(Vineet Saran and Aniruddha Bose, JJ.)
Adani Power Rajasthan Limited _______________________ Petitioner;
v.
Subodh Agarwal and Others ______ Alleged Contemnors/Respondent(s).
Contempt Petition (Civil) No(S). 877-878 of 2021 and Civil Appeal No(S).8625-8626 of 2019, decided on February 25, 2022
The Order of the court was delivered by
Order
1. This Contempt Petition has been filed by Adani Power Rajasthan Limited alleging non-compliance of judgment of this Court dated 31.08.2020, against which the Review Petition No. 1811-1812 of 2020 has also been dismissed on 02.03.2021.
2. In short, the dispute in the Civil Appeal was with regard to the certain additional payments which the petitioner claims that it was entitled to because of “change in law”. Very briefly stated, the facts are that the petitioner was to supply electricity to the respondent-Discoms, which was to be generated by the petitioner-company, for which, as per the agreement, the respondents was to supply domestic coal (linkage coal). However, undisputedly, the domestic coal was not provided to the petitioner. Since the petitioner-company was, as per the agreement, required to supply uninterrupted power, it had to purchase imported coal (linkage coal) at a much higher cost. A claim for loss due to non supply of domestic coal because of which petitioner had to purchase imported coal was raised by the petitioner before the Rajasthan Electricity Regulatory Commission (for short ‘RERC’), which vide its Order dated 17.05.2018 held that the petitioner would be entitle to the relief of “change in law”, which was held to be the difference of landed cost of alternate coal/imported coal as certified by auditor and landed cost of domestic linkage coal.
3. In the aforesaid facts, the only dispute for the purpose of calculation of loss due to “change in law” was the actual landed cost of alternate coal minus landed cost of domestic linkage coal.
4. After the RERC decided the said dispute, the matter was challenged before the Appellate Tribunal for Electricity (for short ‘APTEL’), which dismissed the appeal of the respondents vide its judgment dated 14.09.2019 and upheld the order of the RERC. The respondents then challenged the said Order before this Court, and a three Judge Bench of this Court also dismissed the appeal and confirmed the relief in favour of the petitioner regarding the “change in law” i.e. the petitioner was to be paid the difference between the actual landed cost of alternate coal/imported coal minus the actual landed cost of domestic linkage coal. This Court, by its judgment dated 31.08.2020, had limited the relief to the extent that the respondent-Discoms were to pay interest/late payment surcharge only as per the applicable SBAR for the relevant years, which should not exceed 9% with annual compounding.
5. It is noteworthy that after the Order was passed by RERC, while the matter was pending before the APTEL, an interim order was passed by APTEL that pending final decision of the appeal, the Discoms shall pay 70% of the compensation claimed/demanded by the petitioner, as provisional compensation, within two weeks. The said interim order of APTEL was challenged before this Court, which in turn, by an order dated 29.10.2018, directed that instead of 70% of the compensation claimed/demanded by the petitioner, only 50% be paid. It was also noted in the said Order that the total claim was stated to be in the region of about Rs. 5,000 crores. Pursuant thereto, out of the claim of the petitioner, which was for an amount of Rs. 5344.75 crores upto the relevant point of time, the petitioner was paid Rs. 2426.81 crores. It is noteworthy that the order of RERC was upheld by APTEL, which in fact means that the claim of the petitioner was accepted. As per the same calculation, which was for an amount of Rs. 5344.75 crores up to March, 2021, a further claim of Rs. 130.69 crores has been raised for the period of April to November, 2021. As such, according to the petitioner, the total sum due comes to Rs. 5344.75 crores + Rs. 130.69 crores = Rs. 5475.44 crores. After deducting the amount of Rs. 2426.81 crores paid under the interim order, the amount due to be paid was Rs. 3048.63 crores. According to the petitioner, since the claim made by the petitioner, in terms of RERC Order, was upheld by the APTEL, thereafter also upheld by this Court, the petitioner would be entitled to such amount of Rs. 3048.63 crores (up to the period November, 2021) + interest (carrying cost) at the rate of 9% with annual compounding. As the interest rate was limited by this Court Order dated 31.08.2020, the calculation of the amount of interest comes to Rs. 1469.19 crores and, thus, it is claimed by the petitioner that the amount of Rs. 4517.82 crores remained due to be paid for the period up to November, 2021.
6. It is further claimed by the petitioner that since the respondents have not paid the said amount even after the decision of this Court, a further amount of Rs. 2477.70 crores would be payable to the petitioner towards late payment surcharge as per the Power Purchase Agreement (PPA) provision (i.e. SBI PLR + 2%) for the period post due date after billing based on RERC and APTEL Orders in accordance with Article 8.3.5 of the PPA and up to November, 2021.
7. Shri Abhishek Manu Singhvi, learned Senior Counsel appearing for the petitioner has submitted that the only dispute which was to be resolved by RERC, APTEL and this Court was with regard to the payment due because of “change in law”, which was held to be the actual landed cost of alternate coal/imported coal as certified by the auditor minus landed cost of domestic linkage coal. There was no other dispute which was to be resolved by this Court. Learned Senior Counsel has submitted that it is now contended by the respondents that certain payments have been made by the respondents which, according to the learned Senior Counsel, was towards regular payment on the basis of domestic linkage coal and nothing else. Since, the “change in law” ground of the petitioner has been accepted by all the authorities i.e. RERC, APTEL and this Court and also confirmed by the dismissal of the Review Petition filed before this Court, the question cannot now be reopened at this stage. It is, thus, submitted that since the actual landed cost of alternate coal/imported coal as was submitted by the petitioner has been duly certified by the auditors, which has not been disputed by the respondents, the payment, as claimed, ought to have been made and since the same has not been paid, the respondents are liable for contempt. The further contention of the learned Senior Counsel of the petitioner is that the claim of the respondents that they had paid certain amount towards energy charges regularly month by month, which included certain amount of price of alternate coal/imported coal charges cannot be accepted, as at that stage i.e. in the year 2013, the respondents had not accepted the claim of the petitioner with regard to “change in law”, and the assertion now being made by the respondents that they had paid certain amount after partially accepting the “change in law” theory cannot be accepted, as this issue had never been raised by respondents in any proceedings earlier, as the respondents had, in fact, throughout contested that the petitioner is not entitled to the “change in law” benefit.
8. Per contra, Shri C. A. Sundaram learned Senior Counsel appearing on behalf of the respondents has contended that the regular demands made by the petitioner from the year 2013, included the portion of the price of imported coal as “change in law” because admittedly the petitioner was never supplied the domestic linkage coal. Although Shri Sundaram has raised an issue of the petitioner not being entitled to the benefit with regard to “change in law”, but we are not inclined to accept the same as the issue has already been settled by a very detailed judgment of this Court dated 31.08.2020 and thereafter also by the rejection of the Review Petition by a three Judge Bench of this Court by Order dated 02.03.2021. Shri Sundaram has strenuously argued before us that all which the petitioner would be entitle to is the difference between the landed cost of alternate coal/imported coal which was Rs. 11252.14 crores minus Rs. 8096.92 crores (landed cost of linkage coal which has been paid) i.e. only an amount of Rs. 3155.22 crores. This calculation, according to Shri Sundaram, is based on the actual amount paid for energy charges (i.e. Rs. 8096.92 crores), which includes past price difference of imported coal and domestic coal, as per the “change in law” principle. It is, thus, contended that since out of Rs. 3155.22 crores, Rs. 2426.81 crores have already been paid to the petitioner in terms of the interim order passed by this Court, only an amount of Rs. 728.41 crores remains to be paid. Further, according to the Senior Counsel, since the petitioner is liable to pay certain amount under different heads besides the dispute in question, as such, there would be no claim left to be paid by the respondents and on the contrary there would be certain amount due to be paid by the petitioner to the respondents. He has thus urged that this contempt petition may be dismissed.
9. We have heard learned Senior Counsel for both the parties at length and have carefully perused the material on record.
10. Firstly, what we have to consider is only the effect of “change in law”, which as per RERC, APTEL and this Court would be the actual landed cost of alternate coal/imported coal minus the landed cost of domestic linkage coal. The question of any claim which the respondents may have against the petitioner, is not an issue before us. As per the principle laid down by RERC and affirmed up till this Court, the petitioner has claimed an amount of Rs. 5344.75 crores up to March, 2021. The said principle having been affirmed by the APTEL as well as by this Court and even in Review Petition, cannot be reopened now. It cannot be disputed that after March, 2021 also, the petitioner would be entitled to payment on the basis of the same calculation, which up to November, 2021 comes to Rs. 130.69 crores. As such, the due amount upto November 2021 would be Rs. 5344.75 + Rs. 130.69 = 5475.44 crores. Out of this amount of Rs. 5475.44 crores, the petitioner has been paid a sum of Rs. 2426.81 crores in terms of the interim order passed by this Court. Hence, as per the petitioner, the balance amount of Rs. 3048.63 crores would remain due to be paid up to November, 2021. The interest at the maximum rate of 9% per annum, as capped by this Court vide its judgment and order dated 31.08.2020, is to be applied on the said amount, from the date the amount became due, till the date of actual payment. The further claim of late payment surcharge, amounting to Rs. 2477.70 crores, as per the petitioner, would be a subject matter which the petitioner, if so advised, can claim before the appropriate forum, as the same is not the subject in question in the present proceedings, regarding which no directions have also been issued by this Court.
11. As such, considering the totality of facts and circumstances of this case, prima facie we are of the opinion that the respondents are liable for contempt for not complying this Court’s order dated 31.08.2020. We, thus, direct the respondents to pay to the petitioner, the principal amount (as per the terms/norms laid down in the judgment of this Court dated 31.08.2020) minus Rs. 2426.81 crores deposited by the respondents in terms of the interim order dated 29.10.2018 (which, as per the petitioner, the balance payable amount would be Rs. 3048.63 crores) along with interest as per the applicable SBAR for the relevant years, which should not exceed 9% per annum (to be compounded annually), from the date the amount became due till the date of actual payment, within four weeks from today, failing which the respondents shall appear before this Court in person, on the next date, so as to enable this Court to frame charges.
12. List on 31st March, 2022.
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