P.S.DATTA, J. - (1.) THE appellant M/s. Orange County Resorts & Hotels Ltd. which is a Company under the Companies Act, 1956 established a 0.6 MW wind energy captive power plant for its installations at two places in the State of Karnataka. Apart from consent having been given by the Government of Karnataka the appellant has also obtained in -principle approval from the respondent No.4, State Load Dispatch Centre for Karnataka for wheeling and banking agreement (WBA) in respect of the above two installations. The respondent No. 1 is the Karnataka State Electricity Regulatory Commission, the respondent No. 2 Hubli Electricity Supply Co. Ltd. and respondent No. 3 Karnataka Power Transmission Co. Ltd. and the two State Government Authorities responsible for giving consent for wheeling and banking agreement. Respondent No. 2 is the Company with whom the appellant has banked the energy that it produced in its plant. Chamundeshwari Electricity Supply Corporation Ltd. Is a government company engaged in distribution and transmission of electricity from whom the appellant is said to have been taking supplies for its installations during the period when the matter of execution of WBA was pending for consideration with the concerned respondents. Appellant entered into an agreement with the Government of Karnataka on 22.9.2007 for the purpose of establishing a 0.6 MW captive power plant.
(2.) ON 3.12.2007 the respondent No. 3, according to the appellant, accorded its consent for wheeling and banking agreement through a letter the contents of which were later modified by the respondent No. 3 itself through a subsequent letter dated 10.12.2007. It goes without dispute that the captive power plant of the appellant was commissioned on 31.3.2009 and the appellant contends that the power was injected/transferred to respondent No. 2 for banking with them. The appellant obtained a certificate on 4.4.2009 regarding commissioning of the project on 31.3.2009 but the appellant was not in a position to utilize the power because the respondents nos. 2 and 3 were yet to sign the WBA. It is the case of the appellant that to expedite the process of executing of WBA the appellant made several representations including one on 9.6.2009 to the respondent No. 2 who along with the other respondents allegedly delayed the execution of the WBA. On 15.10.2009 the respondent No. 4, the State Load Dispatch Centre for Karnataka accorded its approval for execution of WBA subject to incorporation of two fresh clauses namely clause 5.1 (b) and clause 5.1 (c) and asked the appellant to approach the respondent No.2 and 3 for further action. Accordingly, the appellant by letter dated 15.10.2009 approached the respondent No.2 who by letter dated 4.11.2009 compelled the appellant to accept the above two clauses suggested to be incorporated by the respondent No.4 in the WBA. Immediately the appellant vide its latter dated 5.11.2009 accepted the incorporation of the two clauses and finally the appellant and the respondent No. 3 signed the WBA on 7.11.2009. On 17.11.2009 respondent No. 3 forwarded the WBA after it has signed to the respondent No. 2 for its signature. The respondent No.2 signed the WBA on 30.12.2009 and meanwhile respondent No. 3 also having signed the WBA submitted the same to the Commission for its approval on 18.1.2010. According to the appellant, the State Commission declined to give its approval to the WBA on the ground that inclusion of the new clauses were under challenge before the Commission. At this stage the appellant made further representation on 25.1.2010 to the respondent No.3. In this way a year rolled by and because of non approval of the WBA the electrical energy generated by the appellant in its CPP during the period from 31.3.2009 to 31.3.2010 was deposited with the respondents. The total energy so deposited was 1040940 units the value of which, if calculated on the basis of High Tension -2 (b) tariff came to be Rs.52,29,425/ - as on 31.3.2010. The appellant demanded against the respondents for payment of a sum of Rs. 52,29,425/ - at the HT -2(b) tariff rate but the respondents did not pay. According to the appellant, even after March, 2010 the appellant produced more electrical energy than what was required for its installations and as against total production of 1050000 unit per annum the appellant's consumption was about 8.75000 units. Appellant filed a petition being OP No. 14 of 2010 before the Commission on 17.3.2009 seeking directions to the respondents to sign the WBA and to make payment towards the energy generated by the appellant and deposited with the respondent No.1. During the pendency of this petition the respondent No. 2 forwarded the WBA to the Commission for approval.
(3.) AFTER approval of WBA by the Commission the appellant issued "C form" to the respondent No. 2 for wheeling the energy generated in the month of April for captive use to the appellant's installations in the month of May, 2010, similar form C was further issued for the months from May to November, 2010 after approval of the WBA and issuance of form C for the month of April, 2010. The Commission disposed of the petition No . 14 of 2010 on 1.7.2010 holding that the said petition had become in fructuous but while deciding the prayer of the appellant regarding payment of electricity generated by it in its CPP and deposited with the respondent No.2 the Commission made the following order "11. Then next question that arises for consideration is that what shall happen to the energy pumped by the petitioner to the grid till signing of wheeling and banking agreement. 12. Admittedly the petitioner is a generating company and producing electricity after making substantial investment. It was also not the intention of either of the parties to treat the electricity generated be supplied free. In the circumstances of this case we deem it proper to order the respondents to pay the petitioner for the energy pumped to the grid at the rate of FRs.3.40 (which is the rate fixed by this Commission to the wind energy). The respondents may pay this in cash or adjust against the charges payable by the petitioner in future either towards wheeling and banking charges or electricity charges to respondents." It is this order dated 1.7.2010 which is under challenge in this appeal on variety of grounds as narrated hereunder: (i) The amount to which the appellant was found and held to be entitled should have been paid to the appellant without leaving the amount to be adjusted by the respondents. (ii) The impugned order is vague and superfluous because as the appellant is producing 10,50,000 units per annum, whereas total consumption from both the installations is about 8,75,000 units the question of adjustment is misnomer. (iii) There was delay and latches on the part of the respondents in execution of the agreement. (iv) The rate determined by the Commission for payment of the electricity generated by the appellant and deposited with the respondent no.2 is not reasonable and justified. (v) The power supply to the appellant's installations in Kabini under the fourth respondent being R.R.No.HTS -9 is restricted to about four hours, while for remaining 20 hours of supply the appellant is depending on diesel which causes loss to the appellant. Thus the banked energy, even it is carried forward cannot be adjusted for future consumption. The energy surplus, therefore, will remain. (vi) The Commission overlooked the fact that the appellant spent huge amount of money, say Rs. 3.45 crores for setting up the project and suffered loss on its capital investment as also on the working of the project and also towards purchasing power from the respondent no.5 under HT - 2(b) tariff. (vii) The Commission overlooked the fact that because of want of WBA it was the respondent no.2 who utilized the electrical energy to satisfy its consumers. (viii) The Commission failed to note that the respondent no.2 utilized 1040940 units of power and it collected charges at HT -2(b) tariff from its consumers, therefore, the respondents are liable to pay to the appellant the same amount for the energy deposited with it. (ix) The appellant purchased power by paying Rs.4.85 per unit till November, 2009 and then from onwards at Rs. 5.60 per unit. Therefore, the respondents are liable to the appellant at the same rate for the power it has obtained from them. (x) The Commission overlooked the fact that the appellant was entitled to interest against the respondent. ;