I.A. No.194 Of 2017 In Dfr No.1945 Of 2011. Case: Tamil Nadu Electricity Board Vs PPN Power Generating Company Pvt. Ltd. & Anr.. APTEL (Appellate Tribunal for Electricity)
| Case Number | I.A. No.194 Of 2017 In Dfr No.1945 Of 2011 |
| Counsel | For Appellant: Mr. S. Vallinayagam, Adv. and For Respondents: Mr. Jayant Bhushan, Sr. Adv. Mr. Rahul Balaji and Mr. Senthil Jagdessan, Advs. |
| Judges | Shri I.J. Kapoor, Technical Member and Smt. Ranjana P. Desai, Chairperson |
| Issue | Electricity Law |
| Judgement Date | May 11, 2017 |
| Court | APTEL (Appellate Tribunal for Electricity) |
Order:
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There is a delay of 249 days in filing this appeal. Hence, the present application is filed by the Appellant praying that the delay in filing the appeal may be condoned.
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It is necessary to narrate certain crucial facts. The impugned order dated 02/03/2011 is passed by the Tamil Nadu Electricity Regulatory Commission ("the State Commission"). The case of the Appellant before the State Commission was that Article 13.5(iii) of the PPA between the Appellant and Respondent No.1 clearly states that for Non-Political Force Majeure events, no fixed capacity charges ("FCC") will be paid by the Appellant to Respondent No.1.
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Respondent No.1 by letter dated 01/04/2005 requested the Appellant to release the FCC for the period of tsunami -- a Non-Political Force Majeure event. On 16/04/2005, the amount was released to Respondent No.1. The matter would have rested there. But according to the Appellant, in an audit enquiry conducted on 22/05/2007, it was realized that the said amount of FCC paid to Respondent No.1 to the tune of Rs.32.57 crores was wrongly paid. It is the case of the Appellant that after obtaining opinion of the former Advocate General, the Appellant sent communication dated 20/03/2010 to Respondent No.1 for recovery of Rs.32.57 crores. Respondent No.1 challenged the said action in the State Commission. By the impugned order, the State Commission has set aside the said communication.
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The Appellant is a public body. A huge amount of public money is involved in this case. Perhaps, that is the reason why the Advocate General represented the Appellant before the State Commission. In such a case, the Appellant should have shown promptitude. The appeal should have been filed within the period of limitation. However, the appeal was presented before the Registry of this Tribunal only on 22/12/2011. On scrutiny, a defect letter dated 05/01/2012 was issued to the Appellant''s advocate asking him to cure the defects within seven days. As no steps were taken by the Appellant''s advocate, the Registry listed the matter for "Directions" before the Court on 22/12/2016. On that day, the advocate for the Appellant took two weeks'' time to obtain instructions from the Appellant whether the Appellant wants to prosecute the matter or not. Accordingly, the matter was adjourned to 18/01/2017. On 18/01/2017, advocate for the Appellant took two weeks'' time, to cure the defects. On 28/02/2017, the defects were cured by the advocate for the...
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