9911796707
TMI Blog2005 (12) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 \026 5% as per the agreement which works out at 351.49 MW and on that premise as to why future payments should not be made accordingly and why the previous bills should not be revised with reference thereto. The Respondent by a letter dated 17.12.2003 demanded withdrawal of the said notice from the Appellant. 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 notice. Evidently, the said application was filed relying on or on the basis of the arbitration clause contained in the said Power Purchase Agreement. The Appellant, however, filed an application before the Andhra Pradesh Electricity Regulatory Commission (for short, 'the Commission') originally constituted under the Andhra P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the OP by 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 not 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. It was urged that in view of the provisions contained in the 1998 Act and the 2003 Act, not only the jurisdiction of the Civil Court is barred, any dispute and difference between the two licensees and/or two generating companies can be referred to an arbitration of the Commission only, as envisaged under Section 86(1)(f) of the 2003 Act and in that view of the matter, the High Court committed a serious error in passing an order of injunction. It was submitted that both under the 1998 Act as also under the 2003 Act, the Commission had the requisite jurisdiction to pass an interim order also and, thus, the said Acts are self-contained Codes. Mr. Rao contended that the High Court despite findings of the City Civil Court to the effect that it had no jurisdiction to pass an interim order in terms of Section 9 of the 1996 Act, did not address itself to the said question, could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll other provisions of PPA including tolerance limit; and thus cannot now turn round and contend that it would do so unilaterally without any award made in that behalf. The Respondent, thus, not only has a prima facie case keeping in view that that a sum of Rs. 132 crores is due to the Respondent, the balance of convenience also lies in its favour. Agreement Clause 35 of Article 1 of the said agreement defines 'Installed Capacity' to mean : "the maximum electrical generating capacity of the Project or a Generating Unit, as the case may be, in megawatts ("MW") as measured at the generator terminals, determined from time to time pursuant to the tests given in Schedule F, subject to adjustments for the Ambient Reference Conditions. Explanation 1 : Where the output of one or more Generating Units of the Project or of the Project as a whole, in final tests to be specified by the Board is higher than the output initially guaranteed by the manufacturer /supplier thereof, the output initially guaranteed by the manufacturer/supplier will be the installed capacity thereof, as from the date of such final tests. However, where the output of one or more Generating Units of the Project or of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) days. (c) The parties hereto agree to use their best efforts to attempt to resolve all disputes arising hereunder promptly, equitably and in good faith, and further agree to provide each other within reasonable access during normal business hours to any and all non-privileged records, information and data pertaining to any such dispute. 14.2 Arbitration (a) In the event that any dispute is not resolved between the Parties pursuant to Article 14.1, then such dispute shall be settled exclusively and finally by arbitration. It is specifically understood and agreed that any dispute that cannot be resolved between the parties, including any matter relating to the interpretation of this Agreement, shall be submitted to arbitration irrespective of the magnitude thereof, and the amount in dispute or whether such dispute would otherwise be considered justiciable or ripe for resolution by any court or arbitral tribunal. This Agreement and the rights and obligations of the Parties hereunder shall remain in full force and effect pending the award in such arbitration proceedings, which award shall determine whether and when termination of this Agreement if relevant shall become effective. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king measures conducive to the development and management of the electricity industry in an efficient, economic and competitive manner and for matters connected therewith or incidental thereto. 'Licensee' has been defined in Section 2(e) of the 1998 Act as under : "Licensee" or "licence holder" means a person licensed under section 14 of the Act to transmit or supply energy including APTRANSCO;" It is not in dispute that the Commission was constituted in terms of the Act. Section 37 of the said Act contains a non-obstante clause stating that notwithstanding anything contained in the 1996 Act, any dispute arising between the licensees shall be referred to the Commission. The Commission may proceed to act as arbitrator or nominate arbitrator or arbitrators to adjudicate and settle such disputes. Section 28 of the 1998 Act empowers the Commission to issue an interim order as it deems proper for securing compliance if it is satisfied that a licensee is contravening or is likely to contravene any relevant condition or requirement of the licence. The 2003 Act came into force with effect from 26.05.2003. Subsection (64) of Section 2 of the said Act defines the State Commission to mean, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Andhra Pradesh Electricity Reform Act, 1998. Analysis of the agreement and the statutory provisions The Appellant is a licensee within the meaning of both the 1998 Act and the 2003 Act. The question as to whether the Respondent should have taken a licence or permit under the 2003 Act or not is not a matter which requires our immediate attention. The Appellant is a licensee and the Respondent is a generating company in terms of the provisions of the 2003 Act. Section 37 of the 1998 Act deals with disputes between the licensees. Prima facie Section 50 of the 1998 Act, which bars the jurisdiction of the Civil Court keeping in view the language employed therein, is required to be read with Section 37 thereof. The resolution of the disputes between the parties rests upon the proper interpretation of the said Power Purchase Agreement and in particular the definition of 'installed capacity'. Who would arbitrate in respect of the said dispute is the principal question. It is no doubt true that in the event if it ultimately be held that the arbitration clause contained in the contract between the parties dated 31.03.1997 stood superseded in view of the provisions of the 1998 Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rame tariff and in that view of the matter the decision of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd. [(2002) 8 SCC 715] cannot be said to have any application whatsoever. The ratio laid down in Grid Corporation of Orissa Ltd. v. Indian Charge Chrome Ltd. [(1998) 5 SCC 438] whereupon Mr. Rao placed strong reliance is not applicable in this case as therein it was found that the High Court erroneously assumed that the Regulatory Commission had failed to arbitrate under Section 37(1) of the 1998 Act, which was found to be factually incorrect. In A.P. Gas Power Corporation Ltd. etc. v. A.P. State Regulatory Commission and Another etc. [(2004) 10 SCC 511], the question was as to whether the Appellant therein was required to take, under the law, a licence for utilization/sale or supply of power generated by it to the participating/shareholding industries or to their sister concerns or the industries to whom the shares of A.P. GPCL have been transferred by the participating industries. It was held that such licence was necessary, stating "\005It would surely be a supply to a non-participating industry and in that event it would be necessary to have a licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy." We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke [(1996) 1 All ER 853] opined: "In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue." In Colgate Palmolive (India) Ltd. v. Hindustan Leve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India. If injunction is refused in this proceeding, the interim order passed in the writ proceedings shall continue. It may give rise to a stalemate. It may violate the well-known rule of judicial comity. In 'A Treatise on The Law Governing Injunctions' by Spelling and Lewis' it is stated : "Sec. 8. Conflict and Loss of Jurisdiction. Where a court having general jurisdiction and having acquired jurisdiction of the subject-matter has issued an injunction, a court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction. There is no established rule of exclusion which would deprive a court of jurisdiction to issue an injunction because of the issuance of an injunction between the same parties appertaining to the same subject-matter, but there is what may properly be termed a judicial comity on the subject. And even where it is a case of one court having refused to grant an injunction, while such refusal does not exclude another coordinate court or judge from jurisdiction, yet the granting of the injunction by a second judge may lead to complications and retaliatory action\005" The High Court, therefore, while noticing the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge its contractual obligation. The Appellant being the only consumer, the Respondent has no other option but to supply electrical energy to it. In the event, the dispute is referred to the arbitrator, the equity between the parties can be adjusted. Without going into the correctness or otherwise of the claim of the Respondent, we may notice, that according to it, the Appellant owes a hefty sum of Rs. 132 crores to it. According to the Appellant, in the event, the disputes and differences between the parties are determined in its favour, it may be held, that it has paid an excess sum of Rs. 35 crores only. Clause 2 of Article 14 postulates that pending arbitration, the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceedings, which award shall determine whether and when termination of the said agreement if irrelevant shall become effective. It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
