TMI Blog2021 (10) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (5) TMI 649 - SUPREME COURT ] cited by Mr. Singh, the word substantial question of law means not only a substantial question of law of general importance, but also any substantial question of law arising in a case between the parties on which the decision in the lis depends. A question of law which arises incidentally or collaterally and has no bearing on the final outcome, will not be a substantial question of law. Whether the question raised is a question of law and if so, whether the question is a substantial question of law is also not determined by the enormity of the stakes involved in the case - In Nazir Mohamed v. J. Kamala and Ors. [ 2020 (8) TMI 866 - SUPREME COURT ], also cited by Mr. Singh, this Court held that, to be substantial , a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. On a conjoint reading of Section 125 of the Electricity Act with Section 100 of the Code of Civil Procedure, it is absolutely clear that an appeal to this Court lies on a substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by SBI for short term loans - The provision in the Power Purchase Agreement, whereby the parties are to mutually agree on a rate of interest, in case there is no SBI Prime Lending Rate, in itself excludes the applicability of the general provision for Change in Law contained in Article 13 of the Power Purchase Agreement to Late Payment Surcharge. The object of LPS is to enforce and/or encourage timely payment of charges by the procurer, i.e. the Appellant. In other words, LPS dissuades the procurer from delaying payment of charges. The rate of LPS has no bearing or impact on tariff. Changes in the basis of the rates of LPS do not affect the rate at which power was agreed to be sold and purchased under the Power Purchase Agreements. The principle of restitution under the Change in Law provisions of the Power Purchase Agreements are attracted in respect of tariff - LPS cannot be equated with carrying cost or actual cost incurred for the supply of power. The Appellant has a contractual obligation to make timely payment of the invoices raised by the Power Generating Companies, subject, of course, to scrutiny and verification of the same. Mr. Mukul Rohatgi has a point that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their lenders. It is now well settled by various decisions of this Court that an Electricity Regulatory Commission such as MERC constituted under the Electricity Act, 2003 has all the trappings of a Court. The MERC is a substitute for a Civil Court in respect of all disputes between licensees and Power Generating Companies - MERC acted within the scope of its power of regulatory supervision in directing the Appellant to make payment of LPS within the time stipulated in the order of MERC. The APTEL rightly upheld the direction. In any case, such a direction cannot be interfered with in exercise of powers Under Section 125 of the Electricity Act which corresponds to the power of Second Appeal Under Section 100 of the Code of Civil Procedure, since the sine qua non for entertaining an appeal is the existence of a substantial question of law. The Appellant filed an application to bring on record additional facts and documents in the form of queries under the Right to Information Act, 2005 made by one Alka Mehta to the State Bank of India and the responses thereto in an attempt to show that PLR would not apply to short term loans advanced by SBI after transition to the Base Rate/M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law, within the meaning of the expression 'Change in Law' as defined in the respective Power Purchase Agreements between the Appellant and the Respondent Nos. 2, 3, 4 and 5, hereinafter collectively referred to as the Power Generating Companies , so as to alter the rate of Late Payment Surcharge(LPS) payable by the Appellant to the Power Generating Companies under the respective Power Purchase Agreements. 2. The Appellant, incorporated under the Companies Act, 1956, pursuant to the decision of the Government of Maharashtra to reorganize erstwhile Maharashtra State Electricity Board, is a Distribution Licensee under the provisions of the Electricity Act, 2003, with license to supply electricity all over the State of Maharashtra, except some parts of the city of Mumbai. The Appellant is a bulk purchaser of electricity from generators of electricity. 3. The Appellant had, from time to time, issued Tender Notices, inviting bids for bulk supply of electricity to the Appellant, pursuant to which, the Power Generating Companies submitted their bids. 4. The Appellant has executed Power Purchase Agreements with the Power Generating Companies, arrayed as Respondent Nos. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer and project are located and includes the CERC and MERC. Late Payment Surcharge-shall have the meaning ascribed there to in Article 11.3.4 Law-means, in relation to this Agreement, all laws including Electricity Laws in force in India and any stature, ordinance, Regulation, notification or code, rule, or any interpretation of any of them by an Indian Government Instrumentality and having force of law and shall further include all applicable rules, Regulations, orders, notifications by an Indian Governmental Instrumentality pursuant to or under any of them and shall include all rules, Regulations, decisions and orders of the CERC and the MERC. SBAR-means the prime lending Rate per annum applicable for loans with one (1) year maturity as fixed from time to time by the State Bank of India. In the absence of such rate, any other arrangement that substitutes such prime lending rate as mutually agreed to by the parties. Article 11: Billing and Payment . . . 11.3.4 In the event of delay in payment of a monthly bill by the procurer beyond its due date month billing, a Late Payment Surcharge shall be payable by the procurer to the seller at the rate of two (2) pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this Article 13.3.2 if it is beneficially affected by a Change in Law. Without prejudice to the factor of materiality or other provisions contained in this Agreement, the obligation to inform the procurer contained herein shall be material. Provided that in case the seller has not provided such notice, the Procurer shall have the right to issue such notice to the seller. 13.3.3 Any notice served pursuant to this Article 13.3.2 shall provide, amongst other things, precise details of: a) The Change in Law; and b) The effects on the Seller of the matters referred to in Article 13.2 13.4 Tariff adjustment payment on account of Change in Law 13.4.1 subject to Article 13.2, the adjustment in monthly tariff payment shall be effective from: (i) the date of adoption, promulgation, amendment, re-enactment, repeal of the Law or Change in Law, or (ii) the date of order/judgment of the competent court or tribunal or Indian Governmental Instrumentality, if the Change in Law is on account of a change in interpretation of law. 6. The Stage 2 Power Purchase Agreements, as stated hereinbefore, contain terms and conditions almost identical to those of the first set of agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following events after the date, which is seven (7) days prior, to the Bid Deadline resulting into any additional recurring/non-recurring expenditure by the Seller or any income to the Seller: * the enactment, coming into effect, adoption, promulgation, amendment, modification or repeal (without re-enactment or consolidation) in India, of any Law, including Rules and Regulations framed pursuant to such Law; * a change in interpretation or application of any law by any Indian Governmental Instrumentality having the legal power to interpret or apply such Law, or any Competent Court of Law; * the imposition of requirement for obtaining any Consents, Clearances and Permits which was not required earlier; * a change in the terms of conditions prescribed for obtaining any Consents, Clearances and Permits or the inclusion of any new terms or conditions for obtaining such Consents, Clearances and Permits; except due to any default of the Seller; * any change in tax or introduction of any tax made applicable for supply of power by the Seller as per the terms of this Agreement but shall not include (i) any change in any withholding tax on income or dividends distributed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of order/judgment of the Competent Court or tribunal or Indian Governmental Instrumentality, if the Change in Law is on account of a change in interpretation of Law. 10.5.2 The payment for Change in Law shall be through Supplementary Bill as mentioned in Article 8.8. However, in case any change in Tariff by reason of Change in Law, as determined in accordance with this Agreement, the Monthly Invoice to be raised by the Seller after such change in Tariff shall appropriately reflect the changed tariff. 7. With the object of bringing transparency in the lending rates, that is, the rates of interest charged by banks on loans and advances, the Reserve Bank of India had introduced the Benchmark Prime Lending Rate (BPLR) system in 2003. 8. By a notification dated 1st July 2010, the Reserve Bank of India introduced the Base Rate System, replacing the BPLR system with immediate effect. The relevant extracts of the notification dated 01.07.2010 are set out hereinbelow: 2.2.1 The Base Rate system, as detailed below and in Annex 1 will replace the BPLR system with effect from July 1, 2010. For loans sanctioned up to June 30, 2010, BPLR will be applicable, as given in Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Prime Lending Rate fixed as per SBAR, that is, the State Bank Advance Rate. 12. The expression SBAR (State Bank Advance Rate) refers to the Prime Lending Rate notified by the State Bank of India (hereinafter referred to as 'SBI') from time to time, that is applicable per annum for loans with one year maturity, advanced by SBI. It is only in the absence of SBAR that the rate of LPS may be substituted by some other arrangement, by mutual agreement. 13. On 23.09.2016, the Appellant issued notice of 'Change in Law' to independent power producers including the Power Generating Companies impleaded as Respondent Nos. 2 to 5. 14. On 02.12.2016, the Appellant filed Case No. 24 of 2017 before the MERC claiming that the introduction of the Base Rate and MCLR qualifies as Change in Law. Case No. 24 of 2017 has been dismissed by a judgment and order dated 16.11.2017, which has been affirmed by the APTEL in Appeal No. 77 of 2018, by the judgment and order impugned in this Appeal Under Section 125 of the Electricity Act, 2003. 15. Mr. Vikas Singh appearing on behalf of the Appellant submitted that this appeal raises the following substantial questions of law: (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial questions of law. The word substantial prefixed to question of law does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. Substantial questions of law means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 Code of Civil Procedure, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided under the Power Purchase Agreements expressly refers to the interest rate that is applicable for loans with one year maturity. The interest rate is therefore, to be renewed on a yearly basis, and further, only the interest rates for short term loans would be applicable to LPS under the Power Purchase Agreements. Upon renewal of the loan, the Base Rate system and/or MCLR system, as the case may be, is to be applicable, for the relevant period for which LPS is to be calculated. 21. Mr. Singh submitted that no PLR rates are being notified by SBI for short term loans. The PLR rates issued by SBI, after notification of the Base Rate system and the MCLR rates by the RBI, are only for long term loans that have not come up for renewal, and for those loans which are running to maturity. Even in case of loans there is option of switching to the Base Rate/MCLR system. 22. Mr. Singh submitted that in Jaipur Vidyut Vitaran Nigam Limited and Ors. v. Adani Power Rajasthan Limited and Anr., this Court has capped the interest rate on LPS at 9% per annum, inclusive of the 2% in excess of the applicable interest rate. Moreover, this Court has directed that the interest should be comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum. 74. We accordingly direct that the rate of interest/late payment surcharge would be at SBAR, not exceeding 9 per cent per annum, to be compounded annually, and the 2 per cent above the SBAR (as provided in Article 8.3.5 of PPA) would not be charged in the present case. 23. Mr. Singh argued that the provisions of the Power Purchase Agreement considered in Jaipur Vidyut Vitaran Nigam Ltd. (supra) with regard to LPS are in pari materia with the corresponding provisions in the Power Purchase Agreements under consideration in this case. Thus, the aforesaid judgment squarely covers the present case. 24. Mr. Singh argued that, in terms of Article 1 of the Power Purchase Agreements, law means all laws including Electricity Laws in force in India and any statute, ordinance, Regulation, notification or code, rule, or any interpretation of any of them by an Indian Governmental Instrumentality and having force of law and shall further include all applicable rules, Regulations, orders, notifications by an Indian Governmental Instrumentality pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, APTEL has by its impugned judgment and order wrongly held that LPS neither has any bearing on the income of the Respondent Power Generating Companies nor is part of the tariff. APTEL has erroneously held that change in methodology in computation of the rate of interest is not change in law. 30. Mr. Singh further argued that the LPS, as a concept, is compensatory in nature for delayed payment, if any. The Order dated 16.11.2017 passed by the MERC in Case No. 24 of 2017 also holds that LPS is essentially compensatory in character, in terms of the effect on the seller on account of delay by the procurer in making payments. 31. Mr. Singh further argued that LPS is paid to compensate a power generator for delay in making payments of invoices, because the power generator would have to arrange additional working capital loan to the extent of the amount of outstanding delayed invoice(s). Thus, to offset the loss that may have been caused on account of additional interest on such additional working capital loan, the Power Purchase Agreements contain a provision for LPS. The fact that LPS is to be compounded monthly is a further benefit to the Power Generating Companies. Thus, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. 43.7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application. 44. The Division Bench has gone wrong in principle. As has been pointed out above, there has been no breach of contract by the Appellant. Further, we cannot accept the view of the Division Bench that the fact that DDA made a profit from re-auction is irrelevant, as that would fly in the face of the most basic principle on the award of damages--namely, that compensation can only be given for damage or loss suffered. If damage or loss is not suffered, the law does not provide for a windfall. (emphasis supplied) 34. To impress upon this Court that the Respondents were making a huge gain from LPS as claimed by them, Mr. Singh emphasized the difference between LPS rates as claimed by the Respondents and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 191.54 138.09 JSW 185.26 0.96 186.22 132.07 92.48 GMR 41.01 0.47 41.48 36.61 28.88 Total 1469.69 19.52 1489.21 1124.92 797.06 36. Mr. Singh emphatically submitted that the Respondent Power Generating Companies have been availing their working capital loans at interest computed in accordance with the Reserve Bank of India Notifications, but are claiming LPS applying archaic and discontinued PLR methodology. There are, however, no materials on record to substantiate the contention that the Respondent Power Companies are availing working capital loans at interest computed in accordance with the Notification dated 3rd March, 2016 of the Reserve Bank of India. 37. Mr. Singh submitted that the Respondent No. 2 sought for bill discounting from the Appellant during the financial year 2020-2021. Such bill discounting was done at the rate of 7% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17670 15237 41. Mr. Singh argued that a Revenue gap of ₹ 2433 Crores has not been approved by the MERC for the Financial Years 2015-16, 2016-17 and 2017-18. Furthermore, the Appellant has projected/claimed Revenue Gap of ₹ 34,646 Crores upto the Financial Year 2019-20 (including past period revenue gap, from 2015-16 to FY 2017-18). However, the MERC has determined the total Revenue Gap at ₹ 20,651 Crores only vide its Order dated 12.09.2018 passed in a Midterm Review Petition being Case No. 195 of 2017 out of which ₹ 8,269 Crores was allowed to be recovered in tariff. As per the order of the MERC a Regulatory Asset has been created, in respect of the balance amount ₹ 12,382 Crores. There is, however, no timeline or stipulations provided in the order of the MERC for recovery of the aforesaid amount. This has led to severe financial problems for Appellant. 42. Mr. Singh submitted that the MERC has disallowed various components of Annual Revenue Requirement sought by the Appellant, such as Agriculture (AG) Sales. The MERC has suo motu disallowed sale of agriculture units for the Financial Years 2014-15 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... YT) Order instead of considering the same at the time of true up of the Appellant as specified in MYT Regulations, which resulted into loss of revenue to the Appellant. 48. Mr. Singh further argued that the data submitted and approved in determining Multi Year tariff (MYT) and/or Annual Revenue Requirement (ARR) is based on estimation/projections/norms, as against the data which is submitted at the time of True-up Petition, which is based on audited accounts and figures which are actually frozen, as per Regulation 11 of the Maharashtra Electricity Regulatory Commission (Multi Year Tariff) Regulations, 2015, referred to hereinafter as the 'MYT Regulations'. 49. By way of example, Mr. Singh pointed out that, if a particular expense is approved at a certain amount but during true-up exercise, the actual expenditure is higher than that approved by the MYT Order, the Appellant ends up borrowing additional working capital for which the interest is not approved by the MERC, if it crosses the normative working capital. As per the MYT Regulations, the difference would be subject to treatment of sharing of gains or loss as envisaged under Regulation 11. In other words, only l/3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectricity bills of June-20 and July-20 at one go, were allowed to pay bills in three equal instalments, without interest or delayed payment charges. 54. Mr. Singh further submitted that on 26.03.2020 the MERC issued the following 'Practice Direction-Measures to Minimize Public Interface in View of the Coronavirus Epidemic'. (a) Distribution Licensees were to ensure continuity of supply. Complaints related to restoration of supply as also safety related complaints were to continue to be attended by the Distribution Licensee. (b) The Distribution Licensees might suspend other non-essential services which required visit to premises of consumers or meeting consumers in person i.e., Meter reading, Billing, Offline Bill Collection at Bill Payment Centres, release of new connections etc. (c) Automated Meter Reading facility whenever available was to be used for meter reading. (d) In the absence of Meter reading, the Consumers were to be intimated through digital channels such as email, sms, mobile app about their estimated bill, computed on average basis, as per Supply Code Regulations. (e) For bill payment, Distribution Licensee was required to facilitate and up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer Generators. In terms of Article 13.3.2 of the Power Purchase Agreements, the seller is obligated to serve the Change in Law notice to the procurer, if it is beneficially affected by a Change in Law. The Respondent Nos. 2 to 5 however, failed to issue any such notice, and are now attempting to take advantage of their own wrong, in contravention of settled principles of law to this effect. Moreover, on account of the failure of the Respondent Power Generating Companies to issue Change in Law notices under the Power Purchase Agreements, the Appellant herein was constrained to issue the Change in Law notices to the Respondent Generating Companies. 58. In conclusion, Mr. Singh submitted the argument that APTEL erred in law in issuing directions on the Appellant for payment of LPS as claimed. Such directions to make payment to the Respondent Power Generators could not have been made, more so in the Appellant's appeal. No monetary relief could be granted in the Appellant's appeal. The Respondents should have been remitted to MERC for execution and quantification of the Change in Law claims. 59. The only issue in this appeal is whether the change in interest rate system b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Respondent No. 5, drew the attention of this Court to Clause 10 of the Notification dated 03.03.2016 of the Reserve Bank of India, introducing the MCLR system with effect from 01.04.2016, in place of the Base Rate System, in terms whereof existing loans based on the PLR system were to continue under the PLR System till maturity. She submitted that MCLR System was to apply to loans sanctioned after 01.04.2016, and not loans already in existence as on that date. 66. Ms. Divya Anand submitted that the State Bank of India has been notifying all three rates, that is, PLR, Base Rate and MCLR as demonstrated in the Table of interest rates of the State Bank of India during the year 2020 which is reproduced below: SBI notified Rate 10.12.2020 10.09.2020 10.06.2020 10.03.2020 BPLR 12.05 12.15 12.15 12.90 Base Rate 7.30 7.40 7.40 8.15 MCLR 7.30 7.30 7.30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, since the Circulars dated 09.04.2010 of the Reserve Bank of India, introducing Base Rate had been in existence since 2010, the Change in Law notice, issued only on 23.09.2016, had rightly been held to be time barred. 71. Mr. Rohatgi submitted that this Appeal does not meet the requirement of Section 125 of the Electricity Act, 2003, which only permits grounds as specified Under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC ). Section 100 of the Code of Civil Procedure mandates that the first Appellate Court is the final Court of facts. Section 100 of the Code of Civil Procedure does not permit interference with findings of fact of the first Appellate Court. 72. Mr. Rohatgi submitted that contrary to the grounds permitted in Section 100 of the Code of Civil Procedure, in this Appeal Under Section 125 of the Electricity Act, 2003, the Appellant has raised pure questions of fact, which have been concurrently decided in favour of the Power Generating Companies. This Appeal is, therefore not maintainable. In support of the aforesaid argument, Mr. Rohatgi cited DSR Steel (P). Ltd. v. State of Rajasthan and Ors. (2012) 6 SCC 782 (para 14), T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 6 years after RBI introduced the Base Rate system in place of the BPLR system. Para 15 @ page 109-111 Para 23 @ page 16 76. Mr. Rohatgi argued that the Appellant is seeking to raise the above issues which have been concurrently decided, once again. No substantial question of law has arisen in this Appeal filed Under Section 125 of the Electricity Act, 2003 warranting interference by this Court. Mr. Rohatgi cited Ramanuja Naidu v. V. Kanniah Naidu and Anr. (1996) 3 SCC 392 (para 11) and Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166 (para 11) in support of his aforesaid argument. 77. Mr. Rohatgi argued that since SBAR continues to be in operation, it cannot be said that there is any change in law. The Respondent No. 2 and the Appellant have entered into four Power Purchase Agreements, the first dated 14.08.2008 for supply of 1320 MW, the second dated 31.03.2010 for supply of 1200 MW, the third dated 09.08.2010 for supply of 125 MW and the fourth dated 16.02.2013 for supply of 440 MW of electricity, pursuant to the competitive bidding process initiated by the Appellant. Article 8.3.5 of the Power Purchase Agreements dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the event in question must be one that is covered by Clause 10.1.1 of the Stage 2 Power Purchase Agreements corresponding to Clause 13.1.1. of the Stage 1 Power Purchase Agreements, that is, it must be a new enactment, or amendment of existing legislation, or new interpretation by a competent court, the event must have occurred after the Cut-off Date, which is in this case, concededly 31.07.2009, that is, the date seven days prior to the Bid Deadline date, which is 07.08.2009 and such event must have resulted in additional recurring or non-recurring expenditure or income for the Seller. The first and third of these conditions are not fulfilled by the Appellant since the LPS Rate under the Power Purchase Agreements is not linked to Reserve Bank of India circulars or guidelines and the RBI notifications referred to are not shown to have resulted in any additional income or expenditure for the Power Generating Companies. The introduction of Base Rate in 2010 and MCLR in 2016 by the Reserve Bank of India by its Notifications/Circulars does not, therefore, amount to Change in Law. Therefore, the contention of the Appellant that Reserve Bank of India Directive of 2016 amounts to Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t discipline and is also entirely avoidable. 84. Mr. Rohatgi pointed out that the APTEL has, by its impugned judgment and order (para 21) categorically rejected the Appellant's contention of there being unjust enrichment of the Respondent Power Generating Companies, on account of LPS being calculated at SBAR Rate. The APTEL has held: (i) In order to be termed as unjust enrichment, benefit gained by a party must be such as to have been retained without any legal basis; (ii) The primary purpose of LPS being to compensate the Power Generators for the time value of money lost on account of delay in payment by the Appellant, it cannot be said that recovery of LPS results in the generators being unjustly enriched; (iii) The payment of LPS, with interest calculated on the Prime Lending Rate, has authorisation in the express terms of the Power Purchase Agreements; (iv) The claim of LPS does not represent any benefit accruing to the Respondent Power Generating Companies, but is compensatory in nature. Moreover, LPS is not economic restitution but is a disincentive; (v) It is wrong to equate LPS with carrying cost or actual cost incurred because any interest paid for fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Power Purchase Agreement was approved by the MERC. 90. Mr. Singhvi argued that, it was not in dispute that payment against monthly bill for electricity charges raised by the Respondent No. 3, was agreed to be made by the Appellant within 30 days. It is also not disputed that in the event of delay in payment of a monthly, beyond its due date, that is, 30 days, the Appellant would be bound to pay a Late Payment Surcharge (LPS). In this context, Mr. Singhvi referred to Clause 11.3.4 of the Power Purchase Agreement which has already been reproduced hereinbefore. 91. Mr. Singhvi submitted that in this case too the rate of LPS was 2% in excess of SBAR. Mr. Singhvi referred to the definition of SBAR in the concerned Power Purchase Agreement, defining SBAR to mean the prime lending rate per annum applicable for loans with one (1) year maturity as fixed from time to time by the State Bank of India. Mr. Singhvi pointed out that it was only in the absence of any prime lending rate that the rate of LPS could be fixed at such rate as might be mutually agreed to by the parties. 92. Mr. Singhvi questioned the legality of the argument of the Appellant that the purpose of publicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of its absence. This dispensation is contained in the definition of SBAR itself. This special provision in the agreement applicable to the specific case of absence of SBI PLR, excludes the applicability of the general 'Change in Law' provision contained in Article 13 of the PPA. In the context of his arguments Mr. Singhvi cited Adani Power (Mundra) Ltd. v. Gujarat Electricity Regulatory Commission and Ors. (2019) 19 SCC 9 the relevant paragraph whereof is reproduced herein below: 38. In the present case, the perusal of various Articles would reveal that the provisions Under Article 14 are general in nature. The provision Under Article 3.4.2 is specific, only to be invoked in the case of non-compliance with any of the conditions as provided Under Article 3.1.2. As such, the special provision made in Article 3.4.2 will exclude the applicability of general provisions contained in Article 14 of the contract. 96. Mr. Singhvi argued that the general provisions of the Change in Law Clause have been consciously kept out by the parties, in relation to a situation arising out of absence of the SBI PLR and the consequent calculation of LPS. Therefore, the Hon'ble APTEL c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es what was lost in terms of real value of money due to delay in payment. 100. Mr. Singhvi argued that the Appellant has till 24.06.2016, signed reconciliation statements with the Respondent No. 3 in which the Appellant calculated the LPS on the basis of the PLR published by the State Bank of India and not the Base Rate or the MCLR, as is now being claimed by the Appellant. It is, therefore, clear that in this case, there has never been any dispute whatsoever with regard to the principal liability of the Appellant towards energy charges, and no dispute was raised regarding LPS for over 5 years. 101. Mr. Rohatgi, Mr. Singhvi, Mr. Mukherjee and Ms. Anand all submitted that the contentions of the Appellant are liable to be rejected outright, since LPS provision in the Power Purchase Agreements, is not linked to the rate at which the affected party is able to get loans from Banks or Financial Institutions. The Appellant having agreed to pay LPS at SBI PLR, till such time it exists, cannot now seek any other rate such as MCLR or actual interest rates at which the Respondent Power Generating Companies obtain financial accommodation. On behalf of the Respondent No. 3 Mr. Singhvi sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Anr. 2015(4) SCC 136 and Central Bank of India v. Ravindra and Ors. 2002 (1) SCC 367. However, this Court found that the dispute raised by the Distribution Licensee with regard to the definition of gross revenue, in that case, was not bona fide and had only been raised to delay payment in accordance with the Power Purchase Agreement. This Court, accordingly, held that none of the above decisions would come to the aid of the Distribution Licensee and concluded that since there is a contractual stipulation, the interest can be levied and compounded. Mr. Singhvi referred to the part of said judgment reproduced hereinbelow: 192.... The ratio of the case, it is not attracted for the reason that in the instant matter, it is the contractual rate of interest and penalty agreed to which cannot be said to be arduous in any manner. The rate of interest has been agreed and particularly since it is a revenue sharing regime, and the licensees have acted in conscious disregards of their obligation. Thus on the anvil of the decision above also, they are liable to pay the dues with interest and penalty...... ...... There is no such discretion available when the parties have agreed in def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulations relied upon by the Appellant were the Tariff Regulations, framed by the MERC for the purpose of determination of tariff for generating stations Under Section 62 of the Act, which have no application in this case, where the Power Purchase Agreements have been executed pursuant to a bid process Under Section 63 of the Electricity Act. Mr. Singhvi submitted that the Appellant as purchaser was in no way concerned with how the Respondent manages the shortfall in working capital, whether from internal accruals, additional equity infusion, foreign loans, domestic loans etc. in a bid out tariff, adopted by the MERC Under Section 63 of the Electricity Act. 109. Mr. Singhvi submitted that the second appeal filed by the Appellant should be dismissed with directions to the Appellant to make payment of the balance reconciled outstanding interest liability of ₹ 48.55 crore (i.e. 47.79 crore + ₹ 0.76 crore as per the Appellant's affidavit dated 29.06.2021 I.A. No. 73474/2021. 110. Mr. Vishrov Mukherjee, appearing on behalf of the Respondent No. 4, adopted the arguments advanced by Mr. Rohatgi and Mr. Singhvi, and also argued that the Appellant's contention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars/Guidelines. The applicable interest rate for payment of LPS is contractually defined, and linked to PLR rates notified by State Bank of India. This is independent of any RBI Notification/Circular/Guideline. Citing Union of India v. Association of Unified Telecom Service Providers of India and Ors. 2020 (3) SCC 525, Mr. Mukherjee argued that, once a term has been defined contractually, parties cannot vary such terms. 115. Mr. Mukherjee reiterated the submission of Mr. Rohatgi and Mr. Singhvi that in terms of Article 11.3.4 read with the definition of SBAR, the parties have agreed to apply the Prime Lending Rate applicable for loans with one year maturity as fixed from time to time by State Bank of India in fixing the applicable LPS rate and the parties have also agreed that in case SBI PLR is not available, the parties are to mutually agree to the interest rate. Therefore, the parties have, by doctrine of incorporation, included a particular interest rate for calculation of LPS. It is not open to the Appellant to seek an interest rate different from what has been contractually agreed, as held in CLP India Private Limited v. Gujarat Urja Vikas Nigam Limited and Anr. 2020 (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenditure/cost incurred by the generating company, it only receives the bid tariff. Therefore, the argument that generating companies are benefitting on account of an arbitrage between the LPS Rate and interest rates being paid by them is incorrect. 121. Mr. Mukherjee finally argued that the APTEL and the MERC have rightly held that payment/imposition of LPS is within the control of the Appellant. Mr. Mukherjee submitted that, being in default admittedly, the Appellant ought not to be permitted to benefit from its default and seek a lower penalty for failure to comply with its obligations of making timely payment. The defaults were during 2011 to 2017 during which time there was no pandemic. The Appellant has recovered the amount it was supposed to pay to the Respondent No. 5 during the period in question. Despite recovering this amount as part of its tariff, it deliberately and wilfully delayed in payment of these amounts to the Respondent Power Generating Companies. In light of the admitted default, the Appellant is not entitled to relief, let alone relief in exercise of jurisdiction Under Article 142 of the Constitution. 122. In response to the submission of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff. Mr. Mukerjee submitted that Mr. Singh's argument of bill discounting has no bearing on this case at hand since Rattan India is not availing of bill discounting. 128. Ms. Divya Anand adopted the submissions of Mr. Rohatgi and Mr. Singhvi and added that Court has defined 'unjust enrichment' as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. She argued that a person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. In support of her argument, Ms. Anand cited Indian Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161. 129. Justifying the direction of APTEL on the Appellant to make payment in terms of the order of MERC, Mr. Rohatgi referred to an Office Memorandum dated 08.03.2019 of the Ministry of Power, Government of India mandating that Electricity Regulatory Commissions must ensure payment of LPS as per the Power Purchase Agreements where payment is delayed. Mr. Rohatgi argued that it is in the interest of the Appellant to liquidate the outstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days. 134. Mr. Mukerjee further submitted that, in terms of Section 120 of the Electricity Act, the APTEL is not bound by the procedure laid down by the Code of Civil Procedure 1908. The directions for time bound payment or payment within the prescribed timeframe is consistent with past judgments of the APTEL including the judgment dated 14.09.2019 in Appeal 202 of 2018, which was upheld by this Hon'ble Court in Jaipur Vidyut Vitran Nigam Limited v. Adani Power Rajasthan Limited (supra). 135. Mr. Mukerjee submitted that, one of the objectives of the Electricity Act is time-bound disposal of matters. This is evident from Section 111(5) of the Electricity Act. Any direction for payment, is only in furtherance of such direction. 136. Mr. Mukerjee further argued that the Paragraphs 27 to 34 of the Impugned Judgment deal with sectoral issues including delay in adjudication of claims. In this case, the delay in adjudication has resulted in severe stress in the power sector in addition to financial impact in the form of carrying cost and LPS. However, the APTEL held that since the Electricity Act does not have a specific provision granting power to the Electricity Regulatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled position of law that Courts have the power to execute their own orders. The aforesaid position has been confirmed by the Hon'ble Supreme Court in State of Karnataka v. Vishwabharathi House Building Cooperative Society and Ors. (2003) 2 SCC 412 (paras 59 to 62). 141. Mr. Mukerjee argued that the Electricity Act, 2003 has to be interpreted to also include and incorporate the power to execute by steps such as attachment of accounts, suspension/revocation of license etc. Mr. Mukerjee further argued that the role and function of Electricity Regulatory Commissions should not be viewed from the perspective of 'civil courts' alone. Unlike Civil Courts which assume jurisdiction only when a dispute arises, the Regulatory Commissions have an overarching regulatory power over licensees. The Regulatory Commissions continue to exercise continuous regulatory supervision over the parties (licensees) especially over tariff. In support of his submission Mr. Mukherjee cited All India Power Engineering Federation and Ors. v. Sasan Power Limited and Ors. (2017) 1 SCC 487 (para 31). This will protect the financial health of the sector while protecting public interest by abusing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 24, reproduced below: 24. It is submitted by the contesting Respondents (generators) that LPS liability of the Appellant on account of defaults in timely payments for the period between 01.07.2010 and 31.03.2017 had crystallized and the dispute as to the rate of LPS was raised to vex it further. It is not denied that the Appellant had not disputed any of the Monthly Bills or Supplementary Bills as per the procedure prescribed under the PPA. This rendered the demands to have become final and conclusive. The notice based on plea of CIL was issued in 2016, the issue having remained pending for 5 years, depriving the generators of the recompense for the loss suffered. Payment of LPS is triggered only when there is a default by MSEDCL. LPS is levied under the PPAs which were duly executed by MSEDCL. In these circumstances, it is inappropriate to project the outstanding liability towards LPS as an additional burden being placed upon MSEDCL.. 145. Mr. Mukerjee submitted that the judgment in Jaipur Vidyut Vitran Nigam Ltd. v. Adani Power Rajasthan Ltd. (supra) to contend that the LPS rate should be limited to 9% is misconceived. He submitted that reliance of the Appellant, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1908: Provided that the Supreme Court may, if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. 148. An appeal lies to this Court Under Section 125 only on grounds permitted in Section 100 of the Code of Civil Procedure, 1908 (CPC). Section 100 of Code of Civil Procedure is set out hereinbelow: 100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this Section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Act, 2003 is maintainable before this Court only on the grounds specified in Section 100 of the Code of Civil Procedure. Section 100 Code of Civil Procedure in turn permits filing of an appeal only if the case involves a substantial question of law. Findings of fact recorded by the courts below, which would in the present case, imply the Regulatory Commission as the court of first instance and the Appellate Tribunal as the court hearing the first appeal, cannot be reopened before this Court in an appeal Under Section 125 of the Electricity Act, 2003. Just as the High Court cannot interfere with the concurrent findings of fact recorded by the courts below in a second appeal Under Section 100 of the Code of Civil Procedure, so also this Court would be loath to entertain any challenge to the concurrent findings of fact recorded by the Regulatory Commission and the Appellate Tribunal. The decisions of this Court on the point are a legion. Reference to Govindaraju v. Mariamman (2005) 2 SCC 500 : AIR 2005 SC 1008], Hari Singh v. Kanhaiya Lal (1999) 7 SCC 288 : AIR 1999 SC 3325, Ramaswamy Kalingaryar v. Mathayan Padayachi 1992 Supp (1) SCC 712 : AIR 1992 SC 115, Kehar Singh v. Yash Pal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on about the limits of the powers conferred on the High Court in dealing with second appeals has been considered by High Courts in India and by the Privy Council on several occasions. One of the earliest pronouncements of the Privy Council on this point is to be found in the case of Durga Choudhrain 17 IA 122 : ILR (1891) 18 Cal 23 (PC). In the case of Deity Pattabhiramaswamy v. S. Hanymayya AIR 1959 SC 57: 1958 Andh LT 834, this Court had occasion to refer to the said decision of the Privy Council and it was constrained to observe that 'notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, Code of Civil Procedure, some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in litigation and confusion in the mind of the litigant public.' On this ground, this Court set aside the second appellate decision which had been brought before it by the Appellants. In R. Ramachandran Ayyar v. Ramalingam Chettiar (1963) 3 SCR 604 : AIR 1963 SC 302, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. 9. In Dudh Nath Pandey v. Suresh Chandra Bhattasali (1986) 3 SCC 360, a Bench of this Court held that: (SCC Head o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia notification which alters, modifies, cancels or replaces an earlier notification would tantamount to a change in law. However the notification relating to alteration of the lending rates chargeable by banks and financial institutions are not laws which relate to the Power Purchase Agreements in question, and therefore do not attract, as the case may be, Article 13 of the Stage 1 Agreements or Article 10 of the Stage 2 Agreements. 161. The RBI circulars/guidelines referred to above are admittedly instructions issued to banks and financial institutions and are not applicable to the Appellant or to the Respondent-Power Generating Companies, who are engaged in the business of production, sale/purchase and/or distribution of electricity and not of advancing loans. Moreover, SBAR as defined in the Power Purchase Agreements is admittedly not linked to any RBI guidelines or circulars. The guidelines/circulars are thus not relevant to the issues involved in this appeal. 162. As rightly argued by the counsels appearing for the Power Generating Companies, the RBI circulars/guidelines to banks, advising the banks to follow certain norms, while setting their benchmark reference rates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess of the PLR for loans with 1 year maturity, as fixed from time to time by SBI. Moreover, the parties have consciously agreed that in the absence of such rate, the LPS rate shall be mutually agreed to by the Parties. 169. As argued by Mr. Rohatagi, Mr. Singhvi and Mr. Mukherjee, the purpose for which the Guidelines/Circulars have been issued by the Reserve Bank of India or their impact on the rates of interest on loans and advances, are not relevant to this appeal. 170. The provision in the Power Purchase Agreement, whereby the parties are to mutually agree on a rate of interest, in case there is no SBI Prime Lending Rate, in itself excludes the applicability of the general provision for Change in Law contained in Article 13 of the Power Purchase Agreement to Late Payment Surcharge. 171. In Adani Power (Mundra) Ltd. v. Gujarat Electricity Regulatory Commission (supra), this Court found: 38. In the present case, the perusal of various Articles would reveal that the provisions Under Article 14 are general in nature. The provision Under Article 3.4.2 is specific, only to be invoked in the case of non-compliance with any of the conditions as provided Under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or create a new contract between the parties. The Court has to simply apply the terms and conditions of the agreement as agreed between the parties, as observed by this Court in Shree Ambica Medical Stores and Ors. v. Surat People's Co-operative Bank (supra), cited by Ms. Divya Anand. This appeal is an attempt to renegotiate the terms of the PPA, as argued by Ms. Divya Anand as also other Counsel. It is well settled that Courts cannot substitute their own view of the presumed understanding of commercial terms by the parties, if the terms are explicitly expressed. The explicit terms of a contract are always the final word with regard to the intention of the parties, as held by this Court in Nabha Power Ltd. (NPL) v. Punjab State Power Corporation Ltd. (supra) cited by Ms. Anand. 178. There is substance in Ms. Anand's argument that the Appellant is obliged to seek amendment of the provisions of the Power Purchase Agreement only in accordance with the agreed procedure for amendment of the terms thereof. The agreed rate of Late Payment Surcharge can only be amended in the absence of SBI PLR and that too with the mutual consent of the parties to the Power Purchase Agreement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference is that very stark. Loans are advanced at a mark-up over Base Rate and MCLR, while during the PLR regime, loans were offered at a discount on PLR. 182. In any case, the Appellant cannot contend that the Reserve Bank of India circulars are to be considered as Change in Law, since Article 13.3.1 of the Stage 1 agreements corresponding to Article 10.4.1 of the Stage 2 agreements provides that notices of Change in Law events are to be issued by the affected party, as soon as reasonably practicable, after the affected party becomes aware of Change in Law event or when it should reasonably have known of the Change in Law. 183. In this case, the changes cited by the Appellant were effected by RBI from July 2010 and April 2016 and notified in advance. The Appellant issued notices of Change in Law as late as in September 2016, more than six years after the Reserve Bank of India introduced the base rate system in place of the BPLR system. Furthermore, while the guidelines on the base rate system were published on 9th April 2010 and introduced with effect from 01.07.2010, the Appellant entered into Power Purchase Agreements with the Respondent No. 2 on 9th August 2010 and on 16t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non-payment of the invoices raised by the Power Generating Companies for the supply of power to the Appellant, had put the Respondent-Power Generating Companies under immense financial stress, as their source of revenue is from the sale and supply of power generated from their power plants. The Respondent Power Generating Companies cannot be burdened with the consequences of the Appellant's defaults. 188. The judgment of this Court in M/s. Kailash Nath Associates v. Delhi Development Authority (supra) cited by Mr. Singh is clearly distinguishable since this Court found that there had been no breach of contract by the Appellant (Para 44). Further, the Court did not accept the view of the Division Bench, that the fact that DDA had made a profit from re-auction was irrelevant, since compensation for breach of a contract can be given for damage or loss suffered. If no damage is suffered by reason of the breach, the law does not provide for a windfall. 189. In this case, the Appellant admittedly did not pay the bills raised by the Power Generating Companies within time. The Power Purchase Agreements provided for Late Payment Surcharge on the presumption that delayed payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 136 and Central Bank of India v. Ravindra and Ors. 2002 (1) SCC 367. This Court after considering the above-mentioned judgments of this Court cited on behalf of the licensee held that none of the decisions would come to the aid of the licensee. This Court held: 192. The ratio of the case, it is not attracted for the reason that in the instant matter, it is the contractual rate of interest and penalty agreed to which cannot be said to be arduous in any manner. The rate of interest has been agreed and particularly since it is a revenue sharing regime, and the licensees have acted in conscious disregards of their obligation. Thus on the anvil of the decision above also, they are liable to pay the dues with interest and penalty...... There is no such discretion available when the parties have agreed in default what amount is to be paid. It automatically follows that it is not to be determined by the licensor once over again. Parties (licensor and licensees) are bound by the terms and conditions of the contract. There is no enabling Clause to vary either the rate of interest or the penalty provided therein and even if permissible, it is not called for to vary interest or penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute in the present case with regard to the principal sums due under the monthly bills, interest on delayed payment at 2% in excess of SBI PLR cannot be said to be arbitrarily high. There is no reason for this Court to reduce the contractual rate of interest and thereby alter or modify the contract between the parties, in exercise of its powers Under Article 142 of the Constitution of India. 196. We need not go into the question whether or not the Appellant has funds to clear its interest liability. The Appellant cannot continue to get supply of electricity without having appropriate funds. Appellant would necessarily have to raise funds to clear its contractual obligations. 197. Even assuming that the burden of interest would have to be passed on to the consumers, that cannot be the ground for the Appellant to resile from its contractual commitment to the Power Generating Companies. The Appellant cannot pass on the burden for delay in making payment to the Power Generating Companies. In any case the claims as argued by Mr. Singhvi pertains to a period of three years before filing of the petition before the MERC on 2nd December, 2016 and therefore barred by limitation. 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by the Appellant to its consumers against payment of retail tariff. Secondly, the energy bills in question, raised by the Respondent Power Generating Companies have never been disputed by the Appellant, as noticed by the APTEL in the impugned judgment and order, the relevant part whereof is extracted hereunder: 24. It is submitted by the contesting Respondents (generators) that LPS liability of the Appellant on account of defaults in timely payments for the period between 01.07.2010 and 31.03.2017 had crystallised and the dispute as to rate of LPS was raised to vex it further. It is not denied that the Appellant had not disputed any of the Monthly Bills or Supplementary Bills as per the procedure prescribed under the PPA. This renders the demands to have become final and conclusive. The notice based on plea of CIL was issued in 2016, the issue having remained pending for five years, depriving the generators of the recompense for the loss suffered. Payment of LPS is triggered only when there is a default by MSEDCL. LPS is levied under the PPAs which were duly executed by MSEDCL. In these circumstances, it is inappropriate to project the outstanding liability towards LPS as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated in the order of MERC. The APTEL rightly upheld the direction. In any case, such a direction cannot be interfered with in exercise of powers Under Section 125 of the Electricity Act which corresponds to the power of Second Appeal Under Section 100 of the Code of Civil Procedure, since the sine qua non for entertaining an appeal is the existence of a substantial question of law. 208. After the hearing of this appeal was concluded and the appeal was reserved for judgment, the Appellant filed an application to bring on record additional facts and documents in the form of queries under the Right to Information Act, 2005 made by one Alka Mehta to the State Bank of India and the responses thereto in an attempt to show that PLR would not apply to short term loans advanced by SBI after transition to the Base Rate/MCLR system. This Court cannot take note of any documents sought to be introduced after the conclusion of hearing. In any case, as observed above, this Court cannot in a second appeal Under Section 125 of the Electricity Act, 2003 interfere with concurrent factual findings arrived at by MERC and APTEL on the basis of facts admitted by the Appellant. The Appellant had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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