TaxTMI 
TaxTMI 
2016 (12) TMI 1763
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....n and Udita Singh, Advs. Fot the Respondent : None JUDGMENT Rohinton Fali Nariman, J. 1. These appeals have been argued over a number of days, but ultimately the points raised in them lie within a narrow compass. 2. On 19.1.2005, the Central Government, in exercise of powers Under Section 63 of the Electricity Act, 2003 issued guidelines for a tariff based competitive bid process to be initiated by distribution licensees/procurers for procurement of power from generating companies. The electricity to be procured by such procurers is for the purpose of distribution and retail supply to consumers generally. On 10.2.2006, in pursuance of these guidelines, procurers in different States, namely, Appellants 1 to 3 and Respondents 5 to 15 (in Civil Appeal Nos. 5239-5240 of 2016) nominated Power Finance Corporation Limited, a Government of India undertaking as the Nodal Agency to complete a competitive bid process for development of an ultra mega power project based on linked coalmines using super critical technology of units of 660 mega watts (MW) each, plus or minus 20%, in Sasan District, Singrauli, Madhya Pradesh. On 10.2.2006, Sasan Power Limited was incorporated as a s....
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....e informed that if the COD is said to be on 31.3.2013, as has been held by the Appellate Tribunal, the consumers would have to pay a sum of over ` 1000 crores, being the differential tariff that would apply. 4. The date for commissioning the first unit was fixed under the PPA as 7th May, 2013. However, under Schedule 11 thereof, this date was preponed to 27th November, 2012. As Sasan kept postponing this date, it appears that the commissioning tests for generating Unit No. 3 commenced from 20.3.2013. Various emails were exchanged from 27.3.2013 to 30.3.2013 between Sasan and the Western Region Load Dispatch Centre (hereinafter referred to as "the WRLDC"), a statutory authority under the Electricity Act, 2003. It is the case of Sasan that though they were ready to deliver electricity on 31.3.2013 at 95% of the contracted capacity of 620 MW of the unit, they could not do so as WRLDC did not give them the necessary green signal to go ahead. They relied heavily upon the independent engineer's test certificate dated 30.3.2013 to show that a COD took place on the following day, which we will consider in some detail later. At this stage, suffice it to say that a petition was filed ....
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....d their right to demand performance at 95%, and that the performance of Unit No. 3, which was only roughly 17% of its contracted capacity, was accepted by all the procurers, and that therefore there was a waiver of this essential condition, which would then entitle the generator to treat 31.3.2013 as the date on which commercial operation of Unit No. 3 commenced. It is the correctness of this judgment which has been assailed by the various Appellants before us. 7. Mr. Jayant Bhushan, learned senior Counsel, Mr. Gopal Jain, learned senior Counsel, Mr. M.G. Ramachandran, learned Counsel, Mr. Purusha Indra Kavrar, learned AAG, and Mr. Alok Shankar, learned Counsel appearing for the Appellants have relied heavily on Article 6.3.1 read with Schedule 5 of the PPA, and stated that this is an Article which does not merely reflect the individual rights and liabilities of the generator and procurers of electricity but would also sound in public interest inasmuch as the declaration of COD would have effect on the tariff that is payable by consumers generally. They, therefore, argued that Article 6.3.1 cannot be waived as a matter of law. They also argued that it cannot also be waived as a ....
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....curers unequivocally stated that any time upto 31.3.2013, the power generation should begin from Unit No. 3. This was because the moment such power generation began, whether it was 69 paise or 70 paise for the second year, the aforesaid tariff was much, much lower than what the procurers would have to pay otherwise. It was their argument that it was only at the behest of the procurers themselves that the COD was declared on 31.3.2013. They further argued that on a correct reading of emails and letters exchanged between the parties, the lead procurer and all other procurers had actually and unequivocally waived the requirement of 95% of contracted capacity demand and that the Appellate Tribunal was right in this behalf. Countering the arguments of the Appellant, they referred to and relied upon Section 63 of the Indian Contract Act, 1872 to buttress their submission that waiver is a right granted by the Contract Act and does not depend upon the PPA. Therefore, whatever the construction of Article 18.3 of the PPA, it is clear that the Contract Act itself gives them this right which the procurers themselves have exercised in accordance with law, for the very good reason that they want....
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....mmissioned in accordance with Schedule 5 at its own cost, risk and expense. 6.2.2 The Seller shall give all the Procurers and the Independent Engineer not less than ten (10) days prior written notice of Commissioning Test of each Unit. 6.2.3 The Seller (individually), the Procurers (jointly) and the Independent Engineer (individually) shall each designate qualified and authorized representatives to witness and monitor Commissioning Test of each Unit. 6.2.4 Testing and measuring procedures applied during each Commissioning Test shall be in accordance with the codes, practices and procedures mentioned in Schedule 5 of this Agreement. 6.2.5 Within five (5) days of a Commissioning Test, the Seller shall provide the Procurers (jointly) and the Independent Engineer with copies of the detailed Commissioning Test results. Within five (5) days of receipt of the Commissioning Test results, the Independent Engineer shall provide to the Procurers and the Seller in writing, his findings from the evaluation of Commissioning Test results, either in the form of Final Test Certificate certifying the matters specified in Article 6.3.1 or the reasons for non-issuan....
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....erred to in Article 6.3.3 and Quoted Capacity Charges shall be paid with respect to such reduced Contracted Capacity; b) The Quoted Non Escalable Capacity Charge (in Rs. /kwh) shall be reduced by the following in the event Tested Capacity is less than ninety five (95%) per cent of its Contracted Capacity as existing on the Effective Date: Rs. 0.25/kwh x [1 - {(Tested Capacity of all Commissioned Units + Contracted Capacity of all Units not Commissioned at the Effective Date)/Contracted Capacity of all Units at the Effective Date}) c) the Seller shall not be permitted to declare the Available Capacity of the Unit at a level greater than its Tested Capacity; d) the Availability Factor of the derated Unit shall be calculated by reference to the reduced Contracted Capacity; and e) the Capital Cost and each element of the Capital Structure Schedule shall be reduced in proportion to the reduction in the Contracted Capacity of the Power Station as a result of that de-rating (taking into account the Contracted Capacity of any Unit which has yet to be Commissioned). (ii) If at the end of Initial Performance Retest Period or the date of the eighth....
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....on, where necessary. 18.3. No Waiver A valid waiver by a Party shall be in writing and executed by an authorized representative of that Party. Neither the failure by any Party to insist on the performance of the terms, conditions, and provisions of this Agreement nor time or other indulgence granted by any Party to the other Parties shall act as a waiver of such breach or acceptance of any variation or the relinquishment of any such right or any other right under this Agreement, which shall remain in full force and effect. Schedule 5: Commissioning and Testing 1.1 Performance Test i. (a) The Performance Test shall be conducted under any and all ambient conditions (temperature, humidity etc.) and any and all Fuel qualities that may exist during the time of the Performance Test and no corrections in final gross and net output of the Unit will be allowed as a result of prevailing ambient conditions or Fuel quality. (b) The correction curves will only be used if the Grid System operation during the Performance Test exceeds Electrical System Limits. (c) The Performance Test shall be deemed to have demonstrated the Contracted....
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.... differences associated with each ramp rate within the turbine while maintaining all other operational parameters within equipment limits. iv. Further, as a part of the Performance Test, the Unit shall be tested for compliance with parameters of Supercritical Technology. 1.2 Testing and Measurement procedures applied during Performance Test shall be in accordance with codes, practices or procedures as generally/normally applied for the Performance Tests. 1.3 The Seller shall comply with the prevalent Laws, Rules and Regulations as applicable to the provisions contained in this Schedule from time to time. Schedule 11: Quoted Tariff 10. It is also necessary to set out the relevant provisions of the Electricity Act, 2003. Sections 28, 29, 61, 62 and 63 of the Electricity Act, 2003 read as under: Section 28. Functions of Regional Load Despatch Centre: (1) The Regional Load Despatch Centre shall be the apex body to ensure integrated operation of the power system in the concerned region. (2) The Regional Load Despatch Centre shall comply with such principles, guidelines and methodologies in respect of the wheeling and opti....
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....any dispute arises with reference to the quality of electricity or safe, secure and integrated operation of the regional grid or in relation to any direction given under Sub-section (1), it shall be referred to the Central Commission for decision: Provided that pending the decision of the Central Commission, the directions of the Regional Load Despatch Centre shall be complied with by the State Load Despatch Centre or the licensee or the generating company, as the case may be. (6) If any licensee, generating company or any other person fails to comply with the directions issued under Sub-section (2) or Sub-section (3), he shall be liable to a penalty not exceeding rupees fifteen lacs. Section 61. Tariff Regulations: The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing so, shall be guided by the following, namely: (a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees; (b) the generation, transmission, distribution and supply of electricity....
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....n of tariff. (3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer's load factor, power factor, voltage, total consumption of electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required. (4) No tariff or part of any tariff may ordinarily be amended, more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified. (5) The Commission may require a licensee or a generating company to comply with such procedures as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover. (6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate....
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....ation of a contract is mentioned. Alteration is understood here, in the facts of the present case, in the sense of amendment. It is settled law that an amendment to a contract being in the nature of a modification of the terms of the contract must be read in and become a part of the original contract in order to amount to an alteration Under Section 62 of the Indian Contract Act. This is clear from Juggilal Kamlapat v. N.V. Internationale Crediet-En-Handels Vereeninging 'Rotterdam' AIR 1955 Cal 65 in paragraph 15 of which it is stated: The effect of the alterations or arrangement; in the language of Viscount Haldane in Morris v. Baron & Co. (1) (1918 Appeal Cases, 1 at 17), "a new contract containing as an entirety the old terms together with and as modified by the new terms incorporated." The modifications are read into and become part and parcel of the original contract. The original terms also continue to be part of the contract and are not rescinded and/or superseded except in so far as they are inconsistent with the modifications. Those of the original terms which cannot make sense when read with the alterations must be rejected. In my view the arbitration Cla....
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....s an election to the pawner. He may file a bill in equity against the pawner for a foreclosure and sale; or, he may proceed to sell ex mero motu, upon giving notice of his intention to the pledger. The terms of an instrument of pledge, such as there is in this case, giving an unqualified power of sale, are inconsistent with the provisions of Section 176 of the Indian Contract Act, and, therefore, by virtue of Section 1 of that Act must give place to the express provisions of the Act: See Chitguppi & Co. v. Vinaya Kashinath [(1920) 45 Bom. 157 : S.C. 22 Bom L.R. 959]. The group of Sections in the Indian Contract Act dealing with bailment commence with Section 148, and it is to be observed that in the Sections 152, 163, 171 and 174 the power is given to contract out of the Act. In the former Section the words are "in the absence of any special contract" and in the three latter Sections the expression used is "in the absence of any contract to contrary". In my opinion, therefore, except in these four sections, the provisions of the Act with regard to bailment are mandatory: see The Co-operative Hindustan Bank, Ltd. v. Surendranath De [(1931) 59 Cal. 667.]. 17. It ....
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....rts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent. [para 13] 20. Regard being had to the a....
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....n; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. [para 9] 24. It is thus clear that if there is any element of public interest involved, the court steps in to thwart any waiver which may be contrary to such public interest. 25. On the facts of this case, it is clear that the moment electricity tariff gets affected, the consumer interest comes in and public interest gets affected. This is in fact statutorily recognized by the Electricity Act in Sections 61 to 63 thereof. Under Section 61, the appropriate commission, when it specifies terms and conditions for determination of tariff, is to be guided inter alia by the safeguarding of the consumer interest and the recovery of t....
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.... Para 5.4 then speaks of a model power purchase agreement proposed to be entered into with the seller of electricity as follows: (ii) Model PPA proposed to be entered into with the seller of electricity. The PPA shall include necessary details on: • Risk allocation between parties; • Technical requirements on minimum load conditions; • Assured off take levels; • Force majeure clauses as per industry standards; • Lead times for scheduling of power; • Default conditions and cure thereof, and penalties; • Payment security proposed to be offered by the procurer. 28. Paragraph 5.16 then goes on to state: Deviation from process defined in the guidelines 5.16 In case there is any deviation from these guidelines, the same shall be with the prior approval of the Appropriate Commission. The Appropriate Commission shall decide on the modifications to the bid documents within a reasonable time not exceeding 90 days. 29. A perusal of the CERC tariff adoption order in the present case dated 17.10.2007 makes it clear that the tariff is adopted by the Commission only because ....
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....or one day. However, any waiver of the requirement of Schedule 5 would definitely impact the generation of electricity at the mandated percentage of contracted capacity as also the amounts payable by consumers, and would therefore affect the public interest. This being the case, this is not a case covered by the judgments cited on behalf of Sasan, in particular the judgment of this Court in Commissioner of Customs, Bombay v. Virgo Steels Bombay (2002) 4 SCC 316, in which it has been held that even the mandatory requirement of a statute can be waived by the party concerned, provided it is intended only for his benefit. This case would fall within the parameters of the other judgments referred to above, and would therefore be governed by judgments which state that any waiver of the requirements of Article 6.3 and Schedule 5 would ultimately impact consumer interest and therefore the public interest. Such waiver therefore cannot be allowed to pass muster on the facts of the present case. 32. Since the result of this case also depends upon the correct reading of Article 6 read with Schedule 5 of the PPA, and whether there has been waiver in fact in the sense of being the intentional....
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....rocurers receives a final test certificate of the independent engineer as per Article 6.3.1. It is thus clear that the scheme of Article 6 is that a unit cannot be said to have a commercial operation date unless and until it is first synchronized with the grid and commissioned after meeting the parameters mentioned in Schedule 5 of the PPA. 34. Article 6.3.3 refers to performance tests of a unit during the period of the PPA. If Under Article 6.3.3 after COD has been achieved in a unit, an increased tested capacity over and above that provided in 6.3.1 (b) is achieved in a subsequent performance test, certain consequences follow. Equally, if after COD has been obtained in a unit, and the most recent performance test mentioned during the working of the PPA has been conducted, and it is found that in such test a figure less than contracted capacity is achieved, the unit shall be de-rated with certain consequences which are mentioned in Article 6.3.4 read with Article 8.2.2. The scheme of Article 6 therefore read as a whole appears to be that COD cannot be achieved until the parameters mentioned in Schedule 5 are achieved and there is a final test certificate to that effect. The sub....
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....13 leaves much to be desired. Since the Commission has castigated this certificate and the Appellate Tribunal has absolved the Independent Engineer completely, it is necessary to set out this certificate in full. Lahmeyer International (India) Pvt. Ltd. Corporate Office & Correspondence address: Intec House, 37 Institutional Area, Sector 44, Gurgaon-122002, National Capital Region (INDIA) CERTIFICATE OF INDEPENDENT ENGINEER (IE) Test Certificate of Performance Test for the Commercial Operation Declaration of the First Unit (Unit-3 of 660 MW) of SASAN ULTRA MEGA POWER PROJECT (6x660 MW) This Certificate is issued by IE with reference to Article 6.3.1 of PPA executed on 7th August 2007 between Sasan Power Limited (SPL, the Seller) and the Power Procurers. Based on the Performance Test witnessed by IE from 27th March 2013 to 30th March 2013 and review of the detailed Performance Test results provided by the Seller, it is certified that: 1. The Unit was synchronized with the grid at 15.18 hrs on 27th March 2013 after receiving the permission of WRLDC. 2. The Seller (SPL) had submitted the power injection Schedule to WRLD....
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.... Rate above 50% of the rated load in accordance with Schedule 4 of PPA. However, as per the certificate provided by Original Equipment Manufacturer of Boiler, Turbine & Generator, minimum ramp up and ramp down rate of 1% of Contracted Capacity per minute can be achieved. 7. The Unit could not be tested for the following parameters of Supercritical Technology at the steam turbine inlet as defined in PPA due to grid restriction. i) Main Steam Pressure: 247 kg/cm2 (abs) ii) Main Steam Temperature: 535 deg C. iii) Reheat Temperature: 565 deg C. However, the Unit was found to operate with the following parameters at the steam turbine inlet during one hour operation from 1200 hrs to 1300 hrs on 29th March 2013. i) Main Steam Pressure: 77.36 Kg/cm2 (abs) ii) Main Steam Temperature: 535.64 deg. C. iii) Reheat Temperature: 575.04 deg C. 8. All the systems and equipment have been commissioned and are operational with two coal mills which were taken into service. The balance mills could not be taken into service due to the restrictions imposed by the grid. The furnace was found to operate stably even at a low loa....
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....hat as a part of the performance test, the seller shall demonstrate that the unit meets the functional specifications for ramping rate as mentioned in Schedule 4, which was again conspicuous by its absence. According to the Independent Engineer, "... the Unit 3 is certified to have achieved Commercial Operation, with a tested capacity 101.38 MW" after carrying out the commissioning test in accordance with Article 6 and Schedule 5 of the PPA. In the certificate dated 30.3.2013 he has stated that on witnessing the performance test from 27.03.2013 to 30.03.2013, the tested capacity of the Unit is 101.38 MW. However, it is clearly recorded that Unit was operated beyond 100 MW only from the morning of 28.03.2013. In the chart on the performance test, the Independent Engineer has noted that 101.38 MW is operated only from 06.00 a.m. on 28.03.2013. Under Article 6 read with Schedule 5 ... "Unit shall be deemed to have passed if it operates continuously for 72 consecutive hours at or above 95% of its contracted capacity as existing on the Effective Date." Even according to the Independent Engineer, 101.38 MW was injected only at 06.00 a.m. on 28.03.2013. Such a tested capacity of 101.38 MW....
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....ling of power from Unit No. 3 of Sasan UMPP. As lead procurer, the Performance Test, as certified by the independent Engineer for a capacity of 101.38 MW (ex-bus), is acceptable to us under Clause 6.3.4 of the PPA. You may kindly go for Performance Test under notice to us for increasing the capacity beyond certification by the Independent Engineer in accordance with Clause 6.3.3 of the PPA. As provided in Article 6.3.4 of the PPA, in the period between this performance test and the next performance test, the unit's contracted capacity and available capacity would be considered as 101.38 MW (ex-bus) and its availability factor shall be calculated by reference to 101.38 MW. The charges payable for power shall be as laid down in Article 6.3.4 of the PPA. In case the unit is in position to produce beyond 101.38 MW, the additional quantity would be scheduled in favour of the Procurers under proviso to Article 11.1 of the PPA, until the next Performance Test is conducted Under Article 6.3.3. Thanking you, Yours faithfully, Sd/- Executive Director (IPC) 42. The two emails read together would show that the lead procurer made it clear that....
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....lear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is not as per Article 6.3.1, and is not acceptable. The last sentence of this very email then refers to Clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a 'without prejudice' acceptance of de-rated power, being a non-acceptance of the test certificate dated 30.3.2013 coupled with a desperate attempt to somehow get whatever power is available. But this does not amount to a clear and unequivocal intention to relinquish a known right. 44. It is not necessary to burden this judgment with various other acceptance emails of the other DISCOMS inasmuch as they are all in terms of the email sent by the lead procurer. Haryana DISCOM has sent an email dated 12.4.2013 in which, even while accepting derated power, it has accepted the same without prejudice to its rights. 45. In contrast to the aforesaid emails, the acceptance emails ....
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....ates that there are no guidelines in respect of declaration of COD of the generators who are not governed by CERF (Tariff Regulations) 2009 and in the Petition, WRLDC prays to the Central Commission for issuing Regulations and guidelines in that behalf. 48. We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned Counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunal's judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatory Commission. 49. Shri Sibal's last argument is that there is no substantial question of law so as to attract Section 125 of the Electricity Act, 2003 in these appeals. We are afraid that we cannot agree. One substantial question of law is whether, when public interest is involved, waiver can at all take place of a right in favour of the generator of electricity under a PPA if the right also has an impact on consumer interest. This substantial question of law has been answered by us in the course of the judgment. We have also pointed ....
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.... provided further that (ii) (ii) The last Contract Year of this Agreement shall end on the last day of the term of this Agreement; Means (i) for the first Unit, 620.4 MW; (ii) for the second Unit, 620.4 MW; (iii) for the third Unit, 620.4 MW; (iv) for the fourth Unit, 620.4 MW; (v) for the fifth Unit, 620.4 MW and (vi) for the sixth Unit 620.4 MW rated net capacity at the Interconnection Point, and in relation to the Power Station as a whole means 3722.4 MW rated net capacity Interconnection Point, or such rated capacities as may be determined in accordance with Article 6.3.4 or Article 8.2 of this Agreement; at the Means the date of signing Document 3 "Declared Capacity of this Agreement by last of all the Parties; In relation to a Unit or the Power Station at any time means the net capacity of the Unit or the Power Station at the relevant time (expressed in MW at the Interconnection Point) as declared by the Seller in accordance with the Grid Code and dispatching procedures as per the Availability Based Tariff; "Final Certificate Test Means ....
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....rator, steam turbine, generator and associated auxiliaries of the Station based Power on Supercritical Technology; Document 6 Contra ct Year Commence End Date of Quoted Quoted Quoted Quoted ment Date of Contract Contract Year | Year Non- Escalable Non- Indexed Escalable Capacity Indexed Capacity Charges Energy Energy Charges Charges (Rs. 1kwh) Charges (Rs.1kwh) (Rs.1kwh) 12 27 Nov 2012 31 May 2013 0.21 0.001 0.575 1-Apr-2013 31-Mar-2014 0.125 Same as 0.575 Above (Rs.1kwh) 0.001 Same as Above 3 1-Apr-2014 31-Mar-2015 0.163 Same as 1.148 Same as Above Above 4 1-Apr-2015 31-Mar-2016 0.171 Same as 1.148 Same as Above Above 5 1-Apr-2016 31-Mar-2017 0.169 Same as 1.148 Same as Above Above 6 1-Apr-2017 31-Mar-2018 0.169 Same as 1.148 Same as Above Above 7 1-Apr-2018 31-Mar-2019 0.169 Same as 1.148 Same as Above Above 8 1-Apr-2019 31-Mar-2020 0.168 Same as 1.148 Same as Above Above ....