176 of 2011before the APTEL.
176 of 2011, whereby it has dismissed the appeal preferred by the appellant against the final judgment and order dated 17th June, 2011 of Tamil Nadu Electricity Regulatory Commission hereinafter referred to as the State Commission in D.R.P. No.
The disputed amount was withheld.
The seventh issue related to determination of capital companyts, the State Commission in its order under appeal had directed the appellant to pay the invoice in full as claimed by the respondent without determining the capital companyts by getting the petition for finalization of capital companyts, which was pending in the State Commission finally adjudicated.
These payments were accepted by the appellants.
A meeting took place on 19th May, 2009 but the dispute was number resolved.
12 of 2009.
Under the PPA, the respondent has to submit an annual invoice indicating the amounts owed under the Tariff.
On the other hand, respondent adjusted the amount received by it in the following month against the unpaid amount of the previous month.
Since, there was numberresponse, the respondent sent a reminder.
Accordingly, while making the payment of the admitted amount under each invoice, the appellant deducted the 2.5 rebate, as payments were made within 5 days from the date of the receipt of the invoice.
It is also the claim of the respondent that the appellant had unilaterally made several disallowances without informing the respondent of the same.
The limitation period prescribed in the Limitation Act, 1963 would number apply to the proceeding before the Commission, delay and laches would apply.
The appellant is liable to pay interest to the respondent in terms of Clause 10.6 of the PPA till payment.
Schedule A of the PPA deals with Tariff.
Aggrieved by the aforesaid directions, the appellant filed Appeal No.
The respondent accepted the admitted amount paid against each invoice without raising any dispute either with respect to the disputed amount or the substantial payment made by the appellant.
Interest on the receivable equivalent to 2 months average billing for sale of electricity is loaded upfront on the monthly invoice.
The aforesaid numberification has been made part of the PPA as Schedule U thereof.
The appellant in reply informed the respondent on 16th April, 2009 that the matter was under scrutiny and examination.
The present appeal is directed against the aforesaid directions issued by APTEL.
APTEL has approved the findings of the State Commission that the appellant had adopted delaying tactics by number companyperating in the finalization of the capital companyts.
Therefore, each side is claiming that the other did number provide any details with regard to the amounts due and the amounts paid.
The State Commission as well as the Appellate Tribunal have companycurrent findings that the appellant was duly numberified that the payment part payment made were being adjusted on FIFO basis.
The appellant claims that substantial payments towards the monthly invoices raised by the Respondent for every month were paid against the admitted amount in the invoice.
The balance of amount payable, according to the respondent was Rs.1,787,272,534.
On 1st April, 2009, respondent sent a Notice to the appellant in terms of Article 16 of the PPA claiming amounts due overdue from the appellant and interest on late payments.
Interest of the respondent upto the 30th day loaded upfront in the invoice.
Under this scheme, the purchaser, i.e., appellant is entitled to a rebate 2.5 if the payment is released within 5 days from the date of invoice and 1 if the payment is released within 30 days from the date of invoice.
Part of this is refunded by way of rebate of 2.5 if payment is made within 5 days and at 1 if it is made after 5 days but upto the 29th day from the presentation of the monthly invoice.
1,89,91,17,264 being a sum due as on 19th March, 2009, under the invoices raised under the PPA and interest thereon in terms of Article 10.6 of the PPA from the due date till the date of actual payment.
The rebate would be admissible to the appellant, if the redrawn monthly invoice and the original payment made by the appellant against the invoice of that month matches or if the appellant has made excess payment, the respondents were directed to redraw the annual invoice for 2001 2002, 2002 2003, 2003 2004, 2004 2005, 2005 2006 and 2006 2007, as at September of each year to capture the gains to the appellant on account of lower interest rates and gains to the respondent on account of higher floating rate.
After setting out the details of the amounts due as narrated above, the respondent claimed that, under Article 10.2 b of the PPA, in the event of any dispute as to all or any of the portion of an invoice, the appellant was required to pay the full amount of the disputed charges and thereafter serve a numberice on the respondent indicating the amount in dispute.
Since June, 2001, the appellant had been making payments as numbericed above, and the respondent had been adjusting the same on a FIFO basis.
It appears that both the parties were dissatisfied with accounting details provided by the other.
According to the appellant, invoices of the respondent inter alia included interest on debt sanctioned but number disbursed, charges towards energy companysumed at the residential quarters at the generating station etc.
Since the dispute was number resolved, the respondent filed the petition D.R.P. No.
APTEL has also held that the bar under Order 2 Rule 2 of the CPC would number be applicable in the facts of this case.
The balance was carried forward by the respondent.
Conversely, if the appellant has made excess payment against each monthly invoice companypared to the companyresponding redrawn monthly invoice, the respondent is liable to pay interest in terms of Article 10.6 of the PPA.
Certain other directions were also issued.
Firstly, under Article 16 1 , by mutual discussions through the designated representatives of the parties.
The petition was accordingly disposed of.
The amounts receivable from the appellant for the previous year are to be reconciled against the sum of monthly estimated payment made by the appellant as soon as possible after the end of each year.
On the other hand, the respondent claims that the appellant, from inception only made adhoc payments periodically against the monthly invoices raised.
The respondent, a generating companypany, has entered into a Power Purchase Agreement PPA with the appellant on 3rd January, 1997 for the supply of the entire Electricity to be generated by the respondent for a period of 30 years.
On 8th May, 2009, the respondent requested the appellant to provide the particulars and details forming the basis of your claim before 15th May, 2009.
With regard to the number filing of the annual invoices by the respondent, it has been held that the respondent should have filed the annual invoices in time.
Continuous companyrespondence was exchanged between the parties from August, 2007 to March, 2009.
Ultimately, the respondent issued a numberice of dispute resolution on 26th April, 2007 and appointed its Vice President, Shri B. Sundaramurthy as the representative.
In any event, 60 days of interest on the Working Capital had already been loaded upfront.
The appellant claims that the monthly invoices raised by the respondent were only estimated invoices.
12 of 2009 before the State companymission, seeking a direction to the appellant to make a payment of sum of Rs.
Instead of making the payment of the amounts claimed, the appellant issued letter dated 4/5th May, 2009 claiming that according to its accounts, sum of Rs.31.12 crores was due to the appellant.
Accordingly, respondent started raising monthly invoices from 26th April, 2001 for the Electricity supplied by it to the appellant.
Government of India by Notification dated 30th March, 1992 incorporated a rebate scheme on the receivables.
The respondent also requested the appellant to fix a meeting on or before 19th May, 2009 to discuss the issues and resolve the same.
Limitation, delay and laches Bar under Order 2 Rule 2 CPC Non filing of Annual Invoices Determination of capital companyt Deduction on the monthly invoices Excess Claims in the monthly invoice unjust enrichment Interest on Late Payments.
Therefore, the direction issued by the State Commission to the respondent to redraw the annual invoices has been affirmed.
The respondent companymenced companymercial operations on 26th April, 2001.
The Notice gives a summary of claims of the respondent till 30th March, 2009 other than towards specified taxes, which was stated to be subjudice, and, therefore, number included therein.
The dispute is to be resolved under Article 16, which provides for informal resolution of dispute.
The facts have been numbericed in detail both by the State Commission and the APTEL, therefore, we shall make a reference only to the very essential facts necessary for deciding this appeal.
SURINDER SINGH NIJJAR, J. This statutory appeal under Section 125 of the Electricity Act, 2003 hereinafter referred to as the Act is directed against the final judgment and order dated 22nd February, 2013 passed by the Appellate Tribunal for Electricity hereinafter referred to as APTEL or Appellate Tribunal , at New Delhi in Appeal No.
