The Appellant, however, filed an application before the Andhra Pradesh Electricity Regulatory Commission for short, the Commission originally companystituted under the Andhra Pradesh Electricity Reform Act, 1998 for short, 1998 Act , praying, inter alia, for fixing the installed capacity of the Plant and for companysequential reliefs.
Evidently, the said application was filed relying on or on the basis of the arbitration clause companytained in the said Power Purchase Agreement.
A writ petition marked as Writ Petition No.7838 of 2004 was also filed by the Respondent before the Andhra Pradesh High Court on or about 22.04.2004 praying for issuance of a writ of prohibition against the Commission restraining it from proceeding to adjudicate the dispute between the parties on the premise that the companystitution of the Commission was incomplete.
However, in the meantime, as numberarbitrator was appointed by the Appellant in terms of the arbitration agreement companytained in Article 14 of the Power Purchase Agreement, an application purported to be under sub sections 3 and 4 of Section 11 of the 1996 Act was filed before the Chief Justice of the Andhra Pradesh for appointment of an arbitrator.
Dispute The Plant was companymissioned.
The said application is still pending.
The Respondents application for grant of injunction in the proceedings initiated before the City Civil Court in the meanwhile was taken up for hearing and by an order dated 11.08.2004, the said Interlocutory Application was dismissed, holding that having regard to the provisions of the 1998 Act and the 2003 Act, the Commission alone had the jurisdiction to decide the dispute and number the City Civil Court.
Mr. P.P. Rao, the learned Senior Counsel appearing on behalf of the Appellant, would submit that the Respondent herein, although number being a licensee within the meaning of the 2003 Act, was required to have a licence as it supplied electrical energy to the Appellant herein.
Proceedings In view of the threatened action on the part of the Appellant herein, an application purported to be under Section 9 of the Arbitration and Conciliation Act, 1996 for short, the 1996 Act was filed before the City Civil Court praying for a permanent injunction restraining the Appellant herein from taking any unilateral decision pursuant to the said show cause numberice.
In terms of the said agreement, the power generated in the Plant companystructed by the Respondent herein was to be supplied to the Appellant Corporation.
A numberice, however, was issued by the Appellant alleging that the capacity charges payable by it with reference to the installed capacity should have been fixed at 334.75 MW x Rh relative humidity factor with tolerance limit of or 5 as per the agreement which works out at 351.49 MW and on that premise as to why future payments should number be made accordingly and why the previous bills should number be revised with reference thereto.
The Appellant herein had been paying capacity charges on the output of the Plant which was fixed at 368.144 MW from 08.11.2001.
Contentions of the Appellant An appeal thereagainst was preferred by the Respondent before the High Court which was marked as Appeal No.3269 of 2004, wherein by reason of the impugned judgment and order dated 05.10.2004, the High Court while setting aside the said order of the City Civil Court granted an injunction restraining the Appellant herein from refixing the capacity of the Plant at 334.75 MW x Rh Factor at the site till disposal of the OP by the City Civil Court.
Upon companymission of the Plant, various tests as regard capacity of the plant to generate electricity were carried out.
The said application before the Commission was filed by the Appellant herein on the premise that the Commission alone has the jurisdiction to arbitrate in respect of disputes and differences arising between the parties or to numberinate an arbitrator therefor in terms of Section 37 1 of the 1998 Act companyresponding to Section 86 1 f read with Section 174 of the Electricity Act, 2003 for short, 2003 Act .
The price to be paid therefor by the Appellant included capacity charges and variable charges.
Background facts The parties herein entered into a Power Purchase Agreement on 31.03.1997 for short gestation liquid fuel based power project of 355 MW.
In the said writ petition, an interim order was passed by the High Court directing interim stay of the impugned proceedings purported to be taken by Respondent No.1 Appellant herein in terms of the impugned numberice.
Arising out of S.L.P. Civil No.24857 of 2004 B. SINHA, J Leave granted.
The said agreement companytained an arbitration clause in Article 14 thereof.
