M.KARPAGA VINAYAGAM, J. - (1.) SULOCHANA Cotton Spinning Mills Private Limited is the Appellant. The Tamil Nadu Electricity Board (Board) as well as the Supdt Engineer, Coimbatore Electricity Distribution Circle are the Respondent 1st and 2nd respectively. Tamil Nadu Electricity Regulatory Commission is the 3rd Respondent.
(2.) THE Appellant filed a Petition before the State Commission seeking for a direction to the Tamil Nadu Electricity Board to adjust the generated units by its Wind Energy Generator banked with the 1st Respondent Board by the Appellant. The Tamil Nadu State Commission after, hearing both the parties dismissed the said Petition on the ground of delay and latches.
(3.) AGGRIEVED by the above order, the Appellant has preferred this Appeal before this Tribunal seeking to set -aside the impugned order and to issue a consequential direction to the Board, the First Respondent to adjust the unutilized banked units. The short facts are as under: (i) Sulochana Cotton Spinning Mills Private Limited, the Appellant was started with the object of conversion of cotton into yarn and to manufacture, trade and distribute other related machine equipments and spares etc. One of the other objects of the Appellant Company is to establish, operate and commissioning of the WEG for generation of electricity. (ii)The Appellant Company on 28.3.2004, entered into an Private Wind Mill Agreement with the Electricity Board (R -1) for setting up a Wind Energy Generator. As per the Agreement, the Appellant Company would generate power by installing the wind mill of 750 KW capacity at Gomangalam village Coimbatore on the condition that 1x750 KW Wind energy will be synchronised with the Board's grid at 22 KV. The Wind Mill Agreement had provisions regarding wheeling of power from WEG location to the Appellant's premises on payment of wheeling charges and also banking of unutilised energy with the Board on payment of 5% banking charges. The Appellant had opted for wheeling and banking arrangement and the Board (R -1) permitted the Appellant to wheel the energy generated from their WEG to their own consumption and to bank the surplus power available after adjustments. (iii) As on 31.8.2005, the Appellant had about 236996 unutilised banked units to their credit. However, the said banked units as on 31.8.2005 were not carried forward for adjustments in the subsequent bills. The Appellant was under the genuine impression that the banked units have been adjusted in the subsequent bills. (iv) From the subsequent audit objection, the Appellant came to know that the banked units as on 31.8.2005 were not reflected in the Bills nor given credit by the Electricity Board (R -1). Therefore, the Appellant sent a letter on 11.6.2009 to the Electricity Board (R -1) requesting for adjustment of the 236996 units banked with the Board during 2005 -06 which had not been accounted for by the Board with the Appellant's bills. Though the Board in its reply dated 28.1.2010 admitted that the banked units as on 31.8.2005 had been inadvertently omitted and had not been adjusted against the consumption of the Appellant in subsequent bills, it refused to adjust the same on the ground that the same had elapsed on 31.3.2006 itself i.e. by the end of financial year as per the terms of the Wind Mill Agreement entered into between the parties. (v) The Appellant again sent a letter to the Board on 9.2.2010 stating that since the omission was on the part of the Board, the Board cannot claim that the period already got elapsed particularly when there was no provision in the wind mill agreement to the effect that the balance units that have been omitted to be adjusted during the year 2005 -2006 by the Department would get elapsed and therefore, the Board may consider the request favourably. On receipt of this letter, the Electricity Board (R -1) sent a reply dated 20.3.2010 again rejecting the request on the reason that the balance unadjusted energy units had not been claimed within a period of 02 years under Regulation 21 (ii) of the Tamil Nadu Electricity Supply Code and as such the claim is barred by time. (vi) Aggrieved by the above reply, the Appellant filed a Petition challenging the said refusal before the State Commission. The State Commission after hearing both the parties, passed the impugned order dated 20.1.2011 dismissing the Petition on the ground of delay and latches in making the claim. On being aggrieved, the Appellant has presented this Appeal challenging the order impugned and seeking to set -aside the said order. According to the Learned Counsel for the Appellant, there was no delay on the part of the Appellant since the Appellant came to know about the mistake committed by the Electricity Board Page 5 of 24 only in 2009 during the course of audit and immediately thereafter, the Appellant sent a letter to the Board on 11.6.2009 and pursued the matter till the end and as such, the State Commission wrongly dismissed the Petition filed by the Appellant, on the ground of delay, especially when the Electricity Board itself had admitted that they had inadvertently failed to account for the banked surplus units and that hence the impugned order is liable to be interfered with.;