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2016 (8) TMI 1495 - SUPREME COURTInterpretation of statute - Failure to declare availability of power in the proportion of 300:215 MW for the period from 14th September, 2002 onwards - Whether the Tribunal has correctly interpreted the terms of Power Purchase Agreement dated 30th May, 1996 (PPA) and is justified in reversing the finding of the Commission based on interpretation of the said PPA and other documents on record.? True interpretation of PPA to determine whether there is any obligation to declare availability of power in the ratio of 300:215 - HELD THAT:- The EPL was under obligation as per Schedule VI to declare weekly Schedule of the capacity available and the dispatch instructions were to be issued on the basis of the said declaration. It could not thus be said that the EPL had no obligation to declare the capacity and the obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by the EPL. Contrary view of the Tribunal is clearly erroneous. In paras 45 and 46 and elsewhere in its judgment, the Tribunal erred in holding that there was no obligation to declare available capacity on proportionate basis. The finding of the Commission in paras 9.5 to 9.12 of its order quoted above is the correct interpretation of the Agreement. Effect of letters dated 17th February, 2000, 4th March, 2000 and 4th October, 2001 on the rights of the parties - HELD THAT:- The letters of the Respondent acknowledged its liability to allocate the generated power to the Appellant and to the ESL in the ratio of 58: 42. The Tribunal in para 54 quoted above, held that the said letters could not be relied upon in support of the claim that the Appellant was entitled to be allocated generated power in proportion of 58: 42. This finding is clearly erroneous and is without any basis and is liable to be set aside. The finding of the Commission is based on record. Interpretation of Schedule VI to determine whether the obligation to issue dispatch instructions arose before declaration of availability - HELD THAT:- In interpreting Schedule VI, the Commission held that the EPL was liable to declare weekly capacity available and on that basis dispatch instructions were required to be issued (para 9.6). The contrary view taken by the Tribunal in para 45 and elsewhere is clearly contrary to the agreement between the parties as reflected in Schedule VI. The order of the Tribunal is erroneous. The said order has given rise to the substantial question of law which has been discussed above, i.e., the interpretation of the Agreement between the parties and the obligation of the Respondent to declare availability of generated power in the ratio of 58: 42 and consequence of default therein. The Tribunal erroneously held that there was no pleading for making the claim. Thus, the Tribunal has committed error of law as well as of record in recording its finding as demonstrated above. It may also be noted that the Commission has left actual working out of the loss to be worked out separately and on that basis the Appellant has already filed its claim which was pending consideration before the Commission. The said proceeding can now be revived in the light of our finding. Appeal allowed.
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