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ELECTRIC/TY ACT, 2003: s. 86 (1)(f) - Discretion of State Commission either to c adjudicate the dispute or to refer it to arbitration - Dispute between parties with regard to accounting details, refund of excess rebate etc. - State Commission exercising the discretion to adjudicate the dispute - Held: It cannot be accepted that since appellant had made a request for a reference of dispute to arbitration, State Commission ought to have made the reference - Appellant chose to contest the claim of respondent on merits and filed written statement before State Commission - Further, appellant participated in the entire proceedings and invited the findings on merit - Besides, applicability of Arbitration and Conciliation Act, 1996 and Arbitration Act, 1940 has been specifically excepted by Article 16 (2) of the Power Purchase Agreement - Commission is required to exercise its discretion reasonably and not arbitrarily - In the instant case, State Commission upon consideration of the entire matter has rightly exercised F its discretion. s.86 - Adjudication of dispute by State Commission - Held: If the amount of invoice is disputed, the appellant is obliged to make full payments of the invoice when due and G then raise the dispute - Undoubtedly, early payment is encouraged by offering rebate of 2.5% if paid within 5 days of the date of the invoice - Similarly, 1% rebate would be available if the payment of the entire invoice is made within 30 days - The rebate is in the form of incentive and is an exception to the general rule requiring payment in full on due date - Therefore, the appellant had no legal right to claim rebate at the rate of 2.5% not having paid the entire invoice amount within 5 days - Similarly, the appellant would be entitled to 1% rebate if payment is made within 30 days of invoice - The findings of the Appellate Tribunal on this issue do not call for any interference - As regard interest on late payment, Appellate Tribunal has considered the entire matter and has rightly come to the conclusion that interest is payable on compound rate basis in terms of Article 10.6 of the PPA. DELAY/LACHES: Plea that claim of respondent was time barred - Held: Claim of respondents cannot be held to be time barred - Principle of delay and laches would not apply, by virtue of'the adjustment of payments being made on FIFO (first in first out) basis - Appellant was duly informed that the part payments made would be adjusted by respondents under FIFO system - It has been correctly held that in such circumstances, s. 59 of Contract Act would not be applicable - In any event, Limitation Act is inapplicable to proceedings before State Commission - There is no reason to interfere with the findings recorded by Appellate Tribunal - Contract Act, 1872 - ss. 59,60 and 61 - Limitation Act, 1963. ELECTRICITY ACT, 2003: ss. 111 and 113 -- Appellate Tribunal for Electricity - Appeal - Jurisdiction - Held: Appellate Tribunal exercises jurisdiction over State Commission by way of a first appeal - Therefore, it is the bounden duty of Appellate Tribunal to examine as to whether decisions rendered by State Commission suffer from vice of arbitrariness, unreasonableness or perversity - It is always open to Appellate Tribunal to examine as to whether State Commission has H exercised discretion with regard to referring the dispute to arbitration, in accordance with well known norms for exercising such discretion - In the instant case, Appellate Tribunal ought not to have brushed aside the submissions of appellant with the observation that State Commission having exercised its discretion, the issue need not be investigated by Appellate Tribunal - However, conclusions reached by Appellate Tribunal, that jurisdiction has not been exercised by State Commission arbitrarily, whimsically or against statutory provisions does not call for any interference. s. 125 - Appeal to Supreme Court - Scope of - Held: Under s.125 appeal lies in Supreme Court on any one or more of the grounds specified in s.100 of the Code of Civil Procedure, 1908 - Therefore, unless the Court is satisfied that the findings of fact recorded by the State Commission are perverse, irrational and based on no evidence, it would not interfere. ss. 84 - Appointment of Chairperson of State Commission - States of Tamil Nadu - Held: State Commission in deciding a lis between appellant and respondent, discharges judicial functions and exercises judicial power of State - It exercises judicial functions of far reaching effect - Therefore, it must have essential trapping of the court - State Government ought to have exercised its power under sub-s. (2) of s. 84 to appoint one or more Judicial Members in State Commission - Till date no judicial Member has been appointed in the Tamil Nadu State Commission - Matter needs to be considered, with some urgency - s. 84 enables the State Government to appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court - It would be advisable for State Government to exercise this enabling power. |
