1
BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY
COMMISSION, AT NEW DELHI
PETITION NO. MP/2022
IN THE MATTER OF:
Petition under Section 79(1)(b) read with Section 79(1)(f) of the Electricity
Act, 2003 seeking, inter alia, quashing of the purported invoice dated
14.12.2021 raised by the Respondent No. 1 on the Petitioner and for refund of
Rs 59,58,745 wrongfully and illegally deducted by the Respondents
AND IN THE MATTER OF:
DB Power Ltd. ... PETITIONER
VERSUS
NTPC Vidyut Vyapaar Nigam Ltd. and Ors ...RESPONDENTS
PAPERBOOK
[FOR INDEX KINDLY SEE INSIDE]
KHAITAN & KHAITAN
ADVOCATE FOR THE PETITIONER
2
BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY
COMMISSION, AT NEW DELHI
PETITION NO. MP/2022
IN THE MATTER OF:-
DB Power Ltd. ... PETITIONER
VERSUS
NTPC Vidyut Vyapaar Nigam Ltd. ...RESPONDENT
INDEX
S. No. PARTICULARS PAGE NO.
1. Petition under Section 79(1)(b) read with Section 4 - 18
79(1)(f) of the Electricity Act, 2003 seeking, inter
alia, quashing of the purported invoice dated
14.12.2021 raised by the Respondent No. 1 on the
Petitioner and for refund of Rs 59,58,745 wrongfully
and illegally deducted by the Respondents along with
supporting affidavit
2. Annexure A: True copy of the RFP issued by the
Respondent No. 2 19 – 38
3. Annexure B: True copy of Letter dated 14.09.2021
by the Petitioner granting authorisation to the
39
Respondent No. 1 to participate in the tender
invited by Respondent No. 2
4. Annexure C: LOI dated 01.10.201 issued by
40
Respondent No. 2 in favour of Respondent No. 1
5. Annexure D: LOI dated 04.10.201 issued by
41
Respondent No. 1 in favour of Petitioner
6. Annexure E: True copy of invoice dated 14.12.2021
42 - 45
raised by Respondent No. 1
7. Annexure F: True copy of letter dated 15.12.2021
46 - 47
by the Petitioner to Respondent No. 1.
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8. Annexure G: True copy of Respondent No. 1’s letter
48
dated 16.12.2021 to the Petitioner.
9. Annexure H: True copy of Respondent No. 1’s letter
49
dated 21.12.2021 to the Respondent No. 2.
10. Vakalatnama along with Board Resolution 50 - 51
11. Form-I 52 - 55
PETITIONER
FILED BY
Deepak Khurana
Khaitan & Khaitan
Advocates for the Petitioner
A-38, Kailash Colony
New Delhi- 110048
Place: New Delhi Phone: 011-49774545/9811231287
Date: 01.04.2022 Email:
[email protected] 4
BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY
COMMISSION, AT NEW DELHI
PETITION NO. MP/2022
IN THE MATTER OF:
Petition under Section 79(1)(b) read with Section 79(1)(f) of the Electricity
Act, 2003 seeking, inter alia, quashing of the purported invoice dated
14.12.2021 raised by the Respondent No. 1 on the Petitioner and for refund of
Rs 59,58,745 wrongfully and illegally deducted by the Respondents
AND IN THE MATTER OF:
DB Power Ltd.
Having its registered office at:
Office Block 1A, 5th Floor,
Corporate Block, DB City Park,
DB City, Arera Hills,
Opposite MP Nagar, Zone-I,
Bhopal-462016.
Also at
C-31, Naman Corporate Link
3rd floor, G Block,
Opposite Dena Bank,
Bandra Kurla Complex,
Bandra (East),
Mumbai – 400051
Through its Authorized Signatory
Shri Ajay Kumar Kaithwash ... PETITIONER
VERSUS
NTPC Vidyut Vyapaar Nigam Ltd.
2nd Floor, Core-5, SCOPE Complex,
7, Lodhi Rd, Institutional Area,
New Delhi, Delhi 110003
Through CEO
Phone: +91-11-24387741
Email:
[email protected] …Respondent No. 1
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Gujarat Urja Vikas Nigam Limited (GUVNL)
Sardar Patel Vidyut Bhavan,
Race Course Vadodara – 390 007
Through General Manager (Commerce)
Phone: (0265) 2334751 / 9925211205
Email:
[email protected];
[email protected] …Respondent No. 2
PETITION UNDER SECTION 79(1)(b) READ WITH SECTION 79(1) (f)
OF THE ELECTRICITY ACT, 2003
THE HUMBLE PETITION OF THE
PETITIONER NAMED HEREINABOVE
MOST RESPECTFULLY SHOWETH:
1. The Petitioner is a generating company incorporated under the
Companies Act, 1956. The Petitioner has set up 1200 MW (2 x 600) Thermal
Power Plant at Village Badadarha, in District Janjgir Champa, Chhattisgarh and
both of its units are presently in operation. The Petitioner is supplying power to
more than one state and has a composite scheme for the generation and sale of
electricity as envisaged under Section 79(1) (b) of the Electricity Act 2003. The
Petitioner is supplying 208 MW of power to Tamil Nadu Generation and
Corporation Ltd. under a long term PPA, 311 MW power to Rajasthan Discoms
through PTC India Ltd. under long term PPA, 5% of the net generated power to
the State of Chhattisgarh under a long term PPA, in addition to the present
supply made by the Petitioner.
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2. The Respondent No. 1 is an inter-State trading licensee, who has been
granted Category - I electricity trading license by this Hon’ble Commission
under the Indian Electricity Act, 2003, carrying out its trading activities
through its trading division, located at New Delhi.
3. The Respondent No. 2 is a Govt. of Gujarat Undertaking and is engaged
in the activity of bulk purchase and sale of electricity in Gujarat for & on
behalf of its Distribution Companies and is the ultimate purchaser of the power
in question.
4. The facts and circumstances leading to filing of the present petition are
enumerated herein below in the following paragraphs. The Petitioner reserves
its rights to substantiate its Petition with further documents and submissions
with the leave of this Hon’ble Commission, if and when required.
(i) That in September, 2021, the Respondent No. 2 issued a request for
proposal (“RFP”) for inviting bids for procurement of power on
short-term basis through tariff based competitive bidding process.
Copy of the RFP issued by the Respondent No. 2 is annexed hereto
and marked as Annexure-A.
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(ii) That pursuant to the said invitation of bids by Respondent No. 2, the
Respondent No. 1 approached the Petitioner to enquire if the
Petitioner was desirous of supplying power as required in the RFP.
The Petitioner vide its Authorisation Letter dated 14.09.2021
granted authorisation to the Respondent No. 1 to participate in the
tender invited by Respondent No. 2 on behalf of the Petitioner.
Copy of Authorisation Letter dated 14.09.2021 is annexed hereto
and marked as Annexure-B.
(iii) Upon conclusion of the bidding process, the Respondent No. 1
emerged as a successful bidder for the following quantum at the
following tariff:-
Period Duration Quantum Delivery Point Rate
(Hours) (MW) (Rs./kWh)
at
Delivery
Point
1.11.2021 00:00 to 100 MW Gujarat State 3.92
to 24:00 Transmission
30.11.2021 (RTC) Periphery
1.12.2021 (GETCO 3.84
to Periphery)
31.12.2021 (Interconnection
of Gujarat STU
and CTU)
(iv) Further to the above, the Respondent No. 2 issued a letter of intent
dated 01.10.2021 (“LOI 1”) in favour of Respondent 1 to off-take
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power on short term basis. Pursuant to the said LOI 1, the
Respondent No. 1 issued a letter of intent dated 04.10.2021 (“LOI
2”) to the Petitioner for purchase of power from the Petitioner for
onward sale to Respondent No. 2.
Copies of LOI 1 and LOI 2 are annexed hereto and marked as
Annexure-C and Annexure-D respectively.
(v) It is pertinent to note that the LOI 2 mentions commercial terms
agreed between the Petitioner and the Respondent No. 1 whereby the
Respondent No. 1 is obligated to ensure timely payment of energy
bills to the Petitioner, irrespective of its receipt from Respondent No.
2. The LOI 2 further mentions that the rest of the terms &
Conditions shall be as per Respondent No. 2’s LOI, tender document
(i.e. the RFP) and e-mail communication between the Petitioner and
the Respondent No. 1 dated 14.09.2021.
(vi) It is pertinent to note that in terms of Clause 24 of the RFP, both the
parties would ensure that actual scheduling does not deviate by more
than 15% of the contracted power (i.e. 100 MW) as per the approved
open access for the monthly basis (for each requisition separately).
The said provision stipulates that in case the deviation from the
Respondent’s No. 2’s side is more than 15% of contracted energy for
which open access has been allocated on monthly basis, the
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Respondent No. 2 shall pay compensation at 20% of Tariff per kWh
for the quantum of shortfall in excess of permitted deviation of 15%.
Likewise, in case the deviation is from the Petitioner’s side, the
Petitioner is liable to pay such compensation. Clause 24 of the RFP
is reproduced below:
“24. PAYMENT OF LIQUIDATED DAMAGES FOR
FAILURE TO SUPPLY THE CONTRACTED
CAPACITY
i) Both the parties would ensure that actual scheduling does
not deviate by more than 15% of the contracted power as
per the approved open access for the monthly basis (for
each requisition separately).
iii) In case deviation from GUVNL’s side is more than 15%
of contracted energy for which open access has been
allocated on monthly basis, GUVNL shall pay compensation
at 20% of Tariff per kWh for the quantum of shortfall in
excess of permitted deviation of 15%, while continuing to
pay open access charges as per terms and condition of the
contract.
iii) In case deviation from Seller’s side is more than 15% of
contracted energy for which open access has been allocated
on monthly basis, Seller shall pay compensation to GUVNL
at 20% of Tariff per kWh for the quantum of shortfall in
excess of permitted deviation of 15% in the energy supplied
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and pay for the open access charges to the extent not
availed by the GUVNL.
iv) The liquidated damages shall be worked out separately
for each requisition
iv) The bill towards liquidated damages (as stipulated in this
RFP document) shall be along with Energy bills as per
Point 19 above.”
(vii) That the Respondent No. 1, vide its invoice dated 14.12.2021 raised
a purported claim for compensation amounting to Rs. 59,58,745 on
account of shortfall of scheduling by the Petitioner for period from
01.11.2021 to 30.11.2021.
True copy of the invoice dated 14.12.2021 is annexed hereto and
marked as Annexure-E.
(viii) At this juncture, it is pertinent to note that the Clause 24 of RFP
allows the Petitioner to deviate up to 15% of contracted energy for
which open access has been allocated on monthly basis without
payment of any compensation. The deviation from the Petitioner’s
end for the period for which the invoice for compensation was issued
was only to the extent of 10.103MU which is 14 % of the contracted
energy (for which open access had been allocated). However, the
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Respondent No. 1 wrongfully included the deviation from the
Respondent No. 2’s end as well and considered this cumulative
deviation above the allowed limit of 15%, for raising the said
purported invoice for compensation. It is pertinent to note that
Clause 24(i) of the RFP is general and provides that both the
Petitioner and Respondent No. 1 would ensure that the actual
scheduling does not deviate by more than 15% of the contracted
power as per the approved open access for the monthly basis. The
said clause nowhere provides for any cumulative deviation from the
Petitioner and the Respondent No. 1, much less the same being a
trigger for payment of compensation under the said clause. It is
further pertinent to submit that Clause 24 (iii) specifically provides
that the seller i.e. the Petitioner is only liable to pay for deviation if
the deviation from its side is more than 15% of contracted energy
(for which open access has been allocated on monthly basis). Thus,
Clause 24 (iii) is clear in its operation. Likewise, there is specific
separate clause for payment of compensation by Respondent No. 1 in
case there is deviation from its side i.e. Clause 24 (ii) (wrongly typed
as (iii) in the RFP]. In the present case, admittedly, there being no
deviation of more than 15% from the Petitioner’s side, the Petitioner
is thus not liable to pay any compensation.
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(ix) In light of the above, the Petitioner vide its letter dated 15.12.2021,
rightfully requested the Respondent No. 1 to withdraw the said
invoice. It is pertinent to highlight that in the said letter dated
15.12.2021, the Petitioner mistakenly mentioned the deviation from
its end as 101 MU, instead of 10.103 MU.
True copy of the letter dated 15.12.2021 is annexed hereto and
marked as Annexure-F.
(x) The Respondent No. 1 by its letter dated 16.12.2021 admitted that
the individual deviation by both the Petitioner as well as the
Respondent No. 2 is less than 15% of the contracted energy (for
which open access had been allocated). However, Respondent No. 1
alleged that as overall revised quantum (by both the Petitioner and
the Respondent No. 2) exceeds 15% of contracted quantum, thereby
violating Clause 24(i) of the RFP. Further, the Respondent No. 1 also
stated that owing to the alleged violation, the Respondent No. 2 had
deducted the said compensation from Respondent No. 1 and
accordingly based of the said deduction, the Respondent No. 1 has
raised the alleged invoice on the Petitioner while taking up the said
dispute on compensation with Respondent No. 1. The Respondent
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No. 1 also threatened to recover the amount under the alleged
invoice from its next payment.
True copy of the letter dated 16.12.2021 is annexed hereto and
marked as Annexure-G.
(xi) That further to the letter dated 16.12.2021, the Respondent No. 1
wrote a letter to Respondent No. 2 on 21.12.2021 stating that
deviation from the side of the seller i.e. the Petitioner is within the
allowable limits and accordingly requested for refund of the
compensation already deducted from Respondent No. 1. This is in
conformity with the stand of the Petitioner.
Copy of the letter dated 21.12.2021 is annexed hereto and marked as
Annexure-H.
(xii) It is however submitted that subsequently the Respondent No. 1 has
deducted the said amount of Rs. 59,58,745 from the payment made
on 23.12.2021 against the invoice dated 16.12.2021 raised by the
Petitioner for supply of power.
5. In view of the above clear provisions of the RFP, the Petitioner submits
that the purported demand of compensation to the tune of Rs 59,58,745 raised
by the Respondents is in breach of the terms and conditions of the RFP and bad
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in law. The Respondents have illegally and wrongfully deducted an amount of
Rs. 59,58,745 towards purported compensation, which is wrongful and
unjustified. The Respondents are wrongfully seeking to deny legitimate dues of
the Petitioner on the pretext of the alleged compensation which has been
imposed in violation of the terms of RFP. The Respondents are thus jointly and
severally liable to refund the said amount of Rs. 59,58,745 to the Petitioner
along with Late Payment Surcharge as per the provisions contained in Clause
23 of the RFP.
6. It is submitted that in light of the above, a dispute has arisen between the
parties, which is required to be adjudicated by this Hon’ble Commission.
Accordingly, the Petitioner is filing the present Petition seeking a declaration
that the purported action of the Respondents of levying compensation of an
amount of Rs. 59,58,745 on account of shortfall of scheduling by the Petitioner
for period from 01.11.2021 to 30.11.2021 is illegal and wrongful being
contrary to the terms of the RFP and consequently seeking a direction to the
Respondents to refund the said amount of Rs. 59,58,745 to the Petitioner along
with Late Payment Surcharge as per the provisions contained in Clause 23 of
the RFP.
7. The Respondent No. 1 is a licensee of this Hon’ble Commission. The
Petitioner has a composite scheme of generation and supply of power as
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described in Para 2 above. Further, the present matter also relates to inter-state
supply of power. Therefore, this Hon’ble Commission has the requisite
jurisdiction to entertain and decide the present Petition.
8. The Petitioner has paid the requisite fees as per the applicable
regulations.
PRAYER
In view of the aforementioned facts and circumstances of the present case it is,
therefore, most respectfully prayed that this Hon’ble Commission may
graciously be pleased to:
a. Pass an Order declaring that the purported action of the Respondents to
levy compensation of an amount of Rs. 59,58,745 (Rupees fifty nine
lacs fifty eight thousand seven hundred and forty five) for the period
from 01.11.2021 to 30.11.2021 is illegal and wrongful;
b. Pass an Order directing the Respondents, jointly and severally, to refund
the amount of Rs 59,58,745 to the Petitioner, along with Late Payment
Surcharge as per the provisions contained in Clause 23 of the RFP from
23.12.2021 till the date of payment;
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c. Pass such other and further order or orders as this Hon'ble Commission
may deem fit and proper under the facts and circumstances of the
present case and in the interest of justice.
PETITIONER
Through
Deepak Khurana
(Khaitan & Khaitan)
Advocates for the Petitioner
A-38, Kailash Colony,
New Delhi-110048
Place: New Delhi Tel: 011-49774545
Dated: 01.04.2022 E-mail: [email protected]
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BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY
COMMISSION, AT NEW DELHI
PETITION NO. MP/2022
DB Power Ltd.
... PETITIONER
VERSUS
NTPC Vidyut Vyapaar Nigam Ltd. and Ors.
... RESPONDENT
AFFIDAVIT
I, Ajay Kumar Kaithwash, aged about 45 years, S/o Sh. R.R. Kaithwash,
working for gain with the Petitioner Company having its Corporate office at C-
31, Naman Corporate Link 3rd floor, G Block, Opposite Dena Bank, Bandra
Kurla Complex, Bandra (East), Mumbai – 400051, presently at New Delhi, do
hereby solemnly affirm and state as under:
1. I am the authorized representative of the Petitioner Company in the
above matter and am well conversant with the facts and circumstances
of the present case, and as such I am duly authorized on behalf of the
Petitioner Company to swear the present affidavit.
2. I say that the accompanying Petition has been drafted under my
instructions. I have read the contents of the accompanying Petition and I
have understood the contents of the same which are derived from the
records of the Petitioner Company maintained in the normal course of
business and believed by me to be true and correct.
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DEPONENT
VERIFICATION
I, deponent above named, do herby verify that the contents of the above
affidavit are true to the best of my knowledge and belief derived from the
records of the Petitioner Company, no part of it is false and nothing material
has been concealed therefrom.
Verified on this 01 day of April, 2022 at New Delhi.
DEPONENT
