1

BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY

COMMISSION, AT NEW DELHI

PETITION NO. MP/2022

IN THE MATTER OF:

Petition under Section 79(1)(b) read with Section 79(1)(f) of the Electricity
Act, 2003 seeking, inter alia, quashing of the purported invoice dated
14.12.2021 raised by the Respondent No. 1 on the Petitioner and for refund of
Rs 59,58,745 wrongfully and illegally deducted by the Respondents

AND IN THE MATTER OF:

DB Power Ltd. ... PETITIONER

VERSUS

NTPC Vidyut Vyapaar Nigam Ltd. and Ors ...RESPONDENTS

PAPERBOOK

[FOR INDEX KINDLY SEE INSIDE]

KHAITAN & KHAITAN

ADVOCATE FOR THE PETITIONER
 2

BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY

COMMISSION, AT NEW DELHI
PETITION NO. MP/2022

IN THE MATTER OF:-

DB Power Ltd. ... PETITIONER

VERSUS

NTPC Vidyut Vyapaar Nigam Ltd. ...RESPONDENT

INDEX

S. No. PARTICULARS PAGE NO.

1. Petition under Section 79(1)(b) read with Section 4 - 18
79(1)(f) of the Electricity Act, 2003 seeking, inter
alia, quashing of the purported invoice dated
14.12.2021 raised by the Respondent No. 1 on the
Petitioner and for refund of Rs 59,58,745 wrongfully
and illegally deducted by the Respondents along with
supporting affidavit
2. Annexure A: True copy of the RFP issued by the
Respondent No. 2 19 – 38

3. Annexure B: True copy of Letter dated 14.09.2021

by the Petitioner granting authorisation to the
39
Respondent No. 1 to participate in the tender
invited by Respondent No. 2
4. Annexure C: LOI dated 01.10.201 issued by
40
Respondent No. 2 in favour of Respondent No. 1
5. Annexure D: LOI dated 04.10.201 issued by
41
Respondent No. 1 in favour of Petitioner
6. Annexure E: True copy of invoice dated 14.12.2021
42 - 45
raised by Respondent No. 1
7. Annexure F: True copy of letter dated 15.12.2021
46 - 47
by the Petitioner to Respondent No. 1.
 3

8. Annexure G: True copy of Respondent No. 1’s letter

48
dated 16.12.2021 to the Petitioner.
9. Annexure H: True copy of Respondent No. 1’s letter
49
dated 21.12.2021 to the Respondent No. 2.
10. Vakalatnama along with Board Resolution 50 - 51
11. Form-I 52 - 55

PETITIONER

FILED BY

Deepak Khurana

Khaitan & Khaitan

Place: New Delhi
Date: 01.04.2022
Advocates for the Petitioner
A-38, Kailash Colony
New Delhi- 110048
Phone: 011-49774545/9811231287
Email: deepak.k@khaitanandkhaitan.com
 4

BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY

COMMISSION, AT NEW DELHI

PETITION NO. MP/2022

IN THE MATTER OF:

Petition under Section 79(1)(b) read with Section 79(1)(f) of the Electricity
Act, 2003 seeking, inter alia, quashing of the purported invoice dated
14.12.2021 raised by the Respondent No. 1 on the Petitioner and for refund of
Rs 59,58,745 wrongfully and illegally deducted by the Respondents

AND IN THE MATTER OF:

DB Power Ltd.
Having its registered office at:
Office Block 1A, 5th Floor,
Corporate Block, DB City Park,
DB City, Arera Hills,
Opposite MP Nagar, Zone-I,
Bhopal-462016.

Also at
C-31, Naman Corporate Link
3rd floor, G Block,
Opposite Dena Bank,
Bandra Kurla Complex,
Bandra (East),
Mumbai – 400051
Through its Authorized Signatory
Shri Ajay Kumar Kaithwash ... PETITIONER

VERSUS

NTPC Vidyut Vyapaar Nigam Ltd.

2nd Floor, Core-5, SCOPE Complex,
7, Lodhi Rd, Institutional Area,
New Delhi, Delhi 110003
Through CEO
Phone: +91-11-24387741
Email: contact_nvvn@ntpc.co.in …Respondent No. 1
 5

Gujarat Urja Vikas Nigam Limited (GUVNL)

Sardar Patel Vidyut Bhavan,
Race Course Vadodara – 390 007
Through General Manager (Commerce)
Phone: (0265) 2334751 / 9925211205
Email: coacom@gebmail.com; jecom3.guvnl@gebmail.com
…Respondent No. 2

PETITION UNDER SECTION 79(1)(b) READ WITH SECTION 79(1) (f)

OF THE ELECTRICITY ACT, 2003

THE HUMBLE PETITION OF THE

PETITIONER NAMED HEREINABOVE

MOST RESPECTFULLY SHOWETH:

1. The Petitioner is a generating company incorporated under the

Companies Act, 1956. The Petitioner has set up 1200 MW (2 x 600) Thermal

Power Plant at Village Badadarha, in District Janjgir Champa, Chhattisgarh and

both of its units are presently in operation. The Petitioner is supplying power to

more than one state and has a composite scheme for the generation and sale of

electricity as envisaged under Section 79(1) (b) of the Electricity Act 2003. The

Petitioner is supplying 208 MW of power to Tamil Nadu Generation and

Corporation Ltd. under a long term PPA, 311 MW power to Rajasthan Discoms

through PTC India Ltd. under long term PPA, 5% of the net generated power to

the State of Chhattisgarh under a long term PPA, in addition to the present

supply made by the Petitioner.

 6

2. The Respondent No. 1 is an inter-State trading licensee, who has been

granted Category - I electricity trading license by this Hon’ble Commission

under the Indian Electricity Act, 2003, carrying out its trading activities

through its trading division, located at New Delhi.

3. The Respondent No. 2 is a Govt. of Gujarat Undertaking and is engaged

in the activity of bulk purchase and sale of electricity in Gujarat for & on

behalf of its Distribution Companies and is the ultimate purchaser of the power

in question.

4. The facts and circumstances leading to filing of the present petition are

enumerated herein below in the following paragraphs. The Petitioner reserves

its rights to substantiate its Petition with further documents and submissions

with the leave of this Hon’ble Commission, if and when required.

(i) That in September, 2021, the Respondent No. 2 issued a request for

proposal (“RFP”) for inviting bids for procurement of power on

short-term basis through tariff based competitive bidding process.

Copy of the RFP issued by the Respondent No. 2 is annexed hereto

and marked as Annexure-A.

 7

(ii) That pursuant to the said invitation of bids by Respondent No. 2, the

Respondent No. 1 approached the Petitioner to enquire if the

Petitioner was desirous of supplying power as required in the RFP.

The Petitioner vide its Authorisation Letter dated 14.09.2021

granted authorisation to the Respondent No. 1 to participate in the

tender invited by Respondent No. 2 on behalf of the Petitioner.

Copy of Authorisation Letter dated 14.09.2021 is annexed hereto

and marked as Annexure-B.

(iii) Upon conclusion of the bidding process, the Respondent No. 1

emerged as a successful bidder for the following quantum at the

following tariff:-

Period Duration Quantum Delivery Point Rate

(Hours) (MW) (Rs./kWh)
at
Delivery
Point
1.11.2021 00:00 to 100 MW Gujarat State 3.92
to 24:00 Transmission
30.11.2021 (RTC) Periphery
1.12.2021 (GETCO 3.84
to Periphery)
31.12.2021 (Interconnection
of Gujarat STU
and CTU)

(iv) Further to the above, the Respondent No. 2 issued a letter of intent

dated 01.10.2021 (“LOI 1”) in favour of Respondent 1 to off-take

 8

power on short term basis. Pursuant to the said LOI 1, the

Respondent No. 1 issued a letter of intent dated 04.10.2021 (“LOI

2”) to the Petitioner for purchase of power from the Petitioner for

onward sale to Respondent No. 2.

Copies of LOI 1 and LOI 2 are annexed hereto and marked as

Annexure-C and Annexure-D respectively.

(v) It is pertinent to note that the LOI 2 mentions commercial terms

agreed between the Petitioner and the Respondent No. 1 whereby the

Respondent No. 1 is obligated to ensure timely payment of energy

bills to the Petitioner, irrespective of its receipt from Respondent No.

2. The LOI 2 further mentions that the rest of the terms &

Conditions shall be as per Respondent No. 2’s LOI, tender document

(i.e. the RFP) and e-mail communication between the Petitioner and

the Respondent No. 1 dated 14.09.2021.

(vi) It is pertinent to note that in terms of Clause 24 of the RFP, both the

parties would ensure that actual scheduling does not deviate by more

than 15% of the contracted power (i.e. 100 MW) as per the approved

open access for the monthly basis (for each requisition separately).

The said provision stipulates that in case the deviation from the

Respondent’s No. 2’s side is more than 15% of contracted energy for

which open access has been allocated on monthly basis, the

 9

Respondent No. 2 shall pay compensation at 20% of Tariff per kWh

for the quantum of shortfall in excess of permitted deviation of 15%.

Likewise, in case the deviation is from the Petitioner’s side, the

Petitioner is liable to pay such compensation. Clause 24 of the RFP

is reproduced below:

“24. PAYMENT OF LIQUIDATED DAMAGES FOR

FAILURE TO SUPPLY THE CONTRACTED

CAPACITY

i) Both the parties would ensure that actual scheduling does

not deviate by more than 15% of the contracted power as
per the approved open access for the monthly basis (for
each requisition separately).

iii) In case deviation from GUVNL’s side is more than 15%

of contracted energy for which open access has been
allocated on monthly basis, GUVNL shall pay compensation
at 20% of Tariff per kWh for the quantum of shortfall in
excess of permitted deviation of 15%, while continuing to
pay open access charges as per terms and condition of the
contract.

iii) In case deviation from Seller’s side is more than 15% of

contracted energy for which open access has been allocated
on monthly basis, Seller shall pay compensation to GUVNL
at 20% of Tariff per kWh for the quantum of shortfall in
excess of permitted deviation of 15% in the energy supplied
 10

and pay for the open access charges to the extent not
availed by the GUVNL.

iv) The liquidated damages shall be worked out separately

for each requisition

iv) The bill towards liquidated damages (as stipulated in this

RFP document) shall be along with Energy bills as per
Point 19 above.”

(vii) That the Respondent No. 1, vide its invoice dated 14.12.2021 raised

a purported claim for compensation amounting to Rs. 59,58,745 on

account of shortfall of scheduling by the Petitioner for period from

01.11.2021 to 30.11.2021.

True copy of the invoice dated 14.12.2021 is annexed hereto and

marked as Annexure-E.

(viii) At this juncture, it is pertinent to note that the Clause 24 of RFP

allows the Petitioner to deviate up to 15% of contracted energy for

which open access has been allocated on monthly basis without

payment of any compensation. The deviation from the Petitioner’s

end for the period for which the invoice for compensation was issued

was only to the extent of 10.103MU which is 14 % of the contracted

energy (for which open access had been allocated). However, the
 11

Respondent No. 1 wrongfully included the deviation from the

Respondent No. 2’s end as well and considered this cumulative

deviation above the allowed limit of 15%, for raising the said

purported invoice for compensation. It is pertinent to note that

Clause 24(i) of the RFP is general and provides that both the

Petitioner and Respondent No. 1 would ensure that the actual

scheduling does not deviate by more than 15% of the contracted

power as per the approved open access for the monthly basis. The

said clause nowhere provides for any cumulative deviation from the

Petitioner and the Respondent No. 1, much less the same being a

trigger for payment of compensation under the said clause. It is

further pertinent to submit that Clause 24 (iii) specifically provides

that the seller i.e. the Petitioner is only liable to pay for deviation if

the deviation from its side is more than 15% of contracted energy

(for which open access has been allocated on monthly basis). Thus,

Clause 24 (iii) is clear in its operation. Likewise, there is specific

separate clause for payment of compensation by Respondent No. 1 in

case there is deviation from its side i.e. Clause 24 (ii) (wrongly typed

as (iii) in the RFP]. In the present case, admittedly, there being no

deviation of more than 15% from the Petitioner’s side, the Petitioner

is thus not liable to pay any compensation.

 12

(ix) In light of the above, the Petitioner vide its letter dated 15.12.2021,

rightfully requested the Respondent No. 1 to withdraw the said

invoice. It is pertinent to highlight that in the said letter dated

15.12.2021, the Petitioner mistakenly mentioned the deviation from

its end as 101 MU, instead of 10.103 MU.

True copy of the letter dated 15.12.2021 is annexed hereto and

marked as Annexure-F.

(x) The Respondent No. 1 by its letter dated 16.12.2021 admitted that

the individual deviation by both the Petitioner as well as the

Respondent No. 2 is less than 15% of the contracted energy (for

which open access had been allocated). However, Respondent No. 1

alleged that as overall revised quantum (by both the Petitioner and

the Respondent No. 2) exceeds 15% of contracted quantum, thereby

violating Clause 24(i) of the RFP. Further, the Respondent No. 1 also

stated that owing to the alleged violation, the Respondent No. 2 had

deducted the said compensation from Respondent No. 1 and

accordingly based of the said deduction, the Respondent No. 1 has

raised the alleged invoice on the Petitioner while taking up the said

dispute on compensation with Respondent No. 1. The Respondent

 13

No. 1 also threatened to recover the amount under the alleged

invoice from its next payment.

True copy of the letter dated 16.12.2021 is annexed hereto and

marked as Annexure-G.

(xi) That further to the letter dated 16.12.2021, the Respondent No. 1

wrote a letter to Respondent No. 2 on 21.12.2021 stating that

deviation from the side of the seller i.e. the Petitioner is within the

allowable limits and accordingly requested for refund of the

compensation already deducted from Respondent No. 1. This is in

conformity with the stand of the Petitioner.

Copy of the letter dated 21.12.2021 is annexed hereto and marked as

Annexure-H.

(xii) It is however submitted that subsequently the Respondent No. 1 has

deducted the said amount of Rs. 59,58,745 from the payment made

on 23.12.2021 against the invoice dated 16.12.2021 raised by the

Petitioner for supply of power.

5. In view of the above clear provisions of the RFP, the Petitioner submits

that the purported demand of compensation to the tune of Rs 59,58,745 raised

by the Respondents is in breach of the terms and conditions of the RFP and bad
 14

in law. The Respondents have illegally and wrongfully deducted an amount of

Rs. 59,58,745 towards purported compensation, which is wrongful and

unjustified. The Respondents are wrongfully seeking to deny legitimate dues of

the Petitioner on the pretext of the alleged compensation which has been

imposed in violation of the terms of RFP. The Respondents are thus jointly and

severally liable to refund the said amount of Rs. 59,58,745 to the Petitioner

along with Late Payment Surcharge as per the provisions contained in Clause

23 of the RFP.

6. It is submitted that in light of the above, a dispute has arisen between the

parties, which is required to be adjudicated by this Hon’ble Commission.

Accordingly, the Petitioner is filing the present Petition seeking a declaration

that the purported action of the Respondents of levying compensation of an

amount of Rs. 59,58,745 on account of shortfall of scheduling by the Petitioner

for period from 01.11.2021 to 30.11.2021 is illegal and wrongful being

contrary to the terms of the RFP and consequently seeking a direction to the

Respondents to refund the said amount of Rs. 59,58,745 to the Petitioner along

with Late Payment Surcharge as per the provisions contained in Clause 23 of

the RFP.

7. The Respondent No. 1 is a licensee of this Hon’ble Commission. The

Petitioner has a composite scheme of generation and supply of power as

 15

described in Para 2 above. Further, the present matter also relates to inter-state

supply of power. Therefore, this Hon’ble Commission has the requisite

jurisdiction to entertain and decide the present Petition.

8. The Petitioner has paid the requisite fees as per the applicable
regulations.

PRAYER

In view of the aforementioned facts and circumstances of the present case it is,

therefore, most respectfully prayed that this Hon’ble Commission may

graciously be pleased to:

a. Pass an Order declaring that the purported action of the Respondents to

levy compensation of an amount of Rs. 59,58,745 (Rupees fifty nine

lacs fifty eight thousand seven hundred and forty five) for the period

from 01.11.2021 to 30.11.2021 is illegal and wrongful;

b. Pass an Order directing the Respondents, jointly and severally, to refund

the amount of Rs 59,58,745 to the Petitioner, along with Late Payment

Surcharge as per the provisions contained in Clause 23 of the RFP from

23.12.2021 till the date of payment;

 16

c. Pass such other and further order or orders as this Hon'ble Commission

may deem fit and proper under the facts and circumstances of the

present case and in the interest of justice.

PETITIONER

Through

Deepak Khurana
(Khaitan & Khaitan)
Advocates for the Petitioner
A-38, Kailash Colony,
New Delhi-110048
Place: New Delhi Tel: 011-49774545
Dated: 01.04.2022 E-mail: deepak.k@khaitanandkhaitan.com
 17

BEFORE THE HON’BLE CENTRAL ELECTRICITY REGULATORY

COMMISSION, AT NEW DELHI

PETITION NO. MP/2022

DB Power Ltd.
... PETITIONER

VERSUS

NTPC Vidyut Vyapaar Nigam Ltd. and Ors.

... RESPONDENT

AFFIDAVIT

I, Ajay Kumar Kaithwash, aged about 45 years, S/o Sh. R.R. Kaithwash,
working for gain with the Petitioner Company having its Corporate office at C-
31, Naman Corporate Link 3rd floor, G Block, Opposite Dena Bank, Bandra
Kurla Complex, Bandra (East), Mumbai – 400051, presently at New Delhi, do
hereby solemnly affirm and state as under:

1. I am the authorized representative of the Petitioner Company in the

above matter and am well conversant with the facts and circumstances
of the present case, and as such I am duly authorized on behalf of the
Petitioner Company to swear the present affidavit.

2. I say that the accompanying Petition has been drafted under my

instructions. I have read the contents of the accompanying Petition and I
have understood the contents of the same which are derived from the
records of the Petitioner Company maintained in the normal course of
business and believed by me to be true and correct.
 18

DEPONENT

VERIFICATION

I, deponent above named, do herby verify that the contents of the above
affidavit are true to the best of my knowledge and belief derived from the
records of the Petitioner Company, no part of it is false and nothing material
has been concealed therefrom.

Verified on this 01 day of April, 2022 at New Delhi.

DEPONENT