Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Electricity: Supply under Open Access System |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Electricity: Supply under Open Access System – PPA between appellant and respondent no.1 – State Commission did not accord approval to the PPA and returned the same – Appellant filed O.P. before State Commission seeking declaration that no valid PPA subsisted between them – State Commission dismissed the O.P. – Appeal before Appellate Tribunal – During pendency of appeal, appellant sent Letter dated 5.5.2011 to respondent no.1 mentioning the defaults in making payment for power bill and interest and default in opening letter of credit and seeking permission to sell the power to third party – Meanwhile appellant sought to bring subsequent events on record for decision of appeal – Appellate Tribunal examined the subsequent events on merits and ultimately dismissed the appeal holding that no notice to remedy the default or termination notice was served by appellant on the respondent no.1 – On 11.5.2012, appellant sent notice of termination – Respondent no.1 made certain payments and also opened letter of credit and thereafter filed O.P. before State Commission seeking declaration that termination of PPA by appellant was invalid – On 9.5.2013, Central Commission asked appellant to approach State Commission for adjudication of dispute regarding subsistence or otherwise of the PPA after the termination notice dated 11.05.2012 – O.P. by respondent was allowed by State Commission by order dated 17.3.2017, on the ground that notice dated 5.5.2011 was not a default notice and therefore subsequent notice of termination based upon 5.5.2011 notice could not be said to be valid in law – Appellate Tribunal dismissed appeals of appellant filed against order dated 9.5.2013 and 17.3.2017 – In the instant appeals, plea of appellant inter alia was that finding based on letter dated 5.5.2011 by Appellate Tribunal was not on a matter directly and substantially in issue but being merely collateral could not be said to be res judicata – Held: There is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal – This being the case, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event was indeed important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, the appellant was clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata – A reading of PPA showed that upon occurrence of an event of default, a default notice may be served to the Corporation in writing specifying in reasonable detail the event of default giving rise to the notice, and calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise – It is only then that the Company may deliver a termination notice to the Corporation – Letter dated 05.05.2011 spoke only of events of default, but did not call upon Respondent No.1 to remedy the same within the period specified – Thus there was no substantial compliance of Clause 9.3.2 of the PPA – Appellate Tribunal in the impugned judgment cannot be faulted on any score. |
Judge | Hon'ble Mr. Justice R.F. Nariman |
Neutral Citation | 2018 INSC 108 |
Petitioner | Rithwik Energy Generation Pvt. Ltd. |
Respondent | Bangalore Electricity Supply Co. Ltd. & Ors. Etc. |
SCR | [2018] 1 S.C.R. 1023 |
Judgement Date | 2018-02-06 |
Case Number | 5084 |
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