Green Infra Wind Solutions Limited vs Andhra Pradesh Electricity Regulatory Commission & Ors. on 15 July 2026

ORDER

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. In this application, the Appellant has made following prayers :- “(a) Direct Respondent Nos. 2 and 3 to pay Rs. 1,70,58,404, as an interim measure, towards the outstanding as per the interim tariff of Rs. 2.43 per unit for the period October 2017 to July 2018, and for March & May 2020 or set aside the impugned order dated 07.07.2021 passed by Ld. APERC in OP No. 60 of 2019;

(b) Direct Respondent Nos. 2 and 3 to pay 50% of the total outstanding as per the tariff of Rs. 4.84 per unit to GIWSL till December 2020;

(c) Direct Respondent Nos. 2 and 3 to set up a Letter of Credit in favour of GIWSL under Article 5.4 of the PPA; and (d) Pass such other orders as this Hon'ble Tribunal deems fit.

2. We have heard Learned Counsel for the Appellant and have perused the written note of arguments submitted on behalf of Respondent No. 2.

3. It appears that the Appellant had filed petition bearing O.P. NO. 60 of 2019 before the Commission seeking recovery of pending monthly bills from Respondent No. 2 for supply of power in terms of Power Purchase Agreement dated 18th February, 2017 along with carrying cost and late payment surcharge. The Appellant had also sought direction against Respondent No. 2 for setting up a payment security management by way of opening a letter of credit in favour of Appellant as mandated under the PPA and not to deduct any amount as Generation Based Incentive from the tariff payable to Appellant. The prayers made in the petition are extracted hereinbelow:-

“(a) To direct APSPDCL/APPCC to release payments due to GIWSL set out in paragraph 3 of the petition which have been unlawfully withheld; (b) to direct APSPDCL to set up a payment security mechanism as required under the PPA;

(c) to direct APSPDCL/APPCC to pay 75% of the outstanding amounts to GIWSL within one week, pending final adjudication.

(d) to direct the respondents to pay carrying cost to the petitioner to be determined by the Commission.”

4. The petition was disposed off by the Commission vide order dated 7th July, 2021 which has been impugned in this appeal. The relevant portion of the impugned order is reproduced hereinbelow:- “We have heard Sri Rohit Venkat, learned Counsel for the petitioner and Sri P. Shiva Rao, learned Counsel for the respondents. As regards prayers (a) and (c) which are substantive in nature, they have become infructuous in view of the payment made at the interim tariff fixed by the Hon'ble High Court in W.P.No.9844 of 2019.

It is not in dispute that the issue of review of the PPAs which is the subject matter of O.P.No.17 of 2019 is sub judice before a Division Bench of the Hon'ble High Court in a batch of Writ Appeals. In the said cases, interim order of stay of adjudication of O.P.No.17 of 2019 has been granted and the same is in force. In the light of these facts, it is not possible for the Commission to adjudicate the issues raised by the petitioner at this stage as regards the PPA tariff. The prayers (b) and (d) being ancillary to the main prayers, the Commission is of the opinion that the same may be adjudicated at an appropriate time. Accordingly, the O.P. is disposed of without prejudice to the right of the petitioner to agitate the prayers made in (b) and (d) after disposal of the batch of Writ Appeals pending before the Hon'ble High Court.”

5. The Appellant has assailed the said order of the Commission on following grounds interalia :- “(a) Ld. APERC has erroneously held that GIWSL's prayer seeking directions to APSPDCL to release payments in accordance with the PPA has been rendered

infructuous in view of the payment made at the interim tariff of Rs. 2.43 per unit, without appreciating that GIWSL's claim before Ld. APERC was for APSPDCL to make payment of full tariff as specified under Article 2.2 of the PPA i.e., @ Rs. 4.84 per unit.

(b) Without prejudice to the above, Ld. APERC failed to appreciate that APSPDCL has not made payments to GIWSL for all months even at the interim tariff of Rs. 2.43 per unit. It is pertinent to note that even at the interim tariff, Rs. 1,59,18,108 for the period October 2017 to July 2018 and Rs. 11,40,296 for the months of March 2020 and May 2020 is due and pending.

(c) Ld. APERC's finding of payment having been made to GIWSL as per Order dated 24.09.2019 in W.P. No. 9844 of 2019 and batch is contrary to the record. In fact, there is nothing on record to prove that the payments have been made. Thus, Ld. APERC failed to make a proper inquiry into the facts of the matter and arrived at the conclusion qua payment of dues by APSPDCL without any reasonable basis.

(d) Ld. APERC has wrongly concluded that the prayer for opening payment security mechanism/LC is ancillary to the main prayer. The obligation of APSPDCL to set up LC in favour of GIWSL under the PPA is independent of payment to be made towards monthly bills by APSPDCL to GIWSL under the PPA. APSPDCL's obligation to set up payment security mechanism/LC is mandated not only under Article 5.4 of the PPA, but also under Clause 6.2 of the National Tariff Policy 2016 and the Ministry of Power ("MoP") Notifications dated 28.06.2019, 23.07.2019 and 31.07.2019.

(e) Ld. APERC failed to return any finding on claims raised by GIWSL in its petition towards wrongful deduction of GBI component by APSPDCL from tariff payable to GIWSL and liability of APSPDCL to pay LPS on delayed /pending bills. The amount towards GBI is being withheld contrary to the order dated 05.10.2018 passed by this Hon'ble Tribunal in Appeal No. 284 of 2018.

(f) By failing to adjudicate the issues raised by GIWSL in the petition, Ld. APERC has failed to discharge its

statutory functions under Sections 86(1)(f) and 86(1)(e) of the Electricity Act, 2003.”

6. The prayers made in this appeal by the Appellant are as under:- “(a) Set aside the Impugned Order dated 07.07.2021 passed by Ld. APERC in O.P. No. 60 of 2019; (b) Direct Respondent Nos. 2 and 3 to pay Rs. 59,92,96,545 (at PPA tariff of Rs. 4.84/unit) towards monthly bills raised by GIWSL till December 2020, along with Late Payment Surcharge/Carrying Cost as per Article 5.2 of the PPA;

(c) Direct Respondent Nos 2 and 3 to pay future monthly bills on or before their respective due dates under the PPA, (d) Direct Respondent Nos. 2 and 3 to set up a Letter of Credit in favour of GIWSL under Article 5.4 of the PPA; (e) Award interest at the rate of 8.32% in favour of GIWSL, and

(f) Pass any such other and further reliefs as this Hon'ble Tribunal deems just and proper in the nature and circumstances of the present case.”

7. During the course of hearing of application under disposal, the thrust of the Learned Counsel for the Appellant was only with regards to the prayer (c) i.e. direction to Respondent Nos. 2 & 3 to set up a letter of credit in favour of Appellant under Regulation 5.4 of the PPA.

8. We note that this prayer in the interim application is identical to the prayer (d) made in the appeal, which has been extracted hereinabove. Therefore, we concur with the contentions agitated on behalf of Respondent No. 2 that granting of such interim relief in this application would tantamount to granting the final relief as made in the appeal.

9. Be that as it may, we feel concerned about the perfunctory manner in which the Commission has dealt with the Appellant’s petition in the impugned order. A bare look at the impugned order would reveal that the same is cryptic and sans any reasons and has been passed without discussing the rival contentions of the parties. Therefore, we find it appropriate to, instead of passing any directions in the interim application under disposal, to take up the appeal itself for final disposal.

10. The parties shall explain on the next date as to why the case may not be remanded back to the Commission for reconsideration and for passing a fresh reasoned order upon taking note of the rival contentions/submissions of the parties.

11. List on 05.08.2026.

Pronounced in the open court on this 15th day of July, 2026.

(Virender Bhat)

(Seema Gupta)

Judicial Member

Officiating Chairperson

✓ REPORTABLE / NON REPORTABLE

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