RITHWIK ENERGY GENERATION PVT. LTD. versus BANGALORE ELECTRICITY SUPPLY CO. LTD. & ORS. ETC.

Citation: [2018] 1 S.C.R. 1023 · Decided: 06-02-2018 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Dismissed

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Judgment (excerpt)

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1023
RITHWIK ENERGY GENERATION PVT. LTD.
v.
BANGALORE ELECTRICITY SUPPLY CO. LTD. & ORS. ETC.
(Civil Appeal Nos. 5084-5085 of 2015)
FEBRUARY 06 2018
[R. F.  NARIMAN AND NAVIN SINHA, JJ.]
Electricity: Supply under Open Access System – PPA between
appellant and respondent no.1 – State Commission did not accord
approval to the PPA and returned the same – Appellant filed O.P.
before State Commission seeking declaration that no valid PPA
subsisted between them  – State Commission dismissed the O.P. –
Appeal before Appellate Tribunal – During pendency of appeal,
appellant sent Letter dated 5.5.2011 to respondent no.1 mentioning
the defaults in making payment for power bill and interest and
default in opening letter of credit and seeking permission to sell the
power to third party –  Meanwhile appellant sought to bring
subsequent events on record for decision of appeal – Appellate
Tribunal examined the subsequent events on merits and ultimately
dismissed the appeal holding that no notice to remedy the default
or termination notice was served by appellant on the respondent
no.1 – On 11.5.2012, appellant sent notice of termination –
Respondent no.1 made certain payments and also opened letter of
credit and thereafter filed O.P. before State Commission seeking
declaration that termination of PPA by appellant was invalid – On
9.5.2013, Central Commission asked appellant to approach State
Commission for adjudication of dispute regarding subsistence or
otherwise of the PPA after the termination notice dated 11.05.2012
– O.P. by respondent was allowed by State Commission by order
dated 17.3.2017, on the ground that notice dated 5.5.2011 was not
a default notice and therefore subsequent notice of termination based
upon 5.5.2011 notice could not be said to be valid in law – Appellate
Tribunal dismissed appeals of appellant filed against order dated
9.5.2013 and 17.3.2017 – In the instant appeals, plea of appellant
inter alia was that finding based on letter dated 5.5.2011 by Appellate
Tribunal was not on a matter directly and substantially in issue but
being merely collateral could not be said to be res judicata – Held:
                                      [2018] 1 S.C.R. 1023
   1023
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
There is no doubt whatsoever that the appellant itself invited the
Appellate Tribunal to go into a subsequent event, which, according
to it, was of extreme importance in deciding the appeal – This being
the case,  after contest, and after the Appellate Tribunal held in
favour of the appellant that such subsequent event was indeed
important and will be decided by the Tribunal, and then suffering a
finding which was found, on merits, to be against it, the appellant
was clearly estopped from attempting to argue now that the very
important issue raised by way of subsequent events according to
the appellant itself should be held, as a matter of law, to be only a
collateral issue and therefore, not res judicata – A reading of PPA
showed that upon occurrence of an event of default, a default notice
may be served to the Corporation in writing specifying in reasonable
detail the event of default giving rise to the notice, and calling upon
Respondent No.1 to remedy the same within a period of 30 days
from the delivery of the default notice unless the parties have agreed
otherwise – It is only then that the Company may deliver a
termination notice to the Corporation – Letter dated 05.05.2011
spoke only of events of default, but did not call upon Respondent
No.1 to remedy the same within the period specified – Thus there
was no substantial compliance of Clause 9.3.2 of the PPA – Appellate
Tribunal in the impugned judgment cannot be faulted on any score.
Dismissing the appeals, the Court
HELD: 1. Once a Court or Tribunal decides to look into a
subsequent event at the behest of any of the parties, the Court
itself thinks that it is important to do so, otherwise it would not
look into such subsequent event.  As seen from the Appellate
Tribunal’s judgment, not only did the appellant considered the
subsequent event as directly and substantially in issue for deciding
the appeal, which incidentally was not opposed by Respondent
No.1 on this ground but on the ground that it would be bringing
in a new issue at the stage of appeal, but the Appellate Tribunal
having turned down the Respondent No.1’s plea, and having
examined subsequent events, it cannot but be said that the
Appellate Tribunal itself 

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