Jasti Chelameswar, J.— This is an appeal under Section 125 of the Electricity Act, 2003 (hereinafter referred to as “the Act”) arising out of an order dated 31-10-2014 in Adani Power Ltd. v. Central Electricity Regulatory Commission 2014 SCC OnLine APTEL 191 of the Appellate Tribunal for Electricity, Delhi (hereinafter referred to as “the Appellate Tribunal”), constituted under Section 110 of the Act.
2. By the impugned order, the Appellate Tribunal declined to condone the delay of 481 days in preferring an appeal against the order dated 2-4-2013 of the Central Electricity Regulatory Commission (hereinafter referred to as the “Central Commission”), constituted under Section 76 of the Act.
3. The facts giving rise to this appeal are as follows: the appellant M/s Adani Power Ltd. is a subsidiary company of M/s Adani Enterprises Ltd. The appellant has established a power generating station with a total capacity of 4620 MW in the Special Economic Zone at Mundra in the State of Gujarat. The appellant entered into two Power Purchase Agreements (for short “PPA”) dated 2-2-2007 and 6-2-2007 by which the appellant agreed to supply 2 × 1000 MW power to Gujarat Urja Vikas Nigam Ltd., Respondent 4 herein. By another PPA dated 7-8-2008, the appellant agreed to supply 1424 MW power to Uttar Haryana Bijli Vitran Nigam Ltd. and Dakshin Haryana Bijli Vitran Nigam Ltd., Respondents 2 and 3 herein.
4. The appellant filed Petition No. 155/MP/2012 under Section 79 of the Act before the Central Commission with prayers as follows:
“(a) to evolve a mechanism to restore the applicant to the same economic condition prior to occurrence of subsequent events mentioned in respective Parts I and II hereinabove by adjudicating the disputes between the applicant and the respondent(s) in relation to regulate including changing and/or revising the price/tariff under PPAs dated 7-8-2008 with Uhbvnl and Dhbvnl and 2-2-2007 with Guvnl;
(b) in the alternative, to declare that the applicant is discharged from the performance of the PPAs on account of frustration of the PPAs due to subsequent events in respective Parts I and II;
(c) this Hon'ble Central Commission be pleased to declare that the revised tariff shall be applicable from the Scheduled Commercial Operation Date (SCoD) of the PPAs;
(d) that during the pendency of the present application the Hon'ble Central Commission may direct the respondent(s) to procure power on the cost-plus basis, alternatively, the Hon'ble Central Commission may suspend the operation of the PPAs till the final disposal of the application;
(e) pass such further or other orders as the Hon'ble Central Commission may deem just and proper in the circumstances of the case.”
5. The substance of the petition is that due to various reasons stated by the appellant in its petition, the appellant will not be able to supply power to Respondents 2 to 4 at the rates agreed between the appellant and those respondents by the abovementioned PPAs. Therefore, the appellant sought the abovementioned reliefs.
6. The appellant submitted before the Central Commission that it is entitled for the various reliefs on three distinct grounds, they are:
“(1) That the subsequent events qualify as force majeure as per Article 12 of the PPAs, therefore, the contracts are frustrated;
(2) That the subsequent events tantamount to change of law as contemplated under Article 13 of the PPAs, therefore, the appellant is relieved of its obligation to perform the contracts; and
(3) That the Central Commission has power to grant appropriate relief to the appellant in exercise of its regulatory powers under Section 79 of the Act by making necessary modifications in the terms of the PPAs.
7. By order dated 2-4-2013, the Central Commission rejected the first two of the abovementioned submissions and accepted the third submission giving certain directions for the constitution of a committee for working out and recommending the compensatory tariff and to submit a report to the Commission by 30-4-2013. The order was admittedly received by the appellant on 8-4-2013.
8. Aggrieved by the said order, Respondents 2 and 3 herein preferred Appeal No. 100 of 2013 before the Appellate Tribunal along with an application to permit them to participate in the proceedings of the abovementioned Committee without prejudice to their contentions in the appeal.
9. On 16-9-2013, the Committee submitted its report before the Central Commission. Eventually the Central Commission passed an order dated 21-2-2014 quantifying the compensatory tariff.
10. The appeal filed by Respondents 2 and 3, underwent a number of adjournments and is still pending.
11. On 17-4-2014, the appellant herein filed cross-objections in the abovementioned Appeal No. 100 of 2013 challenging that part of the order dated 2-4-2013 of the Central Commission by which the Commission declined to accept the pleas of the appellant on the grounds of “force majeure” and “change of law”.
12. On 22-4-2014, Respondents 2 and 3 preferred Appeal No. 98 of 2014 challenging the correctness of the order dated 21-2-2014 of the Central Commission. Respondent 4 also preferred Appeal No. 116 of 2014 aggrieved by the order dated 21-2-2014.
13. By order dated 1-8-2014, the Appellate Tribunal dismissed the cross-objections of the appellant herein as not maintainable. On 16-9-2014, the appellant preferred Appeal No. DFR No. 2355 of 2014 before the Appellate Tribunal against that part of the order dated 2-4-2013 which went against the appellant. Obviously, there was a delay in preferring that appeal. Therefore, the appellant filed an application bearing IA No. 380 of 2014 seeking condonation of delay in preferring the appeal which was rejected by the impugned order 2014 SCC OnLine APTEL 191. Hence, the instant appeal.
14. The issue before this Court is limited. It is the correctness of the decision of the Appellate Tribunal in declining to condone the delay in preferring the appeal against the order dated 2-4-2013 of the Central Commission.
15. However, elaborate submissions were made regarding the scope of Order 41 Rule 22 of the Code of Civil Procedure, 1908 (for short “CPC”), and its applicability to an appeal under Section 111 of the Act by the appellant relying upon earlier decisions of this Court. The respondents submitted that such an enquiry is wholly uncalled for as the cross-objections of the appellant in Appeal No. 100 of 2013 stood rejected and became final.
16. Lastly, the learned counsel for the appellant submitted that even if this Court comes to the conclusion that the appellant has not made out a case for condonation of delay in preferring an appeal against the order dated 2-4-2013 of the Central Commission, the appellant is entitled to argue in the pending Appeals Nos. 98 and 116 of 2014 both the grounds of “force majeure” and “change of law” not for the purpose of seeking the relief of a declaration of the frustration of the contracts between the appellants and the respondents, thereby relieving the appellant of his obligations arising out of the contracts, but only for the purpose of seeking the alternative relief of compensatory tariff. In other words, the appellant's submission is that the facts which formed the basis of the submission of the frustration of contracts are also relevant for supporting the conclusion of the National Commission that the appellant is entitled for the relief of compensatory tariff.
17. We agree with the respondents that we are not required to go into the question of the applicability of Order 41 Rule 22 in the instant appeal as the decision of the Appellate Tribunal to reject the cross-objections of the appellant by its order dated 1-8-2014 has become final and no appeal against the said order is pending before us.
18. We are also not required to go into the question whether the order of the Central Commission dated 2-4-2013 by which it declined to grant a declaration of frustration of the contracts either on the ground of “force majeure” or on the ground of “change of law” is independently appealable, since no such appeal even if maintainable, is preferred by the appellant.
19. The question whether the appellant made out a case for condonation of delay in preferring the appeal before the Appellate Tribunal, in our opinion, need not also be examined by us in view of the last submission made by the appellant. If the appellant is not desirous of seeking a declaration that the appellant is relieved of the obligation to perform the contracts in question, the correctness of the decision of the Appellate Tribunal in rejecting the application to condone the delay in preferring the appeal would become purely academic. We are of the opinion that so long as the appellant does not seek a declaration, such as the one mentioned above, the appellant is entitled to argue any proposition of law, be it “force majeure” or “change of law” in support of the order dated 21-2-2014 quantifying the compensatory tariff, the correctness of which is under challenge before the Appellate Tribunal in Appeal No. 98 of 2014 and Appeal No. 116 of 2014 preferred by the respondents, so long as such an argument is based on the facts which are already pleaded before the Central Commission.
20. The appeal is accordingly disposed of, with no order as to costs.