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Showing contexts for: mseb in Yash Agro Energy Limited vs Maharashtra Electricity Regulatory ... on 13 February, 2012Matching Fragments
8. It is evident, therefore, that the project was ready to be commissioned for commercial operation by mid- July, 2008. This agreement with RETL contains no reference to the appellant's earlier agreement with the respondent No.1. Alongside the clause 7.4. we may now cite a default clause as follows:-
Default provisions- Third party sale:
In case of any default by the MSEB, the Generator shall be entitled to sale of energy to the third party consumers. The MSEB shall facilitate such third party sale and enter into an Energy Wheeling Agreement with the Generator to enable such third party sale.
18. Secondly, in the agreement there is clause 10 dealing with events of default and termination but this clause bears no reference to clause 7.4. This clause 10 refers to failure or refusal by the Board to perform its obligations under the agreement but the obligation has to relate to performance of contract on the part of the Board.
19. Thirdly, there is clause 8.4 dealing with default provisions. This clause clearly specifies that in case of any default by the MSEB, the generator shall be entitled to sale of energy to third party consumers and the MSEB shall facilitate such third party sale and enter into an energy wheeling agreement with the generator to enable such third party sale. Evidently, the 'default' necessarily relates to non performance on the part of the MSEB of its part of the contract. This default cannot be co-related to clause 7.4.
20. Fourthly, there is no default clause attached to clause 7.4 which could be attributable to the respondent no.1 . This clause is unattached to any consequence that may ensue in case the MSEB declines not to perform its obligation of making payment so as to facilitate transfer of electrical energy to a third party through open access . As there was a default clause in 8.4 there is no such default clause dealing with penalty or compensation or damage in case the MSEB does not allow the appellant to effect third party sale.
21. Fifthly, amount of compensation is ordinarily determinable with reference to the differential price , i.e. the contract price payable by the MSEB and the price which the appellant would have fetched by selling power to RETL. The contract with the MSEB took place on 25.10.2004, while contract with the RETL took place on 13.6.2008 and the gap between the two periods is 3 years 7 months and 18 days. It was not to the knowledge of the MSEB, as it could not be so, that on 25.10.2004 if, the appellant would have entered into a similar contract with RETL then the appellant would have fetched a sum of Rs. 7/- per kWh . It is not the case of the appellant that on or about 25.10.2004 the possible tariff in case supply was made to RETL was near about Rs. 7/- per kWh. Matter of the fact is that the agreement with MSEB was signed on 25.10.2004 but the plant was ready to be commissioned in or about May,2008 although, in clause 2 of the EPA it was mentioned that the expected commercial operation date was 31st October,2006. Therefore, it cannot be said that on 25.10.2004 or on 31.10.2006 it was made clear by the appellant to the respondent no.1 that it would not honour the contract made with respondent no.1 and that in order to fetch more tariff in would enter into an agreement with a third party for sale of power through open access subject to payment of wheeling and banking charges.