Before the

MAHARASHTRA ELECTRICITY REGULATORY COMMISSION

World Trade Centre, Centre No.1, 13th Floor, Cuffe Parade, Mumbai 400005
Tel. 022 22163964/65/69 Fax 22163976
Email: mercindia@merc.gov.in
Website: www. merc.gov.in

Case No. 205 of 2020

Petition seeking directions to Maharashtra State Electricity Distribution Co. Ltd for
making payments as per the power purchase agreements dated 31 July 2006 and 23
November 2006.
M/S Gujrat JHM Hotels Ltd. (GJHL) ..... Petitioner

Maharashtra State Electricity Distribution Co. Ltd. ..... Respondent

And
Case No. 227 of 2020
Petition of M/s Avon Cycles Limited requesting the Commission to issue necessary
directions to MSEDCL to honor the terms and conditions of Article 12.02 of the Energy
Purchase Agreement entered between the Petitioner and the Respondent.
M/s Avon Cycles Limited (ACL) ..... Petitioner

Maharashtra State Electricity Distribution Co. Ltd. ..... Respondent

Coram
Sanjay Kumar, Chairperson
I.M. Bohari, Member
Mukesh Khullar, Member
Appearance:

M/S Gujrat JHM Hotels Ltd. (GJHL) : Shri. Anand K. Ganesan (Adv.)
M/s Avon Cycles Limited (ACL) : Shri. Roshan S. Tanna (Adv.)

Maharashtra State Electricity Distribution Company Limited : Shri. Ravi Prakash (Adv)
(MSEDCL)

Order in Case No. 205 & 227 of 2021 Page 1

 COMMON ORDER
Date: 7 September 2021

1. The Wind Energy Generators viz M/S Gujrat JHM Hotels Ltd. (GJHL) and M/s Avon
Cycles Limited (ACL) have filed these cases seeking directions to the Maharashtra State
Electricity Distribution Company Limited (MSEDCL) for making payment of outstanding
dues in terms of Energy Purchase Agreements (EPAs) such as applicable Late Payment
Surcharge (LPS) or Delayed Payment Charge (DPC) along with penal interest of 1.25% per
month for supply of power from the Petitioner’s wind power projects.

2. GJHL in its Petition relied upon Section 86 (1) (e) and Section 86 (1) (f) of the Electricity
Act, 2003 (EA-2003). Similarly, ACL relied upon Section 86 (1) (f) of EA-2003 read with
Regulation 92, 93 and 94 of the MERC (Conduct of Business) Regulations,2005.

3. The Commission notes that in both the above Cases, Petitioners are seeking similar relief on
account of non-payment of dues. Therefore, the Commission is deciding these two cases
through this Common Order.
CASE NO. 205 OF 2020

4. The Petitioner GJHL filed Petition in Case No.205 of 2020 on 26 October,2020

5. Major prayers of GJHL are as follows:

a) Direct the Respondent to make payment of the outstanding amounts towards the interest
on delayed payment under the EPA due from April 2012 till August 2020 of Rs.
87,93,684/- (Rupees Eighty Seven Lakhs Ninety Three Thousand Six Hundred And Eighty
Four Only) as detailed in the present petition;

b) Direct the Respondent to pay carrying cost at the rate of 15% per annum of the delay in
payment of the DPC by the Respondent;

c) Order Interim and Ad-interim reliefs in terms of prayer (a) above;

….”

6. GJHL in its Petition has stated as follows:

Order in Case No. 205 & 227 of 2021 Page 2

 6.1. The Petitioner GJHL is a company engaged in the business of generation of electricity
having wind generating facility consisting of 4 x 0.8 MW wind turbine located at Gut No.
86/P of Village Gudhe (Gudhepanchagini Area), Tal: Shirala, Dist: Sangli. GJHL entered
into EPAs on 31 July 2006 for Location 13, 23 October 2006 for Location 14 and 31 July
2006 for Location 15 and 16 with MSEDCL.

6.2. As per provisions of EPA, GJHL is entitled to DPC at the rate of 2% per annum above
the State Bank of India short term lending rates, in the event of delay beyond a period of
forty-five (45) days from the date of receipt of invoice.

6.3. Pursuant to the execution of the EPA, GJHL had been raising invoices on MSEDCL for
the energy generated and supplied. MSEDCL has been regularly defaulting in making the
payments against invoices. Despite repeated requests and follow ups, MSEDCL has failed
and neglected to make payment towards outstanding invoices pertaining to the interest
since April 2012 to August 2020, as on 30 September 2020 for its Project. Rs. 87,93,684/-
is outstanding towards the interest from April 2012 till August 2020 under the EPA.

6.4. GJHL referred to the Commission Order dated 10 August 2020 in Case No. 23 of 2020,
wherein the Commission directed MSEDCL to pay the outstanding DPC as well the
interest thereafter, in the matter of Mrs. Geetha Pundaleeka v MSEDCL.

6.5. EPA is a valid and binding contract between the Petitioner and MSEDCL and the
obligation to pay survives even after expiry of EPA as per the terms of EPA including but
not limited to Clause 13.02 thereof and hence, MSEDCL ought to abide by the terms of
the EPA including payment in specified time and payment of interest in case of delay in
payment.

6.6. MSEDCL is further liable to compensate GJHL for the delay in payment of the DPC along
with interest/carrying cost till the time the amounts due and payable are fully paid to it.

6.7. For supporting its claim of DPC and interest thereon; the Petitioner referred to the
Commission’s Order dated 10 August 2016 in Case No. 150 of 2015 in the matter of
Hindustan Zinc Limited vs. MSEDCL, wherein the Commission upheld that MSEDCL is
liable to pay DPC on the outstanding payments.

6.8. MSEDCL had appealed against the above mentioned Order dated 10 August 2016 before
the Hon’ble Appellate Tribunal for Electricity (APTEL) and the APTEL vide its Order

Order in Case No. 205 & 227 of 2021 Page 3

 dated 24 April 2018 in Appeal No.75 of 2017 has upheld the decision of the Commission
and dismissed the Appeal for being devoid of merits.

Similarly, the Commission vide its combined Order dated 16 March 2017 in Case Nos.
53, 62, 68, 74, 75, 79, 135, 136 and 144 of 2016 (in the matter of Shah Promoters &
Developers and ors vs. MSEDCL) directed MSEDCL to pay the dues under the respective
energy purchase agreements along with DPC within specified time. Thereafter, interest
will accrue at 1.25% per month on any DPC amount remaining to be paid. MSEDCL
further challenged the Order dated 16 March 2017 before APTEL (Appeal Nos. 60, 61,
62, 63, 64, 65, 66, 67 and 68 of 2018). APTEL vide its Order dated 7 May 2018 dismissed
batch of Appeals and held that MSEDCL is liable to make payment as per EPAs including
DPC.

6.9. MSEDCL always takes a plea of cash flow constraints when it comes to making timely
payments. However, this is a farce and it is a major beneficiary of the Atma Nirbhar Bharat
Abhiyaan floated by the Ministry of Power wherein on 13 May 2020, a stimulus package
of Rs. 90,000/- crores has been announced for the State run Discoms. REC has already
released an amount of Rs. 2,500/- crores in June 2020 itself and the other Rs. 2,500/-
crores in July 2020. MSEDCL has further sought Rs. 5,000/- crores which is also being
considered. When MSEDCL has received an amount of Rs. 5000/- crores from REC and
PFC, it is not understood as to why this amount is not being utilized to clear the dues of
the existing RE generators, especially the wind generators such as GJHL.

CASE NO. 227 OF 2021

7. The Petitioner ACL filed Petition on 07 December 2020.

8. Prayers of ACL are as follows:

(a) Direct MSEDCL to releases the outstanding payments forthwith in accordance with
Article 12.02 of the EPA dated 06.08.2008;

(b) Direct MSEDCL to pay the Late Payment Charges (LPS) due on the outstanding bills
immediately in accordance with 12.02 of the EPA dated 06.08.2008;

(c) Direct that in addition to the above, an interest @ 15% per annum is applicable on the
payments as and when to be made by MSEDCL;

Order in Case No. 205 & 227 of 2021 Page 4

 ….

9. ACL in its Petition has stated as follows:

9.1. ACL is a Wind Generator operating a Wind generating facility with an installed capacity
of 1.5 MW at Village- Kanombe, Taluka- Sinnar, District- Nashik, Maharashtra. The
Petitioner entered into EPA with MSEDCL for a tenure of 13 years on 06 August 2008.

9.2. Since June-2019, MSEDCL is defaulting in making timely payments of the bills/invoices
raised by ACL. Bills from June-2019 till date have remained outstanding and have not
been paid by MSEDCL. Even after repeated reminders and requests, MSEDCL has failed
to make the payments of the outstanding bills and honor the terms of the EPA.

MSEDCL in July-2020 insisted ACL to furnish undertaking for giving waiver of

LPS/DPC. For making payment of outstanding bills the said undertaking was
precondition. Due to financial constraints, ACL was constrained to issue the said
undertaking on 07 July 2020. The undertaking had been provided by ACL for a specific
period and for specific tenure of bills which had remained outstanding. Despite the
undertaking being given by ACL, MSEDCL failed to release payments leading to expiry
of timelines specified in the undertaking and making the same null and void after 25 July
2020.

9.3. ACL contended that MSEDCL cannot in any manner whatsoever withhold genuine
demands/invoices for the energy so supplied and any such act would be in complete
violation of the terms of EPA. The EPA between the parties is sacrosanct and has to be
adhered to in true letter and spirit. Hence, any outstanding amount or payment received
after the due date must be settled in accordance with the Article 12.02 of the EPA.

9.4. MSEDCL has not disputed the liability of payments; hence, it cannot escape its liability
by citing alleged difficult cash flow situation arising out of regulatory issues in its ARR
or otherwise. It is the responsibility of MSEDCL to arrange funds and to make timely
payments to the generators based on contracts /regulations.

9.5. ACL referred to the Commission’s Order dated 15 June 2018 in Case No. 102 of 2018
wherein MSEDCL has been directed to settle the Principal Amount along with DPC and
Penal Interest @ 1.25% per month on the outstanding DPC.

Order in Case No. 205 & 227 of 2021 Page 5

 9.6. MSEDCL being a state utility cannot act in such a fashion by completely ignoring the
mandate of several Orders passed by the Commission time and again directing MSEDCL
to comply with the terms of the EPA and to make payments accordingly. ACL in its
submission also referred to the earlier Orders of the Commission and Judgements of
APTEL in the matter of wind energy arrears settlement and issues involving DPC.

10. MSEDCL in its Reply stated following:

Case Specific Submission: Case No.205 of 2020 dated 05 January 2021:

10.1. There is no outstanding principal amount in respect of GJHL. MSEDCL has paid principal
amount till July 2020 generation month. As per MSEDCL’s record DPC of Rs. 0.78
Crores is outstanding for a period from April -2012 to December-2018. GJHL has
Claimed DPC for period from April -2012 to August -2020.

10.2. It is categorically submitted that long term EPA with the GJHL expired in March (2
locations), June and September-2019 for the Location of 13, 14,15 &16, respectively.
GJHL has also claimed DPC for short term period power procurement, the details of the
same is as under:

Name of Short Term Wind mill

Sr. No. MW Location
Petitioner PPA Period Location
28.06.2019 to
1 0.8 13
31.03.2021
M/s Gujarat JHM
01.10.2019 to
2 Hotels 0.8 14
31.03.2021 Bhambarwadi,
Ltd (Wind
29.03.2019 to Sangli
3 Generator - 0.8 15
31.03.2021
Group -3)
22.03.2019 to
4 0.8 16
31.03.2021
However, as per term of short term EPA agreement there is no any Clause for DPC
payment, Hence, DPC is not applicable in this regard.

Case Specific Submission: Case No.227 of 2020 dated 11 January 2021

10.3. The principal amount outstanding, of ACL, is to the tune of Rs. 2.08 Crores for generation
months June-2019 to Oct-2020. As per MSEDCL’s record DPC of Rs. 0.21 Crores is
payable for period of June-2019 to Oct-2020, but it is yet to be reconciled.

Order in Case No. 205 & 227 of 2021 Page 6

 Generalised Submission:

10.4. MSEDCL is going through financial crisis due to COVID-19 epidemic and subsequent
lock down imposed by Central and State Authorities. With the restrictions during
lockdown, the MSEDCL is not be in a position to recover the dues from its consumers in
time. The situation has resulted in worsening of the cash flows of MSEDCL and payment
schedules.

10.5. In pre-covid period when MSEDCL’s revenue was in the range of 4500-5000Cr/month,
MSEDCL was not in position of timely payment to its generator and now during this
lockdown period the revenue has dropped to around 2000-2500Cr/month, it is very
difficult for MSEDCL to run its business. Hence, the MSEDCL is not able to fulfil its
financial obligation and is not in a position to pay the bills of the generators as well as
transmission companies.

10.6. The total payment of Rs. 3516.33 Crores in FY 2017-18, Rs.5807.77 Crores in FY 2018-
19, Rs.3402.11 Crores in FY 2019 -20 and Rs.604.83 Crores in F.Y 2020-21 Crores (till
31.12.2020) has already been done to various wind generators.

10.7. The delay in payment is neither deliberate nor intentional and is solely attributable to the
financial constraint of MSEDCL.

10.8. MSEDCL has approached various financial Institutions for borrowing loan in order to
repay the outstanding payments of various Renewable energy generators. MSEDCL has
applied for loans, and it is expected that it will be sanctioned by Financial Institution in a
month’s time.

10.9. The Petitioners have prayed for the payment of carrying cost at the rate of 15% per annum
of the delay in payment of the late/delayed payment surcharge by MSEDCL. In this regard
it is to submit that in respect of said issue MESDCL has filed the Appeal before APTEL
challenging 1.25% Penal Interest stipulated in MERC Order in Case No 105 of 2019 dated
2 August 2019 and appeal is still pending before tribunal for final judgement, and Final
hearing in this matter is schedule on 21 January 2021 before APTEL.

10.10. Payment for the energy supplied, along with payment of DPC for late payments, is a
basic and express obligation of MSEDCL under the EPAs, and the failure to discharge

Order in Case No. 205 & 227 of 2021 Page 7

 it or to cure such failure within the stipulated time is an event of ‘immediate default’ and
would, therefore, entitle the Seller to terminate the EPAs as per Clauses in EPA.

11. Petitioners in their Rejoinder stated following:

Case Specific Submission: Case No.205 of 2020 dated 12 January 2021

11.1. MSEDCL has not understood the case of GJHL at all and is contending that that GJHL is
seeking DPC by way of the present Petition. The claim of the Petitioner is not for DPC
but the interest on DPC in the terms of the dispensation laid down by the Commission in
earlier such matters. MSEDCL has also admitted that it delayed the payments to GJHL
for the electricity supplied to it in the period April 2012 to December 2018. The amounts
were paid with substantial delay and the applicable DPC. However, the interest on DPC
was not paid which is being sought by way of the present Petition.

11.2. The dispute is not for the period from December 2018 onwards and the fact that the
principal amounts for the subsequent period till July 2020 stand paid.

11.3. On one hand, MSEDCL is denying any amount outstanding to GJHL and on the other, it
is itself admitting to Rs. 0.78 Crores as the outstanding DPC for the period of April – 2012
to December – 2018.

11.4. COVID -19 has nothing to do with the disputed period which is April 2012 to December
2018.

Case Specific Submission: Case No.227 of 2020 dated 13 January 2021

11.5. MSEDCL is seeking to take undue advantage of the prevalent COVID-19 situation to
resile from its obligations under the EPA. In any case, the dues of ACL are outstanding
since June 2019, i.e. prior to the COVID-19 pandemic, and therefore, the contention of
MSEDCL that the same has affected its performance of the obligations under the EPA is
not acceptable.

11.6. In various matters, despite Orders of the Commission, MSEDCL has not cleared the
outstanding dues of wind generators. In fact, various generators have also filed petitions
on account of non-compliance of the Commission’s Orders, and despite the Commission
Orders in such Petitions directing MSEDCL to clear the outstanding dues, MSEDCL has
failed to comply with the Orders/directions of the Commission.
Order in Case No. 205 & 227 of 2021 Page 8
11.7. MSEDCL has made similar submissions in other matters regarding availing loan from
financial institutions for clearing dues. It has been observed that MSEDCL has failed to
honour its commitments given to other Generators in their respective Petitions. In this
matter also it is just repeating its submission.

11.8. The Petitioner submits that the EPA dated 6 August 2008 is valid, subsisting and
therefore, also binding upon the parties. In any case, termination notwithstanding,
MSEDCL would still be bound to pay the outstanding dues of the Petitioner as accrued
till date, including any future dues that may arise during the subsistence of the EPA.

Common Submission:

11.9. MSEDCL is relying upon its Appeal No. 386 of 2019 against this Hon’ble Commission’s
order dated 02 August 2019 passed in the Case No. 105 of 2019, which is still pending
adjudication before the APTEL. It is submitted that since the above Appeal is still pending
adjudication and there has been no interim orders in favor of MSEDCL suspending the
operation of the Order dated 02 August 2019 by the Hon’ble APTEL. Hence, the
MSEDCL cannot rely upon the same.

12. E-hearing in Case No.205 of 2020 and Case No.227 of 2020 were held on 13 January 2021
and 19 January 2021, respectively. In both the Cases, the Commission noted that the
MSEDCL did not dispute its liability but stated that there was need for reconciliation of
amount. Accordingly, the Commission directed the parties involved to sit together for
reconciliation of the Principal & DPC amount and after such reconciliation exercise,
MSEDCL shall commit to Petitioners a firm timeline by which reconciled amount would be
paid.

13. MSEDCL in its common submission dated 26 February 2021 stated as follows:

13.1. Reconciliation of the Principal & DPC amounts has been completed. With regards to
payment plan, MSEDCL referred to its submission in compliance report in Case
No.124,125,126,184,185,186,148,156,173 of 2020 dated 15 February 2021.

13.2. Payment Plan as referred by MSEDCL mentions that it is facing acute shortage of funds
in last 9-10 months due to non-recovery of dues against energy bills form the consumers.
As per Government of Maharashtra directives, MSEDCL has given number of
concessions to various agencies such as relaxation in security deposit to vendors for
Order in Case No. 205 & 227 of 2021 Page 9
 material suppliers and contractors, deferment of payment of fixed charges to consumers
etc. These measures have affected the cash flows of MSEDCL.

13.3. In absence of sufficient realization of revenue, the liabilities have been met by raising the
loans from Banks/financial institutions and implementing measures such as bill
discounting. Raising loan is not a viable option now since it will add up the burden of
interest cost.

13.4. MSEDCL has to prioritize the payment liability and clear the dues of Generators who
have offered the waiver of DPC/Discount in Energy bills.

13.5. MSEDCL has offered a scheme of Bill Discounting to vendors having past dues above 10
Lakhs and shown interest in the same. MSEDCL mentioned that the current situation will
improve within 1 year, by which time MSEDCL will be able to clear all dues.

14. GJHL vide its written submission dated 09 March 2021 submitted as follows:

14.1. It has reconciled the pending bills as on 30 September 2020 with MSEDCL on 25 January
2021 as per the Daily Order passed by the Commission dated 13 January 2021.
The reconciliation was completed for the basic value of the invoices as DPC will be
calculated as on date on which payment is received from MSEDCL.

14.2. In the Daily Order, MSEDCL was directed to provide a firm timeline/ date to clear the
dues. However, MSEDCL in its compliance submission provides a vague payment plan
which does not provide for a firm timeline/ date to clear the dues payable to GJHL towards
outstanding invoices pertaining to the interest since April 2012 to August 2020. MSEDCL
is only trying to intentionally delay the payments and completely ignore the directions
passed by the Commission.

14.3. The project of GJHL is a funded project. GJHL is required to service the debt on monthly
basis in timely manner. Non-payment for such prolonged period and delayed payments
even after expiration of EPA is causing severe constraint on other businesses of GJHL.
Therefore, the Commission is requested to impose a penalty both under Section 142 on
MSEDCL as well as on all the erring officers under section 146 of the Electricity Act,
2003.

15. MSEDCL in its Additional submission dated 14 June 2021 stated as follows:

Order in Case No. 205 & 227 of 2021 Page 10

 Case No.205 of 2021

15.1. GJHL has claimed DPC amount Rs. 0.88 Crores for the generation period between April
2012 to August 2020. Pertinently, the said claim of DPC was reconciled between the
MSEDCL and the Petitioner, wherein the reconciled DPC of Rs.0.63 Crores has already
been paid to the Petitioner on 26 April 2021 for the period April 2012 to September 2019.

15.2. Petitioner has claimed DPC for the period Oct 2019 to August 2020 for short term
agreement and there is no DPC payment clause in short term PPA agreement. Hence,
same is not considered.

Case No.227 of 2021

15.3. ACL has claimed a principal amount of Rs. 2.08 Crores for generation month of June-
2019 to October-2020. However, due to its precarious financial position, MSEDCL was
only in a position to pay the principal outstanding amount of Rs.1.15 Crores against the
total of Rs.2.08 crores, on 27 May 2021 for the period between December 2018 to
December 2019 of generation month.

15.4. MSEDCL will release the remaining outstanding dues as per availability of funds, on the
best effort basis.

15.5. ACL has also claimed a DPC amount Rs. 0.21 Crores, for the generation period between
June 2019 to October 2020. Pertinently, the said claim of DPC was reconciled between
the MSEDCL and the Petitioner, wherein the reconciled DPC of Rs.0.21 Crores has
already been paid to the Petitioner on 26 April 2021.

15.6. Along with above submission on merits, MSEDCL in both Cases elaborated on
difficulties faced by it during ongoing pandemic situation.

16. At the E-hearing held on 15 June 2021, the Commission noted that many wind generators
are approaching the Commission for settlement of dues for energy injected. The Commission
is also considerate towards MSEDCL’s disturbed cashflows in current pandemic situation.
In such circumstance, the Commission suggested that MSEDCL should devise a plan in
consultation with wind generators for arrears settlement and arrears reconciliation.

17. MSEDCL in its submission dated 25 June 2021 stated as follows:

Order in Case No. 205 & 227 of 2021 Page 11

 17.1. Despite critical financial situations due to outbreak of pandemic and its further
implications on the revenue, MSEDCL has made payments of around Rs 870 crores in
FY 2020-21 and around Rs.570 Crores in FY 2021-22 to various wind generators.

17.2. Considering current financial condition, MSEDCL intends to make payments upto the
generation month of December-2020 in coming 6 months.

Generation Month Probable liability

as on 31.12.2020
(Rs. in Crores)
January-2020 to March-2020 200
April-2020 to June-2020 555
July-2020 to September-2020 880
October-2020 to December-2020 330
Upto December-2020 1965

17.3. Payment plan for the outstanding payments after December-2020 will be submitted later
on as per financial condition of MSEDCL. Apart from above, MSEDCL narrated its
financial conditions after COVID-19 Pandemic.

18. MSEDCL in its Additional submission dated 5 August 2021 stated as follows:

18.1. With regards to outstanding dues settlement, MSEDCL reiterated its submission dated 14
June 2021, which is not repeated for sake of brevity.

18.2. MSEDCL in its submission in Case No.227 of 2020 mentioned that as per directive of the
Commission in its Daily Order dated 15 June 2021 MSEDCL conducted the meeting with
wind generators on 09 July 2021 and requested the generators to provide any suggestions
regarding the payment of generators dues considering the MSEDCL’s precarious financial
position. However, no consensus has been reached between the parties.

19. At the E-hearing held on 6 August 2021, both parties reiterated their submission made in
Petition/Reply.

Commission’s Analysis and Rulings

20. The Commission notes that in Case No.205 of 2020, principal amount is not outstanding and
Petitioner, GJHL is seeking DPC for delayed payment for the generation month from April

Order in Case No. 205 & 227 of 2021 Page 12

 2012 to August 2020 along with carrying cost on such delayed payment of DPC amount.
Whereas, in Case No.227 of 2020, the Petitioner ACL seeks outstanding Principal amount,
accrued DPC and carrying cost on unsettled DPC amount. Details of outstanding payments
claims, as per the Petitions are depicted in table below:

Generator Amount Due Period

GJHL (As on 30 Principal- No Claim -
September 2020) DPC-0.88 Crores April-2012 to August-2020
ACL (As on 30 Principal- 2.08 Crores June-2019 to October-2020
November 2020) DPC-0.21 Crores June-2019 to October-2020

Calculation of interest on delayed payment of DPC has not been furnished on the ground that,
it will be decided on effective date of payment of DPC.

21. MSEDCL during the course of hearing on 6 August 2021 summarised its submission in reply
through claim settlement matrix pertaining to various wind Generators. After perusal of claim
settlement matrix following is evident:

Generator Amount Due Period

As claimed
GJHL (As on 30 Principal- No Claim
September 2020) DPC-0.88 Crores April-2012 to August-2020
ACL (As on 30 Principal- 2.08 Crores June-2019 to October-2020
November 2020) DPC-0.21 Crores June-2019 to October-2020
As Settled by MSEDCL
Principal- No
Claim
GJHL
Paid on 26 April
DPC-0.63 Crores April-2012 to September-2019
2021
ACL Principal- 2.08 Paid Rs. 1.15 Cr
June-2019 to December-2019
Crores on 27 May 2021
Paid Rs. 0.21 Cr.
DPC-0.21 Crores June-2019 to October-2020
on 26 April 2021

22. Considering arguments and submission on record, the Commission notes following:

a. In case of Petition of GJHL claim of DPC have been reconciled between the MSEDCL
and GJHL. The reconciled DPC amounts to Rs.0.63 Crores for the period April 2012 to
September 2019 has already been paid to GJHL on 26 April 2021. GJHL’s claim of DPC
Order in Case No. 205 & 227 of 2021 Page 13
 for the period October 2019 to August 2020 is pertaining to short-term power
procurement. As per MSEDCL, Short Term EPA do not have provision for payment of
DPC and hence it is not payable.

b. In case of ACL, out of claimed principal amount of Rs. 2.08 Crores for generation month
of June-2019 to October-2020, MSEDCL has cleared only Rs.1.15 Crores on 27 May
2021 for the period up to December 2019. Whereas reconciled DPC amount of Rs. 0.21
Cr has been paid on 26 April 2021.

c. MSEDCL has not paid interest on delayed payment of DPC to any of the Petitioner.

d. Instead of specific timelines for clearing outstanding dues to the Petitioners, MSEDCL
has submitted generic timelines of 6 months for clearing outstanding dues upto
generation month of December 2020 and has stated that timeline for clearing subsequent
payments will be submitted latter.

e. MSEDCL in its submission has presented COVID-19 pandemic scenario for disruption
in its revenue stream and delay in clearing payments which is not deliberate. Further,
MSEDCL has termed COVID-19 pandemic as force majeure circumstance.

23. On the issue of financial difficulties currently being faced by MSEDCL on account of
COVID-19, the Commission in recent Order dated 5 August 2021 in the similar issues of non-
payment of Wind Energy dues, has made following observations:

“21. The Commission is aware of the financial difficulties of MSEDCL especially

during the Pandemic period but it also notes that the payable amounts was much prior
to the onset of Pandemic. The Commission would also like to advise MSEDCL about
its contractual obligations and they being a state utility it is expected to lead by example,
by working on options to sort out their Financial Difficulties. The least that is expected
from them is timely reconciliation (if required) of amounts and payment plan which needs
to be worked out transparently.” [emphasis added]

Above ruling is squarely applicable in present matter. Accordingly, MSEDCL should take
efforts to pay outstanding dues.

24. With above observations, the Commission notes that following issues needs to be decided in
the present matter:
a. Applicability of Delayed Payment Charges in Short Term EPA/PPA
Order in Case No. 205 & 227 of 2021 Page 14
 b. Payment of interest on delayed payment of DPC
c. Specific timelines for releasing outstanding dues.
The Commission is addressing these issues in following paragraphs.

25. Applicability of Delayed Payment Charges in Short Term EPA/PPA:

25.1. From reconciliation exercise in Case No. 205 of 2020 with respect to Petitioner GJHL, it is
observed that GJHL’s DPC claim includes period under two types of EPA/PPAs i.e. April
2012 to September 2019 under Long Term EPA and October 2019 to August 2020 under
Short Term PPA/EPA. MSEDCL has paid reconciled DPC amount for period of April 2012
to September 2019 under Long Term EPA, but has refused to pay such DPC for the period
under Short Term PPA/EPA on the ground that Short Term PPA/EPA does not have any
provisions for payment of DPC.

25.2. The Commission notes that this issue of payment of DPC under Short Term EPA/PPA has
been decided in Order dated 17 August 2020 in Case No. 2 of 2020 (MSPL Ltd. Vs
MSEDCL) as follows:

“11.3 Thus, substantial outstanding principal amount has been paid by MSEDCL against
STPPAs and only 2 months amount is pending now. However, there seems to be
disagreement amongst the contracting parties on applicability of DPC under STPPAs.
While MSPL Ltd has claimed late payment surcharge / DPC at the rate of 1.25% per
month as per the provisions MERC Regulations, 2015 and RE Tariff Regulations, 2019,
MSEDCL has opposed such contention on the ground that STPPAs executed with MSPL
Ltd do not have clause for DPC payment.

11.4 The Commission notes that it is admitted fact that STPPA does not have clause
relating to late payment surcharge / DPC for delayed payment. However, MSPL has
relied upon MERC RE Tariff Regulations to claim such DPC. The Commission notes that
MSEDCL’s proposal of purchasing short term power from Wind generators whose EPA
has been at Rs. 2.25/kWh for Group I projects and at Rs. 2.52/kWh for Group II to IV
projects and the same was approved by the Commission in its Order dated 15 November
2017 in Case No. 155 of 2017. In that Order, while allowing proposal of MSEDCL, the
Commission has made following observations on terms of EPA:

“7. MSEDCL has stated that it has already agreed to short-term procurement of
Wind Energy, at Rs. 2.52 per unit, from 103 Group II Generators whose EPAs
with MSEDCL have expired but whose Projects have some remaining useful life.

Order in Case No. 205 & 227 of 2021 Page 15

 Several Group II and IV Generators have also approached MSEDCL for entering
into fresh EPAs after the original EPA periods. MSEDCL has proposed to procure
Wind Energy from them also at the same rate for short-term periods not less than
3 months. For Group I Projects, MSEDCL proposes to enter into short-term
EPAs at Rs. 2.25 per unit. The quantum of such procurement is sought to be
counted towards MSEDCL’s non-Solar RPO. The Commission’s findings on this
proposal are as follows:
……………….
4) Since the other provisions of the fresh EPAs entered or proposed to be entered
into by MSEDCL have not been set out in its Petition, the Commission presumes
that they are in consonance with the past stipulations of the Commission and
the rulings of the Appellate Tribunal for Electricity.”

Thus, while approving MSEDCL’s proposal for short term procurement of Wind Power,
the Commission noted that conditions of Short term EPAs need to be consonance with the
past stipulations of the Commission and ruling of the APTEL. Therefore, DPC which is
integral part of earlier EPAs and RE Tariff Regulations, needs to be included in Short
Term PPAs. Hence, the Commission directs MSEDCL to pay DPC for delayed payment
of principal amount as per provisions of relevant applicable provisions of RE Tariff
Regulations.” [emphasis added]

Thus, in above Order, the Commission has clearly ruled that short term EPA/PPAs which
are being signed post expiry of generic tariff based long term EPAs should include
provisions of DPC and accordingly allow levy of DPC even though no such specific clause
is mentioned in the Short-Term EPA/PPA.

25.3. Above said ruling is squarely applicable in the present matter and accordingly, the
Commission rules that MSEDCL is liable to pay DPC to GJHL for delay in payment of
principal amount under Short Term PPA.

26. Payment of interest on delayed payment of DPC :

26.1. Petitioners by refereeing to Orders dated 10 August 2016 and 16 March 2017 in the matter
of other Wind Generators have requested for interest on delayed payment of DPC.
MSEDCL has stated that they have challenged that Order before the APTEL. MSEDCL
has not paid interest on delayed payment of DPC to Petitioners in present cases.

Order in Case No. 205 & 227 of 2021 Page 16

26.2. In this regard, the Commission notes that the interest on delayed payment of DPC is not
part of EPA/PPA signed between parties. The Commission has ordered such levy of interest
on delayed payment of DPC in Order dated 10 August 2016 in respect of M/s Hindustan
Zinc Ltd as follows:

“11. In view of the foregoing, the Commission directs MSEDCL to pay the late payment
surcharge due to HZL as per Section 11.04 of the EPA within 30 days. Thereafter, interest
will be payable to HZL at 1.25% per month on any surcharge amount remaining to be
paid.”

As per the above dispensation, interest on delayed payment of DPC was applicable only if
MSEDCL fails to pay DPC/LPS to M/s Hindustan Zinc Ltd within 30 days as directed in
above quoted Order. Similar dispensation is allowed subsequently to other Wind
Generators. It is important to note that main criteria of allowing such interest is MSEDCL’s
failure to pay outstanding DPC within timeline stipulated by the Commission in respective
orders. Thus, the Commission has given opportunity to MSEDCL to pay outstanding DPC
within stipulated time or else interest will be levied.

26.3. In case of present Petitioners there is no previous Orders of this Commission to pay interest
on delayed payment of DPC. Admittedly, such provision is not part of EPA/PPAs signed
between parties and the Commission has allowed it through regulatory Order only in case
MSEDCL fails to meet extended timelines stipulated in Order for payment of outstanding
dues. As no such Orders have been passed in the past in respect of Petitioners, it will not
be correct to allow levy of interest for delayed payment of DPC in the past.

26.4. However, for any future delayed payment of DPC beyond the date stipulated in subsequent
part of this Order, MSEDCL shall pay interest on outstanding amount of DPC.

27. Specific timelines for releasing outstanding dues:

27.1. The Commission in its respective Daily Order in these cases has directed MSEDCL as
follows:

“a. Both parties to sit together for reconciliation of outstanding amount and after such
reconciliation exercise, MSEDCL shall commit to Petitioner a firm timeline by which
reconciled amount would be paid. This exercise shall be completed within 2 weeks.”

Order in Case No. 205 & 227 of 2021 Page 17

 Thus, the Commission had specifically directed MSEDCL to commit firm timeline by
which outstanding amount shall be paid to the Petitioners. However, in reply MSEDCL has
only submitted that outstanding dues till generation month of December 2020 will be paid
within six months and timelines for payment of subsequent dues will be submitted later
based on availability of fund.

27.2. Such causal approach towards compliance of specific directives of the Commission in
meeting its contractual obligations cannot be permitted. Although, considering financial
issues highlighted by the MSEDCL in its reply, the Commission can allow payment, of
outstanding amount upto December 2020, upto December 2021, MSEDCL needs to
communicate specific date/s by which payment of outstanding principal amount, DPC will
be paid to the Petitioners. If MSEDCL does not pay outstanding DPC amount within such
communicated date, then it shall be liable to pay interest on outstanding DPC amount with
prospective effect.

28. In view of above ruling on the issues framed, the Commission notes that in the present matter,
only DPC amount in respect of GJHL is outstanding and in case of ACE, principal as well as
DPC amount is outstanding. MSEDCL shall communicate Petitioners, within 2 week, specific
date/s for payment of such outstanding dues. If MSEDCL fails to pay DPC amount within
such committed date/s, then outstanding DPC amount will be subjected to interest at the rate
of 1.25% per month with prospective effect.

29. Hence, the following Order:

ORDER

a. The Case Nos. 205 and 227 of 2020 are partly allowed.

b. As directed in Para 28, Maharashtra State Electricity Distribution Company

Limited shall settle outstanding dues.

Sd/- Sd/- Sd/-

(Mukesh Khullar) (I.M. Bohari) (Sanjay Kumar)
Member Member Chairperson

Order in Case No. 205 & 227 of 2021 Page 18