Tamil Nadu Power Distribution Corporation Limited vs Tamil Nadu Electricity Regulatory Commission & Anr on 10 August 2026

O R D E R

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER IA NO.595 OF 2026 (For condonation of delay in filing appeal)

1. This application has been filed by the appellant seeking condonation of delay in filing the appeal.

2. Facts and circumstances of the case leading to the filing of the instant appeal which are relevant for the disposal of the present application are undisputed and are narrated hereinbelow: - (a) The appeal is directed against the three orders passed by the 1st respondent Tamil Nadu Electricity Regulatory Commission (hereinafter referred to as “the Commission”) i.e. order dated

09.07.2024 passed in MP No.28/2023 (in short “first impugned order”), order dated 28.01.2025 passed in RP No.2/2024 (in short “second impugned order”) and order dated 17.02.2026 passed in MP No.41/2025 (in short “third impugned order”).

(b) The respondent no.2 Techno Electric and Engineering Company Limited, a wind power generator with a total installed capacity of 111.90 MW in the State of Tamil Nadu, had filed a petition bearing MP No.28/2023 before the Commission challenging the circular dated 01.04.2022 issued by appellant, the distribution licensee in the State of Tamil Nadu, through which Average Power Purchase Cost (APPC) was capped at 75% of the discovered price for wind energy at Rs.2.69/unit as notified by Solar Energy Corporation of India (SECI) i.e. the tariff discovered under Section 63 of the Electricity Act, 2003.

(c) The petition was disposed of by the Commission vide order dated 09.07.2024 (first impugned order) holding the following in favour of 2nd respondent: -

(i) 75% cap cannot be applied on APPC considering bid discovered tariff;

(ii) Directed the appellant to pay tariff to 2nd respondent at full APPC rate without applying any cap whenever APPC rate does not breach the preferential tariff; and

(iii) Whenever APPC rate breaches the preferential tariff, the appellant shall make payments to 2nd respondent at 75% of the preferential tariff.

(d) The 2nd respondent filed review petition bearing No.2/2024 on 06.08.2024 before the Commission seeking review of the above noted first impugned order dated 09.07.2024 on the limited issue that the Commission linked and compared APPC with preferential tariff for the control period in which the Renewable Energy (RE) plant was commissioned i.e. the “commissioning year” instead of “corresponding year”.

(e) The review petition was allowed by the Commission vide order dated 28.01.2025 (second impugned order) thereby holding that the cap on APPC would arise in the year in which the APPC rate crosses over preferential tariff of the “corresponding year” and not the year of commissioning of the RE plant.

(f) During the pendency of the review petition before the Commission, the appellant had already filed appeal no.131/2025 in this Tribunal challenging the first impugned order dated 09.07.2024 contending, inter alia, that:

(i) bid discovered tariff can be considered for capping APPC in absence of preferential tariff; and

(ii) for comparing APPC, preferential tariff of the “corresponding year” has to be considered instead of “commissioning year” of the RE plant.

(g) Manifestly, the contention no.(ii) raised in the appeal was addressed by the Commission in the review order dated 28.01.2025, as noted hereinabove.

(h) While the said appeal filed by the appellant was pending before this Tribunal, the appellant filed a petition before the Commission bearing MP No.41/2025 seeking clarification of the review order dated 28.01.2025. The petition was filed in the month of June, 2025.

(i) Subsequent to filing of the clarification petition before the Commission, the appellant withdrew the appeal no.131/2025 from this Tribunal on 16.09.2025 in view of the pendency of the clarification petition before the Commission. The appellant had also sought liberty to reagitate the issue, if necessary, after culmination of the proceedings in clarification petition bearing MP No.41/2025 before the Commission and accordingly, such liberty was granted by this Tribunal.

(j) The clarification petition of the appellant was dismissed by the Commission vide order dated 17.02.2026 (third impugned order) holding that the issue with respect to comparison of the APPC with the tariff discovered through competitive bidding had already been conclusively decided in its earlier order dated 09.07.2024 (first impugned order) and that the Commission had become functus officio and therefore, could not reopen or rewrite its earlier decision by way of clarifications.

(k) Accordingly, the appellant has approached this Tribunal again by way of instant appeal purportedly in terms of the liberty granted by this Tribunal vide order dated 16.09.2025 while dismissing the appellant’s earlier appeal no.131/2025.

3. Thus, there has been a delay of 632 days in challenging the first impugned order, whereas the delay in challenging the second impugned order stands at 424 days. Such period of delay includes the period of 45 days from the date on which the impugned orders had been passed.

4. We have heard Mr. B.P. Patil, learned senior counsel appearing on behalf of the appellant and Mr. Sajan Poovayya, learned senior counsel appearing on behalf of the 2nd respondent. We have also perused the impugned orders, the application for condonation of delay as well as the reply to the same filed by the 2nd respondent.

5. Learned senior counsel for the appellant argued that the cause of action to approach this Tribunal by way of instant appeal arose only upon dismissal of the clarification petition by the Commission vide order dated 17.02.2026 whereby the Commission declined to examine the substantive issue raised by the appellant on the ground that it had become functus officio. He would submit strenuously that the delay in filing the appeal has neither been intentional nor deliberate but has occurred only on account of bonafide and diligent pursuit of remedies by the appellant before the Commission including the proceedings of the clarification petition. Thus, on these submissions, the learned senior counsel urged this Tribunal to condone the delay in filing the appeal.

6. Per contra, on behalf of 2nd respondent, it is argued by the learned senior counsel that by filing the clarification petition before the Commission during the pendency of the earlier appeal no.31/2025, the appellant has indulged in forum shopping and thus, has abused the process of law. It is argued that even if the issues raised in the clarification petition were identical to the issues dealt by the Commission in the first and second impugned orders, the clarification petition was not an extension of the proceedings that culminated in passing of first and second impugned orders. It is pointed out that the clarification petition was a fresh petition and since the appellant could not obtain desired reliefs in the same from the Commission, it misused the liberty granted by this Tribunal by filing instant fresh appeal. Learned senior counsel would further argue that liberty granted by this Tribunal does not render the instant fresh appeal maintainable and does not save it from law of limitation. In this regard, he has relied upon the judgment of the Hon'ble Supreme Court in Arifa v. Abhiman Apartment Cooperative Housing Society Ltd., (2025) 10 SCC 700. Learned senior counsel also cited the order of this Tribunal dated 15.01.2026 in DFR No.315/2025 in TNPDCL v. TNERC & Ors. to canvas that this Tribunal has time and again been refusing to condone the delay of more than one year in filing the appeals. Accordingly, the learned senior counsel urged us to dismiss the application.

7. We have given a thoughtful consideration to the rival submissions made by the learned senior counsels.

8. Sub-section 2 of Section 111 of the Electricity Act, 2003 provides that every appeal shall be filed in this Tribunal within a period of 45 days from the

date on which the copy of the impugned order is received by the aggrieved person i.e. the appellant. Proviso attached to this sub-section empowers this Tribunal to entertain an appeal after the expiry of the said period of 45 days if this Tribunal is satisfied that the appellant was prevented by “sufficient cause” from filing the appeal within the prescribed period of 45 days. This proviso attached to Section 111(2) of the Act is in pari materia with Section 5 of the Limitation Act, 1963, which provides that any appeal or any application may be admitted after the prescribed period, if the appellant or applicant satisfies the court that he had “sufficient cause” for not preferring the appeal or making the application within such period.

9. The words “sufficient cause” had come up for interpretation before the Hon'ble Supreme Court in Shivamma (Dead) by LRs v. Karnataka Housing Board & Ors., 2025 INSC 1104. Paragraph Nos.23 and 40 of the judgment are material for our discussion and are extracted hereinbelow: - “23. In Ramkumar Choudhary (supra), this very Bench had the occasion to examine the meaning of the expression “within such period” used in Section 5 of the Limitation Act. Placing reliance on the decisions of this Court in Ajit Singh Thakur (supra) and Basawaraj (supra), it was held that for the purpose of Section 5, the party seeking condonation of delay has to explain why it was unable to institute the proceedings within the prescribed period of limitation. Events that occurred after the expiry of the period of limitation till the date of actual filing of the appeal or application, as the case may be, would be of no consequence insofar as condonation is concerned, if it is unable to explain what came in the way of the party that it was unable to file it. It reiterated that no event or circumstance arising after the expiry of limitation can constitute such sufficient cause, where the party allowed the limitation to expiry unless it can trace such failure in allowing the limitation to expire to a cause arising within the period of limitation. The relevant observations read as under:- …..

40. As such, under Section 5 of the Limitation Act, for the purpose of seeking condonation of delay in filing of an appeal or application, as the case may be, beyond the stipulated period of limitation, the delay in the filing has to be explained by demonstrating the existence of a “sufficient cause” that resulted in such delay for both the prescribed period of limitation as-well as the period after the expiry of limitation, up to actual date of filing of such appeal or application, as the case may be, or to put it simply, explanation has to be given for the entire duration from the date when the clock of limitation began to tick, up until the date of actual filing, for seeking condonation of delay by recourse to Section 5 of the Limitation Act.”

10. Thus, in view of the legal principle enunciated in the above referred Paragraphs of the judgment, while citing with approval the earlier judgments in Ramkumar Choudhary’s case and Basawaraj’s case, the delay in filing has to be explained by demonstrating existence of “sufficient cause” that prevented the appellants from filing the appeal both within the prescribed period of limitation as well as the period after the expiry of limitation period up to the actual date of filing. However, Paragraphs 136 and 137 of the judgment are also material and are extracted hereinbelow: - “136 When technical considerations of limitation conflict with the imperative of substantial justice, the latter should ordinarily prevail. Rules of limitation are not designed to destroy the rights of parties but to prevent inordinate delay in seeking remedies. Thus, the interpretation of “sufficient cause” must be liberal and purposive, aimed at advancing the cause of justice rather than defeating it. This is why the courts, while construing applications for condonation of delay, emphasize the bona fides of the applicant over the sheer arithmetical length of the delay.

137. Where strict adherence to these rules results in injustice, the Court is dutybound to apply a liberal interpretation of “sufficient cause” so as to balance technical requirements with the demands of justice. A litigant does not stand to benefit by lodging an appeal late, and therefore, a pragmatic and justice-oriented approach must inform the judicial discretion under Section 5. This decision continues to be the most frequently cited authority for the proposition that the judiciary should incline towards justice rather than technicality. Therefore, when courts interpret “sufficient cause,” they are expected to exercise discretion in a manner that fosters justice, fairness, and equity, keeping in mind the realities of litigation.”

11. Thus, while deciding an application for condonation of delay, the courts are duty bound to give a liberal interpretation to the term “sufficient cause” in order to balance the technical requirements with the demands of justice and are expected to exercise discretion in a manner that fosters justice, fairness and equity, while keeping in mind realities of litigation.

12. In the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 also, the Supreme Court has advocated liberal and justice oriented approach in exercise of power under Section 5 of the Limitation Act and other similar statutes but has cautioned that courts cannot be oblivious of the fact that a successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time has been consumed at various stages of litigation apart from the costs. The judgment laid down the principle that if the courts find that there has been no negligence on the part of the appellant and the cause shown for delay does not lack bonafides, then it may condone the delay but on the other hand, if the explanation given by the applicant is found to be concocted or he has been thoroughly negligent in prosecuting his case, it would be a legitimate exercise of discretion not to condone the delay.

13. In the case of Isha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy (2013) 12 SCC 649, the Apex Court has enunciated following principles to be kept in mind while deciding an application for condonation of delay: - “i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

14. In the instant case, the appellant had already assailed the first impugned order dated 09.07.2024 before this Tribunal by way of appeal no.131/2025. The same had been filed during the pendency of the review petition filed by the 2nd respondent before the Commission. The review petition came to be allowed by the Commission vide second impugned order dated 28.01.2025. Subsequent to the passing of the said order dated 28.01.2025 by the Commission, the appellant filed petition bearing MP No.41/2025 before the Commission seeking clarification of the said review order. Thereafter, the appellant approached this Tribunal with a prayer for withdrawal of the appeal no.131/2025 in view of the pendency of the clarification petition before the Commission with liberty to reagitate the issues raised in the appeal afresh after culmination of the proceedings in the clarification petition, if need so arose. Accordingly, the appeal was dismissed as withdrawn while granting such liberty to the appellant.

15. The clarification petition came to be dismissed by the Commission vide third impugned order dated 17.02.2026. Upon such dismissal of the clarification petition, the appellant filed the instant appeal purportedly in terms of the liberty granted by this Tribunal vide order dated 16.09.2025

while dismissing the appellant’s earlier appeal no.131/2025. Undisputedly, the instant appeal has been filed within the statutory period of 45 days from the date of dismissal of the clarification petition i.e. 17.02.2026, as prescribed in the Electricity Act, 2003 for filing of appeal before this Tribunal.

16. The aforesaid facts and circumstances in which the present appeal has been filed by the appellant, albeit with a delay, do not demonstrate that there has been any negligence on the part of the appellant or that its conduct exhibits lack of bonafides. It is evident that the 2nd respondent itself was not satisfied with the first impugned order dated 09.07.2024 and accordingly filed review petition no.2/2024 before the Commission seeking review of the said order, even though on a limited issue. While the review proceedings were going on, the appellant approached this Tribunal by way of appeal no.131/2025 thereby assailing the said first impugned order dated 09.07.2024. After the filing of the said appeal by the appellant, the Commission allowed the review petition filed by the 2nd respondent vide second impugned order dated 28.01.2025 which order addressed one of the contentions of the appellant also raised in the said appeal. Accordingly, the appellant appears to have been advised to seek clarification about the said review order dated 28.01.2025 from the Commission and hence, it filed a clarification petition before the Commission. The appellant probably was under the impression that the Commission would issue the clarifications as sought by the appellant and accordingly, withdrew the appeal no.131/2025 from this Tribunal with liberty to file a fresh appeal after the culmination of proceedings of the clarification petition.

17. As already noted hereinabove, the instant appeal has been filed in terms of the said liberty granted by this Tribunal to the appellant vide order dated 16.09.2025.

18. It is true that as per the judgment of the Hon'ble Supreme Court in the case of Arifa v. Abhiman Apartment Cooperative Housing Society Limited (supra), where suit or an appeal is withdrawn with the leave of court to file fresh suit or appeal, the law of limitation applies with full force in view of Rule 2 of Order 23 of CPC and such an order does not save limitation for filing the fresh appeal. Securing liberty from the appellate court does not automatically stop or extend the statutory limitation period. It does not freeze the limitation period for new proceedings. It is for this reason only that the appellant has filed the present application along with the instant appeal for condonation of delay in filing the appeal, which we are proposing to dispose of by way of this order. The appellant has not sought condonation of delay as of right by virtue of the order dated 16.09.2025 of this Tribunal vide which its earlier appeal was dismissed as withdrawn with liberty to the appellant to file a fresh appeal. The appellant has set out the facts and circumstances, as noted hereinabove, which led it to withdraw the earlier appeal no.131/2025 and thereafter to file the instant appeal afresh in terms of the liberty granted to it.

19. The reference on the part of the second respondent to the order dated 15.01.2026 of the Tribunal in DFR No.315/2025 is misplaced for the reason that this Tribunal has not laid down a general principle in that order to the effect that delay in filing an appeal beyond period of one year cannot be condoned in any circumstances. Such a principle, even if laid down, would be contrary to Section 111(2) of the Electricity Act, 2003 as well as Section 5 of the Limitation Act which do not specify any period beyond which delay cannot be condoned. These two legal provisions only envisages that delay can be and must be condoned only where the appellant demonstrates “sufficient cause” which prevented it from filing the appeal within the prescribed period of limitation. In the said referred case, this Tribunal refused to condone delay having regard to the facts and circumstances in which that appeal had been filed which are totally distinct from the facts and circumstances in which the instant appeal has been filed by the appellant herein.

20. Even though, the delay in filing the instant appeal by the appellant, when computed from the date of the first impugned order i.e. 09.07.2024, is long enough but by no stretch of imagination can it be said to be so inordinate or contumacious that it cannot be condoned. Having regard to the conduct of the appellant throughout, it is evident that the appellant was not sitting idle but had been taking steps to assail the Commission’s orders by way of different proceedings either before this Tribunal or before the Commission itself. Therefore, no negligence or inaction can be imputed to the appellant. The reasons for delay agitated by the appellant cannot be said to be concocted or fanciful. The entire gamut of facts and circumstances that have taken place after the passing of first impugned order dated 09.07.2024 by the Commission, when scrutinized in the light of legal principles enunciated by the Hon'ble Supreme Court in above referred judgments, leads to only conclusion that the delay in filing the appeal on the part of the appellant is neither deliberate nor inordinate so as to warrant dismissal of the application under consideration.

21. We are not impressed with the submissions of the learned senior counsel appearing for the 2nd respondent that by approaching the Commission with a petition for clarification of the review order dated

28.01.2025 during the pendency of the earlier appeal no.131/2025, the appellant has resorted to forum shopping. The appellant had withdrawn the appeal no.131/2025 purportedly with the hope that he may succeed in the clarification petition before the Commission as one of its grievances had been addressed in the said review order dated 28.01.2025. As an abundant caution the appellant had sought (and was granted) liberty to file a fresh appeal after the culmination of the proceedings of the clarification petition, if need so arose. The appellant could not have continued the proceedings of the appeal no.131/2025 as well as the clarification petition at the same time. Therefore, it is clearly not a case of forum shopping. Had it been so, this Tribunal would not have granted liberty, as noted hereinabove, to the appellant at the time of dismissal as withdrawn of the appeal no.131/2025 vide order dated 16.09.2025.

22. Hence, adopting the liberal and purposive interpretation of the term “sufficient cause” as advocated by the Apex Court in the case of Shivamma (supra), we are of the opinion that the demands of justice would be met in case the delay in filing the appeal is condoned subject to payment of costs.

23. Therefore, the instant application is hereby allowed and delay in filing the appeal is condoned subject to appellant paying costs of Rs.1,00,000/-

(Rupees one lakh only) to second respondent M/s Techno Electric and Engineering Company Limited within two weeks from today. Needless to add that in case of failure to pay such costs within the stipulated period, the appeal shall stand dismissed as time barred.

DFR NO.154 OF 2026 & IA NO.596 OF 2026

24. Let replies to the appeal as well as the application for interim relief be filed by the respondents within four weeks. The appellant shall file rejoinder, if any, within two weeks thereafter.

25. List the matter on 28.09.2026.

Pronounced in the open court on this the 10th day of August, 2026.

(Virender Bhat) Judicial Member

(Seema Gupta) Officiating Chairperson

REPORTABLE / NON-REPORTABLE

tp