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iv) Hence, the Appellant issued default notice on 25.3.2010 to the 2nd Respondent for the payment default under the PPA. Despite that, the default was not remedied. Hence, the Appellant terminated the PPA by issuing a termination notice dated 03.5.2010.

However, the above termination was disputed by the 2nd Respondent.

v) Hence, the Appellant approached the State Commission seeking for declaratory orders with regard to the termination of the PPA. Even during the pendency of the said petition before the State Commission, the Appellant supplied electricity to the 2nd Respondent. While the matter was taken up for final disposal, the 2nd Respondent contended that a valid PPA was existing and as such, it was binding on the parties.

vi) The State Commission, ultimately, after hearing both the parties, passed order dated 13.1.2011 allowing the petition filed by the Appellant giving a declaration that the PPA was validly terminated by the Appellant by the termination letter dated 03.5.2010.

vii) Even, thereafter, the Appellant supplied the power to the 2nd Respondent as the Appellant was not granted "No Objection Certificate" by the State Load Dispatch Centre, (3rd Respondent) for the sale of power under Inter State Open Access. However, later the 3rd Respondent granted the NOC for Open Access with effect from 12.3.2011. From then onwards, the Appellant has been supplying power through Open Access to third party.

7. Let us consider these issues in detail. According to the Appellant, since PPA was terminated by the Appellant with effect from 03.5.2010 which has been subsequently confirmed by the State Commission, the Appellant would be entitled to be paid not at the rate of PPA but at the rate of Rs.5.50 per unit as determined by the State Government through its order for procurement of power under Section 11 of the Act.

8. This contention can not be accepted in view of the fact that the Appellant is not entitled to claim the electricity charges at the rate other than what is fixed in the PPA as the very validity of the termination of the PPA was pending before the State Commission at the instance of the Appellant during the said period. The Appellant can not seek to claim any other rate other than the PPA rate. Though the Appellant terminated the PPA on 3.5.2010, the said termination was upheld by the State Commission only by the order dated 13.01.2011. Therefore, that date alone has to be governed for fixing the rate for the said period.

"12. In our considered view, the claim of the Petitioner for payment of the charges from the date of termination, till the date of Commission upholding the termination, viz., 13.1.2011, has to be governed by the rates fixed in the PPA, though it was terminated on 3.5.2010, as the said rate was the rate agreed between the parties in the PPA and was also fixed considering the cost of generation. The Petitioner has not produced any material in support of its claim for higher rate, except stating that the rate determined by this Commission in its order under Section 11 determines the rate at Rs.5.50 per unit, duly considering all the factors. According to us, the rates determined in the cases covered by Section 11 Order of the Government were in different circumstances. Under the Government Order, Generators had no option except to sell the power to the State Grid only and to generate to the maximum capacity. Whereas, during the period in which Section 11 Order was not there, the Petitioner had the option of either to generate or not to generate electricity, or to generate fully or partly. Further, the Petitioner itself was not sure of the validity of its action of termination of the PPA and therefore sought for a declaration from the Commission on the validity of its action. It cannot now say that the termination was valid with effect from 3.5.2010 and therefore the PPA rates cannot be applied to the supply made. If termination date has to be taken for payment, the Petitioner can not claim any amount, as there was no right with the Petitioner to pump electricity and demand charges. In our view, till the declaratory Order was passed by this Commission on the validity of termination of the PPA, the Petitioner has continued to supply electricity to the Respondents and its, therefore, to be paid of the rate fixed in the PPA. Considering the facts placed before us, we are of the view that the Petitioner has to be paid at the rate of PPA till the termination of the PPA was upheld"