall have no right to use the said

Transmission Line. Whereas plaintiffs are claiming for

mandate of specific performance in their favour on the

basis of Joint Evacuation Agreement, but without

performing their part agreed to be performed in the said

agreement. All these issues are legal, commercial and

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contractual, which can be decided on the basis of

documents only in the light of provisions of law applicable

and for adjudication thereof State Commission or Arbitrator

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so appointed by the State Commission under Section

86(1)(f) of the Act shall be an effective and efficacious

forum available to the parties.

39. Case law referred with reference to claims and

counterclaims of parties on merits of the dispute has not

been discussed. As such issues are to be adjudicated and

decided by forum/authority adjudicating the dispute on

merits, thus, not necessary to be considered in this

application.

40. Considering the statement in the plaint, along

with documents filed therewith as well as relevant case law

as discussed herein above, suit appears to be barred by

Electricity Act, 2003 and therefore, present application is

allowed and plaint is rejected under Section 11(d) of CPC,

with liberty to the plaintiffs to avail appropriate remedy in

the light of observations made herein above.

The application stands disposed of in the

aforesaid terms.

                                           ( Vivek Singh Thakur )
     th
    8 January, 2021(sd/KRS)                       Judge.