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Adani Power Limited v. Gujarat Urja Vikas Nigam Limited
Factual and Procedural Background
Adani Power Limited filed a petition before the State Commission seeking a declaration that it was under no obligation to supply contracted capacity to Gujarat Urja Vikas Nigam Limited (GUVNL) prior to the Scheduled Commercial Operation Date (SCOD) of 02.02.2012, and that it was free to sell power outside the Power Purchase Agreement (PPA) to third parties before SCOD. The State Commission ruled in favour of Adani Power, deciding that there was no such obligation prior to SCOD. GUVNL appealed this decision to the Appellate Tribunal for Electricity, which upheld the State Commission's ruling by a judgment dated 04.10.2012.
During the pendency of the petition before the State Commission, Adani Power and GUVNL reached an understanding that Adani Power could sell power on the open market to third parties and pay GUVNL the excess realization above the tariff receivable under the PPA. If the dispute were decided in favour of Adani Power, the excess amount paid to GUVNL along with interest would be refunded by GUVNL to Adani Power.
This Execution Petition was filed by Adani Power under Section 120(3) of the Electricity Act, 2003 read with Part II and Order XXI of the Code of Civil Procedure, 1908, seeking execution of the judgment and decree dated 04.10.2012 to obtain a refund of Rs. 371.50 crores along with interest, based on the above understanding.
Legal Issues Presented
- Whether the Appellate Tribunal for Electricity can pass an order for execution of the monetary claim of Adani Power based on the judgment dated 04.10.2012, which did not address the monetary claim.
- Whether Adani Power is entitled to a refund of Rs. 371.50 crores along with interest as per the understanding between the parties during the pendency of the petition.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Tribunal noted that neither the State Commission's order nor the Tribunal's judgment dated 04.10.2012 addressed or decided on the monetary claim raised by Adani Power. The monetary claim was disputed both in terms of admissibility and quantum by the Respondent. Since the judgment sought to be executed did not contain any finding on the monetary claim, the Tribunal held that it was not in a position to pass any order in the execution petition.
Holding and Implications
The Execution Petition is dismissed.
The Tribunal's decision means that Adani Power cannot seek execution of the monetary claim under the existing judgment. However, Adani Power is at liberty to seek remedy at the Appropriate Forum. The decision directly affects the parties by denying execution relief but does not establish any new precedent.
Appellate Tribunal for Electricity (Appellate Jurisdiction) E.P. No. 1 of 2014 in
Appeal No. 185 of 2011
Dated: 12th March, 2015
Present: Hon'ble Mr. Rakesh Nath, Technical Member Hon'ble Mr. Justice Surendra Kumar, Judicial Member In the matter of :
Adani Power Limited .... Petitioner/Appellant 9thFloor, Shikhar, Mithakali Six Road Navarangpura, Ahmedabad - 380 009 Versus
Gujarat Urja Vikas Nigam Limited .... Respondent Sardar Patel Bhawan, Race Course Circle Vadodra - 39007, Gujarat
Counsel for the Appellant (s): Mr. Amit Kapur Ms. Poonam Verma
Mr. Gaurav Dudeja
Mr. M. Deliwala
Mr. Malav Deliwala
Counsel for the Respondent (s): Mr. M G Ramachandran Mr. Anand K Ganesan,
Ms. Swapna Seshadri
Ms. Swagatika Sahoo
Ms. Anushree Bardhan
Mr. A K Dueby
Mr. P.J. Jari
Mr. Y.T. Patel
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ORDER
Rakesh Nath, Technical Member
This Execution Petition has been filed by Adani Power Limited under Section 120(3) of the Electricity Act, 2003 read with Part II and order XXI of Code of Civil Procedure 1908 seeking execution of the judgment and decree dated 04.10.2012 passed by this Tribunal in Appeal no. 185 of 2011.
2. Adani Power Limited had filed a Petition before the State Commission seeking declaration and direction that they were under no obligation to supply contracted capacity from their power project to the Respondent prior to the Schedule Commercial Operation Date ("SCOD") and that Adani Power was free to sell power outside the Power Purchase Agreement ("PPA") to any third party prior to the SCOD. The State Commission allowed the Petition and decided that Adani Power was under no obligation to supply the contracted capacity to the Respondent prior to SCOD which is 02.02.2012. The Respondent GUVNL filed an Appeal before this Tribunal and the Tribunal by judgment dated 04.10.2012 upheld the decision of the State Commission.
3. According to Adani Power, during the pendency of the Petition before the State Commission, Adani Power and the Respondent reached an
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understanding that in the intervening period Adani Power may sell power in open market to third party and pay to the Respondent excess realization from such third party sale above the tariff receivable under the PPA. In case the dispute is decided in favour of Adani Power the excess realization paid to the Respondent along with interest will be paid back by the Respondent to Adani Power.
4. In the present Execution Petition, Adani Power is seeking direction for a refund of Rs. 371.50 crores along with interest as per their computation according to the above understanding.
5. We have heard Shri Amit Kapur, Learned Counsel for the Petitioner and Shri M.G. Ramachandran, Learned Counsel for the Respondent.
6. We find that neither in the State Commission's order impugned before this Tribunal nor in the judgment of this Tribunal dated 04.10.2012, no decision on the monetary claim of Adani Power was made. The monetary claim of Adani Power is disputed both on the admissibility of the claim as well as on the quantum claimed by the Respondent. We are not in a position to pass any order in this execution petition as no finding has been made by this Tribunal regarding monetary claim of Adani Power in the judgment dated 04.10.2012.
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7. In view of above, we dismiss the Execution Petition. However, Adani Power is at liberty to seek remedy at the Appropriate Forum.
8. Pronounced in the open court on this 12th day of March, 2015. (Justice Surendra Kumar) (Rakesh Nath)
Judicial Member Technical Member
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REPORTABLE/NON-REPORTABLE
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