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8.2 In terms of the PSA, PTC had to obtain the Long Term Open Access for adequate transmission capacity from CTU and pay the transmission charges on behalf of HPPC; which it applied for before the CTU on 20.03.2007 for the full quantum of 300 MW. 8.3 PTC entered into a Bulk Power Transmission Agreement ("BPTA") with the CTU on 27.07.2009 for evacuation of power from Unit 2 of the KPL to HPPC. The LTOA was to be operational upon completion of certain transmission elements and till then transfer of power was to take place under Short Term Open Access. 8.4 On 31.07.2014, CTU informed PTC that the transmission system mentioned in the letter dated 16.06.2008 had already been commissioned by it except the dedicated line which was to be built by the KPL. On 06.09.2014, KPL confirmed that the dedicated line _______________________________________________________________________________ from Pathadi TPS was ready and the Pathadi - Bilaspur 400 KV D/C lines had been connected to the PGCIL, Bilaspur Sub- Station. 8.5 That subsequently, KPL informed PTC that it is impossible to perform the PPA at a capped tariff of Rs. 2.32 per KWh. Consequently, PTC filed a Petition before HERC to revise the Tariff under PSA. HPPC filed a separate petition before HERC seeking a direction qua KPL and PTC to comply with their contractual obligations under the PPA and restraining KPL from Selling the contracted capacity to any third party including and not limited to the State of Chhattisgarh. During the pendency of the above petitions KPL unilaterally terminated the PPA vide its letter dated 11.01.2011. 8.6 On 12.01.2011, KPL entered into a PPA with CSPDCL for supply of 35% share of power to Government of Chhattisgarh ("GOCG") in view of then obligations under the Implementation Agreement. 8.7 HERC vide its order dated 2.2.2011 dismissed the petition filed by PTC and allowed the petition filed by HPPC and proceeded to exercise jurisdiction in respect of such PPA to restrain KPL from revising its price/tariff for sale of power and further restrained KPL from selling the contracted power to a third party. Aggrieved by order of the HERC, KPL filed an appeal being Appeal No. 15 of 2011 and CSPDCL also filed an appeal being Appeal No. 52 of 2011. This Tribunal permitted KPL to supply 35% power to CSPDCL _______________________________________________________________________________ vide an interim order dated 23.03.2011. Meanwhile, considering the termination of the PPA as illegal, PTC invoked the arbitration clause in the PPA challenging the termination of the PPA by KPL. Subsequently, this Tribunal vide a common judgment dated 04.11.2011 while holding that HERC had the jurisdiction, dismissed Appeal No. 15 of 2011 and allowed Appeal No. 52 of 2011 of CSPDCL and remanded the matter to HERC to grant an opportunity to CSPDCL of being heard.

9.4 CERC also failed to appreciate that KPL voluntarily undertook to open LC for full quantum of LTOA i.e. 300 MW during the hearing before the Hon'ble Supreme Court on 18.09.2015 as it was desirous of supplying power despite having terminated the PPA, for which it required coal linkage and on that basis the Hon'ble Supreme Court passed the aforesaid interim order. Consequently, only the Hon'ble Supreme Court has the jurisdiction to amend/ modify the said order and the Petition filed by KPL before CERC was not maintainable. 9.5 Moreover, CERC also failed to appreciate that CTU itself made a statement before the Hon'ble Supreme Court that PTC would be required to pay the actual charges to avail the benefits of infrastructure owned by CTU and hence, transmission charges to the extent of 95% of power being supplied by KPL to HPPC only needs to be paid. CERC could not have passed an order directing _______________________________________________________________________________ PTC to pay the transmission charges for more than power being transmitted i.e., 95% of 300 MW as the balance 5% is being supplied by KPL to State of Chhattisgarh.

15. Thereafter, KPL sought revision to the PPA tariff citing infeasibility of power supply at the existing tariff of Rs. 2.32/unit which culminated into cross litigation between the parties to the PPA & PSA before HERC. During pendency of the said petitions before HERC, KPL terminated the PPA with PTC on 11.01.2011. Pertinently, on 12.01.2011, KPL entered into a PPA with Respondent No. 5 CSPDCL for supply of 35% power to Govt. of Chattisgarh under the Implementation Agreement. Subsequently, on 02.02.2011 HERC while allowing HPPC's petition rejected PTC's petition to remove the tariff cap and restrained PTC and KPL from selling power under HPPC's PPA capacity to third parties. The said dispute travelled to this Tribunal at the behest of both KPL (Appeal No. 15 of 2011) and CSPDCL (Appeal No. 52 of 2011), wherein as an interim measure KPL was permitted to supply 35% power to CSPDCL. Finally on 04.11.2011, this Tribunal rejected KPL's appeal upholding HERC's jurisdiction and remanded the case to HERC for fresh consideration granting due opportunity to CSPDCL of being heard.

25. What PTC seeks to contend is that once the PPA stood terminated, any directions by the Supreme Court in respect of resumption of power supply as well as the corresponding fuel supply are not in terms of the said contractual agreements such as PPA / FSA but de hors these agreements. Therefore, in absence of the existence or continuance of these agreements as well as the fact that a superior court was seized of the matter, CERC could not have exercised its jurisdiction under section 79 of the Act to entertain the petition filed by KPL.