P.S.DATTA,J. - (1.)THIS disposes of the I.A. No.141 of 2012 filed by the Appellant during the pendency of the Appeal No. 201 of 2011 praying for impleadment of Nuclear Power Corporation of India Ltd. as party respondent in this Appeal on the ground as will be noticed in the sequel.
(2.)THE Appellant, Tamil Nadu Generation and Distribution Corporation Ltd. preferred this Appeal against Powergrid Corporation of India Ltd. and Central Electricity Regulatory Commission against the order dated 4.5.2011 passed by the Central Electricity Regulatory Commission in Petition No.307 of 2010 which was filed by the Power Grid Corporation of India. Nuclear Power Corporation of India Ltd. set up a 2000 MW Nuclear Power Plant at Kundankulam in Tamil Nadu. The project was scheduled to be operational by the end of 2007 but till now it could not be commissioned. Power Grid Corporation of India and Nuclear Power Corporation of India Ltd. executed between themselves an indemnification agreement on 13.12.2004 whereby the defaulting party agreed to compensate the other to the extent of interest during construction including FERV and Govt. Guarantee fee for the delay up to a maximum period of one year. The Power Grid Corporation of India Ltd. filed a petition being No. 81 of 2010 before the Central Electricity Regulatory Commission seeking approval of the date of commercial operation from 1.4.2009 on the ground that Nuclear Power Corporation of India Ltd. could not provide for any specific date for commissioning. The present Appellant then raised objection on the ground that the lines were not going to be of any beneficial use because units were not likely to be synchronised. Before the Commission, the present Appellant is said to had prayed for impleadment of Nuclear Power Corporation of India Ltd. as a party in that proceeding because firstly, Power Grid Corporation of India Ltd. and Nuclear Power Corporation of India Ltd. had an indemnity bond between themselves and any order regarding declaration of the Date of Commercial Operation (DOCO) should be made in the presence of Nuclear Power Corporation of India Ltd. because of the delay occasioned by Nuclear Power Corporation of India Ltd.. The Commission turned down the prayer of the Appellant and approved DOCO of the assets from 1.4.2009 as prayed for by the Power Grid Corporation of India Ltd. in terms of Regulation 12(2) of the Tariff Regulations,2009. The Commission passed this order on 24.9.2010.
(3.)THEN , Power Grid Corporation of India Ltd. filed a petition praying for approval of transmission charges before the Central Electricity Regulatory Commission as mentioned above. The present Appellant filed a written objection before the Commission against approval of transmission charges. Many points were raised before the Commission in connection with the said Petition No. 307 of 2010 filed by the Power Grid Corporation of India Ltd. and one of the objections was that approval of transmission charges before commissioning of the assets would prejudice the Appellant in as much as the delay in commissioning of the nuclear project was only attributable to the Nuclear Power Corporation of India Ltd. However, upon hearing the Commission by order dated 4.5.2011 approved transmission charges from 1.4.2009 for transmission system associated with the Kudankulam Nuclear Power Plant, yet to be commissioned till then. It was the case of the Appellant that the Appellant and other beneficiaries should not be burdened with payment of transmission charges prior to the commissioning of the generation units from the nuclear power station and the lines being put under beneficial use. The present Appeal is against the Order dated
2011 passed by the Central Electricity Regulatory Commission in Petition No.307 of 2010. 4. The Appellant on 3.4.2012 filed an counter -affidavit raising some additional grounds in support of the Appeal against the Order dated 4.2011. The Power Grid Corporation of India Ltd. who is the main contesting Respondent in this Appeal has filed affidavit to the memo of appeal. The Appellant also has filed rejoinder to the counter -affidavit of the Power Grid Corporation of India Ltd. During the pendency of the Appeal, the Appellant filed the instant interlocutory application for impleadment of Nuclear Power Corporation of India Ltd. as party on the ground that the delay in putting the transmission line to the regular use was on account of the delay in commissioning of the asset by the Nuclear Power Corporation of India Ltd. who has an indemnity bond executed by it with the Power Grid Corporation of India Ltd. It has been contended that in course of hearing before the Commission, the representative of the Power Grid Corporation of India Ltd. confirmed that it has an indemnification agreement with the Nuclear Power Corporation of India Ltd. but that agreement does not define the "Zero date" for the project and, for making the agreement effective "Zero date" has to be declared. It is contended that the Nuclear Power Corporation of India Ltd. has to make good the losses incurred by the Power Grid Corporation of India Ltd. because it was due to the failure on its part that the transmission system could not be in regular use. Therefore, the Nuclear Power Corporation of India Ltd. because of it being responsible for the delay in execution of its project should be made a party to this Appeal.

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