M/s Solaire Surya Urja Pvt. Ltd. vs Central Electricity Regulatory Commission & Ors

Court: Appellate Tribunal For Electricity
Case type: R.P. No. 5 of 2025 in Appeal
Decided on: 07-04-2026

<div> IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction) R.P. No. 5 of 2025 in Appeal No. 126 of 2022 th Dated : 6 April, 2026 Present: Hon’ble Ms. Seema Gupta, Officiating Chairperson Hon’ble Mr. Virender Bhat, Judicial Member In the matter of: M/s Solaire Surya Urja Pvt. Ltd. Through Authorised Signatory (Naresh Baluja) Office No. 203, Pentagon P3, nd 2 Floor, Magarpatta City, Hadapsar, Pune, Maharashtra – 411013 Email : [email protected] … Petitioner(s) Versus 1. Central Electricity Regulatory Commission Through its Secretary rd th 3 & 4 Floor, Chanderlok Building, Janpath, New Delhi – 110 001 Email: [email protected] 2. NTPC Limited Through its General Manager (Commercial) Core-7, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi – 110 003 Email: [email protected] 3. NTPC Vidyut Vyapar Nigam Limited --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 1 of 39 Through its Chief Operating Officer NTPC Bhawan, Core-7, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi – 110 003 Email: [email protected] 4. Rajasthan Solar Park Development Company Limited Through its Chairman & Managing Director E-166, Yudhishtir Marg, C-Scheme, Jaipur, Rajasthan – 302 001 Email: [email protected] 5. Rajasthan Rajya Vidyut Prasaran Nigam Limited Through its Chairman & Managing Director Vidyut Bhawan, Janpath, Jaipur, Rajasthan – 302 005 Email: [email protected] … Respondent (s) Counsel for the Appellant(s) : Sanjay Sen, Sr. Adv. Hemant Sahai Nitish Gupta Molshree Bhatnagar Shubhi Sharma Tushar Srivastava Nipun Sharma Nimesh Jha Shaida Das Paritosh Bisen Punyam Bhutani Deepak Thakur Aparna Tiwari Kamya Sharma Varnika Tyagi Divyansh Kasana Samprati Singh Amaan Ahmed Khan for App. 1 Counsel for the Respondent(s) : Shree Venkatesh Kanika Chugh Abhishek Nangia Nihal Bhardwaj Manu Tiwari --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 2 of 39 Shivam Kumar Aashwyn Singh Harsh Vardhan Suhael Buttan Vineet Kumar Shryeshth Ramesh Sharma Ashutosh Kumar Srivastava Akash Lamba Siddharth Nigotia Mohit Mansharamani Kartikay Trivedi Mohit Gupta Aniket Kanhaua Priya Dhankar Surbhi Kapoor Nikunj Bhatnagar Kunal Veer Chopra Vedant Choudhary Tarang Saraogi Adarsh Singh Indu Uttara Drishti Rathi Ananya Dutta for Res. 2 Abhishek Mohanti Preetika Dwivedi for Res. 5 ORDER PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER 1. By way of this petition, the Review Petitioner, M/s. Solaire Surya Urja Private Limited has sought review of judgement dated th 10 February, 2025 passed by this Tribunal in Appeal No. 126 of 2022. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 3 of 39 2. Briefly stated, the petitioner is a Special Purpose Vehicle (SPV) of Solairedirect Energy India Private Limited, which was awarded two solar power projects of 70 MW each in the State of Maharashtra nd pursuant to the online e-reverse auction conducted by 2 th Respondent – NTPC on 18 January, 2016. The auction was held in furtherance of the “Guidelines for selection of 3000 MW Grid- Connected Solar PV Power Projects under Batch-II” issued by Ministry of New and Renewable Energy in March, 2015 (hereinafter referred to as NSM guidelines). 3. Subsequently, the petitioner and NTPC executed two identical nd power purchase agreements (PPA) on 2 May, 2016 wherein the petitioner agreed to supply power from these two power projects to the NTPC, the scheduled commercial operation date (SCOD) having st been agreed as 1 June, 2017. 4. The Petitioner was, under the PPAs, required to commence supply of power to NTPC from the two power projects from their st SCOD i.e. 1 June, 2017. However, the completion of the power projects got delayed due to various reasons and the various units of --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 4 of 39 st st power project achieved commissioning on 1 June, 2017, 21 July, th th 2017, 11 June, 2017, 11 August, 2017. nd 5. Accordingly, the 2 Respondent – NTPC sought to levy liquidated damages from the petitioner in terms of the relevant provisions contained in the PPAs. Various communications came to be exchanged between the parties in this regard, wherein the petitioner attempted to explain the delay caused in commissioning of the power projects but the Respondent – NTPC maintained that the petitioner is liable to pay liquidated damages for the delay in commencing of power supply. Finally, the performance bank guarantees submitted by petitioner to the NTPC were encashed by th NTPC on 28 September, 2018. 6. In these circumstances, the petitioner had approached the Commission by way of Petition No. 203/MP/2019 with following prayers :- “a) Declare that the delay in the commencement of supply from the 2x70MW solar power projects being developed by the Petitioner in Plot No. 8 and 10, Bhadla Solar Park Phase-II, Rajasthan, was caused due to unforeseen, --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 5 of 39 unavoidable and uncontrollable reasons not attributable to the Petitioner and waive any liabilities or any consequences under the PPAs owing to the said delay; b) Extend the Scheduled Commissioning Date of the 2x70 MW projects, being developed by the Petitioner in Plot No. 8 and 10, Bhadla Solar Park Phase-II, till the date of actual commissioning; c) Declare that NTPC is not entitled to recover any monies towards liquidated damages or otherwise from the Petitioner; d) Direct NTPC to immediately refund the amount of Rs. 7.06 crore wrongfully and illegally collected by it purportedly as liquidated damages, along with carrying costs at 14% per annum on the said amount, from 25.09.2018 i.e. the date on which the said amount was collected from the Petitioner till the date of refund; --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 6 of 39 e) Direct NTPC to reimburse the legal and administrative costs incurred by the Petitioner in pursuing the instant Petition; and f) Pass such other orders that this Commission deems fit in the interest of justice.” 7. On the basis of the submissions of the parties, the Commission framed following two issues for adjudication :- “Issue No.1: Whether the delay in the commencement of supply from the 2x70 MW solar power projects being developed by the Petitioner was on account of reasons not attributable to the Petitioner? And if it is so, whether the Scheduled Commissioning Date of the 2x70 MW solar power projects being developed by the Petitioner should be extended? Issue No.2: Whether NTPC is entitled to recover any monies towards liquidated damages or otherwise from the Petitioner?” --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 7 of 39 8. Both the issues were decided by the Commission against the th petitioner vide order dated 4 August, 2021. The Commission has rejected the prayer of the petitioner for extension of SCOD of the power projects and also held NTPC entitled to recover damages for st th the period from 1 June, 2017 to 10 June, 2017 (10 days) th th corresponding to 40 MW, from the period 11 June, 2017 to 20 July, st 2017 (50 days) corresponding to 20 MW and for the period 1 June, th 2017 to 10 August, 2017 (71 days) corresponding to 30 MW as per the provisions of the PPA. 9. Feeling aggrieved by the said order of the Commission, the petitioner approached this Tribunal by way of Appeal No. 126 of 2022 with the following prayers :- “ “(a) Allow the present appeal as prayed herein below in terms of the submissions made hereinabove, especially the grounds pleaded and arguments made during the course of hearing before this Hon'ble Tribunal; (b) Issue appropriate Direction(s) / Order(s) to allow the present appeal and set aside the Impugned Order dated 04.08.2021 in Petition No. 203/MP/2019 passed by the --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 8 of 39 Central Electricity Regulatory Commission to the extent the same is pleaded in the grounds mentioned at Para 9 above and / or (c) Issue appropriate Direction(s) / Order(s) to the NTPC Limited to immediately return Rs. 7.6 Crores appropriated against the Liquidated Damages illegally levied upon the Appellant along with interest of 14% per annum on the said amount, from 25.09.2018 i.e., the date on which the said amount was collected from the Appellant till the date of refund and/or (d) Issue appropriate Direction(s) / Order(s) to NTPC Limited to reimburse the legal and administrative costs incurred by the Appellant in pursuing the present litigation till date and/or (e) Issue appropriate Direction(s) / Order(s) to Respondents to make good the loss/damages suffered by the Appellant herein on account of generation loss as a direct consequence to non-availability of the adequate --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 9 of 39 transmission system to allow 100 percent evacuation of the contracted capacity from the Project; and/or (f) Issue appropriate Direction(s) / Order(s) as may deem fit by this Hon'ble Tribunal in the interest of the present case and circumstances” 10. The said appeal has been disposed of by this Tribunal vide th judgement under review dated 10 February, 2025. The findings arrived at by this Tribunal and the consequential directions issued thereupon have been summed up in paragraph Nos. 40 to 42 of the judgement which are extracted hereinbelow:- “40. The facts and circumstances of the case, as discussed herein above, clearly reveal that delay in supply of power by Appellant to NTPC beyond the Scheduled Commercial Operation Date cannot be attributed to the Appellant but has occasioned on account of inability on the part of 5th Respondent-RRVPNL (STU in the State of Rajasthan) to make available the evacuation transmission system for the Appellant's power --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 10 of 39 project on or before the SCOD. We are of the firm opinion that when the delay on the part of the solar power developer to supply power is to mainly due to external factors i.e. either in the absence of or delay in establishment of evacuation transmission system, it would not be justified to hold the power developer liable for liquidated damages. In this regard, our views are fortified by previous judgement of this Tribunal in Appeal No. 67 of 2021 entitled Solitaire BTN Solar Pvt. Ltd. Vs. Tamil Nadu Electricity Regulatory Commission & Ors. decided on 5th July, 2021. 41. In the light of the above discussion, we find that the Central Commission has erred in refusing to extend the SCOD of the Appellant's power projects and in holding the Appellant liable to pay liquidated damages to NTPC for delay in supply of power. 42. Accordingly, we are unable to sustain the impugned order of the Commission. The same is hereby set aside. The appeal stands allowed. Hence, the SCOD of the --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 11 of 39 Appellant's power project stands extended till 11th August, 2017 as sought by the Appellant. Further, we hold the Appellant not liable to pay any liquidated damages to NTPC and, therefore, the NTPC shall refund to the Appellant within one month the entire amount, if any, received from the Appellant on account of liquidated damages." 11. The contention of the Review Petitioner is that inadvertently this Tribunal has not returned any findings upon following two aspects :- (a) The carrying cost / interest on the amount to be refunded by NTPC to the Review Petitioner. On 25.09.2018, the Review Petitioner under protest, deposited the amount of INR 7.6 Crores in favour of NTPC for the claim raised upon the Review Petitioner on account of Liquidated Damages. Such amount has been wrongly and without any legal backing was appropriated by NTPC. Therefore, the Review Petitioner is entitled to receive the said amount of INR 7.6 Crores, along with interest. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 12 of 39 (b) The Review Petitioner suffered the generation loss of INR 16 Crores as a direct consequence of the non- availability of the evacuation transmission system. Therefore, the Review Petitioner prayed for seeking damages suffered by it, to such extent on account of inaction by the Respondent(s). 12. We have heard Learned Counsel for the Review Petitioner as nd well as Learned Counsel for the 2 Respondent – NTPC. We have also gone through the material on record as well as written submissions filed by the Learned Counsels. 13. At the outset, we may note that Section 114 of CPC is the substantive provision dealing with scope of review and is quoted below: “114. Review.—Subject as aforesaid, any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 13 of 39 (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 14. The grounds on which review of a judgment / order can be sought, have been specified in Order XLVII of the CPC which are reproduced hereinbelow: - “1. Application for review of judgment.—(1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 14 of 39 allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 15 of 39 such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review. Explanation.—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” (Emphasis supplied) 15. A bare reading of these relevant legal provisions would make it clear that an application for review of a judgment / order is maintainable upon (i) discovery of a new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the review applicant or could not be produced by him when the judgment / order was passed; or (ii) on account of some --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 16 of 39 mistake or error apparent on the face of record; or (iii) for any other sufficient reason. 16. The expression “error apparent on the face of record” used in Order XLVII Rule 1 indicates an error which is self-evident and staring in the eye. Any error or mistake which is not self-evident and has to be deducted from a process of reasoning cannot be said to be an error apparent on the face of record justifying exercise of power of review. Power of review can be exercised only where a glaring omission or a patent mistake is found in the order under review. We may also note that the power of review can be exercised only for correction of a patent mistake but not to substitute a view for the reason that a review petition cannot be permitted to be an appeal in disguise. 17. In Chhajju Ram v. Neki Ram AIR 1922 PC 112, it was held that the words “any other sufficient reason” appearing in Order XLVII Rule 1 CPC must mean “a reason sufficient on grounds at least analogous to those specified in the rule”. This interpretation was approved by the Supreme Court in later judgment in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasium 1955 --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 17 of 39 1 SCR 520. In K amlesh Verma v. Mayawati & Ors. (2013) 8 SCC 320, Hon’ble Supreme Court has succinctly summarized the principles for exercising review jurisdiction as under:- “20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the stature: 20.1 When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 18 of 39 to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur manganese & Iron Ores Ltd. 20.2 When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 19 of 39 (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” 18. We also find advantageous to quote here following Paragraphs of the judgment of the Hon’ble Supreme Court in S. Madhusudhan Reddy v. V. Narayana Reddy & Ors . (2022) SCC OnLine SC 1034:- --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 20 of 39 “31. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court’s jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 21 of 39 knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as “for any other sufficient reason”. The said phrase has been explained to mean “a reason sufficient on grounds, at least analogous to those specified in the rule” (Refer: Chajju Ram v. Neki Ram and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius).” --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 22 of 39 19. In the instant case, in so far as the claim of the Review Petitioner with regards to the generation loss in the sum of Rs.16 crores is concerned, it is fairly conceded on behalf of the Review Petitioner that this claim was neither agitated before this Tribunal during the hearing of the appeal nor were any arguments advanced by the Learned Senior Counsel appearing on behalf of the Appellant. We have again perused the written submissions filed on behalf of the Review Petitioner subsequent to the conclusion of hearing in the appeal. No where in these written submissions has the Review Petitioner raised or agitated its claim for generation loss. Para 4.24, which is the last paragraph of the written submissions, sums up the claims/contentions of the petitioner which were agitated before this Tribunal during the hearing of this appeal and the same is extracted hereinbelow:- “4.24. Therefore, it is humbly submitted that given the circumstances, NTPC is not entitled to levy liquidated damages on the Appellant, as the delay in commencing power supply was due to factors beyond the Appellant’s control, specifically the unavailability of the necessary --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 23 of 39 evacuation structure. It is pertinent to point out the fact that the Appellant was ready to generate power but was impeded solely by the lack of evacuation infrastructure, nullifies any grounds for NTPC to impose liquidated damages. It is a settled principle that legally and contractually, liquidated damages are typically imposed when delays are attributable to the party in breach; in this case, the delay arose from infrastructural inadequacies outside the Appellant’s domain. Consequently, NTPC’s demand for liquidated damages is unwarranted, as the Appellant’s inability to supply power did not stem from their own actions or inactions. 20. It is, therefore, apparent that the Review Petitioner had confined its claim and submissions only with regards to the liquidated damages which had been levied upon it by NTPC Ltd. on account of non-supply of power from its power project w.e.f. SCOD of the power project. No other claim or contention was raised before this Tribunal on behalf of the Review Petitioner. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 24 of 39 21. It is argued by the Learned Counsel for the Review Petitioner that claim for generation loss arises on account of the judicially developed and settled regulated principle of “defaulter’s liability” according to which the entity on whose accounts/default the asset (generation stations or transmission line) could not be put to use is to be held liable to compensate the party who has suffered due to such default. It is argued that this is not a contractual claim arising on account of statutorily responsibility to plan, coordinate and develop the transmission corridor necessary for evacuation of power. It is pointed out by the Learned Counsels that this Tribunal has recorded th adverse findings in this regard against 5 Respondent – RRVPNL in paragraph No. 36, 38 & 39, 40 & 41 of the judgement under review and, therefore, RRVPNL can not be allowed to go scot free without bearing the consequences of its default. According to the Learned Counsel, since this Tribunal has not discussed and analyzed the principal of “Defaulters Liability” even after holding RRVPNL in default, it constituted the error apparent on the fact of record, and, th therefore, a strong case for review of the judgement dated 10 February, 2025 has been made out. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 25 of 39 22. The arguments/submissions raised on behalf of the Review nd Petitioner have strongly been refuted on behalf of the 2 Respondent - NTPC. 23. We are unable to understand as to how the omission on behalf of the Review Petitioner to agitate one of its claims during course of the arguments of the appeal would fall within the limits of power of review under Section 114 or Order 47 of the Code of Civil Procedure 1908. In case the Review Petitioner was having any claim against the Respondent-NTPC, it was the duty of its counsel to bring the same to the notice of this Tribunal and advance submissions on the same at the time of hearing of the appeal. Only then, this Tribunal would have considered the said claim and rendered its findings thereon. Once a party to a litigation does not point out to the court, during hearing, any of its claims and does not argue what it has pleaded, in that case, the party cannot be permitted to take refuge under the limited power of review under Section 114 or order 47 of CPC and to agitate that claim after the passing of the final judgement. We are of the considered opinion that failure on the part of the party’s counsel to bring to the notice of the court any claim of that party and to argue the same, is --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 26 of 39 not a ground for review. On this aspect, we find it relevant to rely upon the judgement of High Court of Bombay in Priyanka Communications (India) Pvt. Ltd. and others Vs. Tata Capital Financial Services Ltd., 2021 SCC online BOM 1595. The relevant portion of the judgement is extracted hereinbelow :- “18. A more fundamental point is this. The entire Review Petition does not explain nor does Mr. Krishnan show how this Petition falls within the narrow limits of Section 114 or Order 47 of the Code of Civil Procedure, 1908. It more or less assumes that a party's right to seek a review of a final order after arguments is, if not quite a fundamental right, something very close to it. The submission seems to be that anyone can file a Review Petition on any ground whatsoever even if it is not pleaded or argued. It is perfectly all right, the suggestion continues, to assail an order in appeal or in review on grounds never taken or submitted. A mere change of advocates is enough. Their latter -day epiphany on all matters - of fact and law both - is enough ground for a review. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 27 of 39 19. More disturbing is the implicit suggestion that Counsel's arguments are almost entirely worthless; and, by necessary extension, that Counsel are entirely redundant. If the attorney has filed something on record, Counsel must argue it, no matter how trifling or irrelevant. Further, it is then the job of the Court to engage in some sort of forensic archaeological excavation of these often mountainous records, and go through them document by document and page by page, to ferret out some sort of case in favour of a Review Petitioner, even if counsel have never argued every single line of what is pleaded. Whether or not Mr. Krishnan agrees with my interpretation of his arguments and the implication for Counsel is totally irrelevant. For that is indeed the implication of the submission he makes when he says that my order does not take into account some written submissions tucked away at the back of a large file and to which my attention was never drawn and on which Counsel then appearing made no submissions at all. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 28 of 39 20. We have Counsel for a reason. We expect of them certain skills. Foremost among these is their ability to sanguinely render assistance to the Court. This purpose is fundamental. It is not achieved by saying that Counsel's arguments are irrelevant. It is not achieved by saying that counsel overlooked or were not properly briefed or that counsel ought to have but did not take some point. Counsel often realize, as well they should, that not all arguments taken in affidavits or even in written submissions are worth pursuing. They confine their arguments to a few points. They know that the rest do not matter and will not convince. If Counsel has not urged a point, the fact that there were written submissions is immaterial if those written submissions were never in fact argued. 21. Counsel's failure to argue written submissions is not a ground of review or, I dare say, even appeal. It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 29 of 39 have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight.” 24. It is evident in this case that the Learned Counsel appearing for the Review Petitioner had confined their arguments to the aspect of levy of liquidated damages alone probably on the belief that the other claims of the Review Petitioner did not matter much. Learned Counsel intentionally did not press the claim of Review Petitioner for generation loss and thus cannot be permitted to agitate the same now by way of the Review Petition. Review jurisdiction of the court cannot be invoked merely for the reason that the counsel of the party finds, after the passing of the final judgement, that certain claims ought to have been agitated but were not. None of the judgements cited on behalf of the petitioner envisages that where a party’s counsel does not agitate and argue a part of the party’s claim, same can be done later on after passing of the final judgement, by way of review proceedings. It has been consistently held by the Hon’ble Supreme --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 30 of 39 Court that power of review remains confined to circumstances where some mistake or misconception has actually permeated in the judgement. The omission on the part of the Review Petitioner to agitate and argue one of its claims at the time of hearing of the instant appeal does not constitute error apparent in the face of judgement and, therefore, the Review Petition is not maintainable on this aspect. 25. Now coming to another issue raised in the Review Petition i.e. entitlement of the Review Petitioner to carrying cost on the amount of nd liquidated damages which are directed to be refunded by 2 Respondent – NTPC. 26. We may note that payment of “interest” cannot be equated to payment of penalty or fine. “Interest” is normal accretion to money when invested lawfully by the person in whose hands it is. When a person is deprived of the use his money to which he is lawfully entitled, he would have a legitimate claim for interest upon such amount of money for the period during which he was deprived of its use. In other words, any person who has enriched himself by use of the money belonging to some other person, is legally duty bound to compensate the latter by payment of interest on the said money, --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 31 of 39 from the use of which he had been deprived. Payment of interest is a necessary corollary to the return on money retained by a person unjustly or unlawfully. This has been explained by the Supreme Court succinctly in Alok Shanker Pandey v. Union of India & Ors. (2007) 3 SCC 545 by way of the following illustrations:- “For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B. With these observations the impugned judgment is modified and the appeal is disposed of accordingly.” --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 32 of 39 27. In the instant case, we are of the opinion that since we have held in the judgment dated 10.02.2025 that imposition of liquidated damages upon the petitioner was unjust and untenable in the facts and circumstances of the case, it is evident that the petitioner was deprived of the use of the sum of Rs.7.6 crores which he had to pay to the respondent - NTPC as liquidated damages. The NTPC, on its part, got unjustly enriched by the said amount to which it was not entitled at all and also must have earned further on the said amount by investing it wisely as per financial advice so received. Therefore, the NTPC cannot escape the liability of payment of interest upon the said sum of Rs.7.6 crores which is recoverable from it by the petitioner as per the judgment dated 10.02.2025. 28. The petitioner had made any specific prayer for grant of interest on the said amount in the petition before the Commission as well as before this Tribunal in the Appeal. It appears that due to inadvertence, the said aspect related to the interest/carrying cost remained to be discussed and decided in the judgement under review. This manifestly constitutes an error apparent on the face of --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 33 of 39 th judgement dated 10 February, 2025 which deserves to be rectified in view of these proceedings. 29. The Supreme Court, in latest judgment dated 27.08.2024 in Bangalore Electricity Supply Company Limited v. Hirehalli Solar Power Project LLP & Ors.Civil Appeal nos.7608 of 2021 and 6386 of 2021 has directed payment of Late Payment Surcharge (which is analogous to interest) even though the same had not been pleaded by the claimants in that case. The relevant portion of the judgment is quoted hereinbelow:- “14. Lastly, we also reject the appellant’s contention that the APTEL’s direction to pay late payment surcharge to the respondents is unjustified since the same was not pleaded. As we have already held, the APTEL rightly restored the tariff of Rs. 8.4 per unit and directed the appellant to pay the difference amount. The direction to pay the late payment surcharge on this amount is explicitly rooted in the PPA, and hence, is in furtherance of --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 34 of 39 the intention of the parties. There is no reason to set aside the same.” (Emphasis supplied) 30. In this context, we also find the following observations of the Hon’ble Supreme Court in a recent judgment dated 18.02.2025 in Dr. Purnima Advani and Anr. v. Government of NCT and Anr. Civil Appeal No.2643 of 2025, very material:- “25. If on facts of a case, the doctrine of restitution is attracted, interest should follow. Restitution in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order what has been lost to him in execution of decree or order of the Court or in direct consequence of a decree or order. The term “restitution” is used in three senses, firstly, return or restoration of some specific thing to its rightful owner or status, secondly, the compensation for benefits derived from wrong done to another and, thirdly, compensation or reparation for the loss caused to another. 26. In Hari Chand v. State of U.P., 2012 (1) --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 35 of 39 AWC 316, the Allahabad High Court dealing with similar controversy in a stamp matter held that the payment of interest is a necessary corollary to the retention of the money to be returned under order of the appellate or revisional authority. The High Court directed the State to pay interest @ 8% for the period, the money was so retained i.e. from the date of deposit till the date of actual repayment/refund. 27. In the case of O.N.G.C. Ltd. v. Commissioner of Customs Mumbai, JT 2007 (10) SC 76, (para 6), the facts were that the assessment orders passed in the Customs Act creating huge demands were ultimately set aside by this Court. However, during pendency of appeals, a sum of Rs.54,72,87,536/- was realized by way of custom duties and interest thereon. In such circumstances, an application was filed before this Court to direct the respondent to pay interest on the aforesaid amount w.e.f. the date of recovery till the date of payment. The appellants relied upon the judgment in the case of South Eastern Coal Field Ltd. v. State of M.P., (2003) 8 SCC 648. This Court explained the principles of restitution in the case of O.N.G.C. Ltd. (supra) as under:- --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 36 of 39 “Appellant is a public sector undertaking. Respondent is the Central Government. We agree that in principle as also in equity the appellant is entitled to interest on the amount deposited on application of principle of restitution. In the facts and circumstances of this case and particularly having regard to the fact that the amount paid by the appellant has already been refunded, we direct that the amount deposited by the appellant shall carry interest at the rate of 6% per annum. Reference in this connection may be made to Pure Helium Indian (P) Ltd. v. Oil & Natural Gas Commission, JT 2003 (Suppl. 2) SC 596 and Mcdermott International Inc. v. Burn Standard Co. Ltd. JT 2006 (11) SC 376.” 31. Thus, where there is an order for restitution by way of return or restoration of some specific money or thing to its rightful owner, the direction to pay interest must follow. It is noteworthy that in the case of O.N.G.C. Ltd. v. Commissioner of Customs Mumbai, JT 2007 (10) SC 76 (referred by the Supreme Court in the above noted judgment), the application for payment of interest was filed for the first time before the Supreme Court during the pendency of the appeal, which was entertained and allowed by the Supreme Court. --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 37 of 39 32. Therefore, we are of the considered opinion that the Review Petitioner/Appellant is entitled to carrying cost on the sum of Rs.7.6 nd crores which is to be refunded by 2 Respondent – NTPC to it in th terms of the judgement dated 10 February, 2025. The carrying cost shall be payable by NTPC on said amount from the date when it encashed the Bank Guarantees of the Appellant till the date it makes the entire payment to the Appellant. The rate of carrying cost shall be as the State Bank of India Prime Lending Rate (SBI PLR) prevailing during the relevant period. 33. Accordingly, we hereby direct that para 42 of the judgement th dated 10 February, 2025 shall now be read as under:- “42. Accordingly, we are unable to sustain the impugned order of the Commission. The same is hereby set aside. The appeal stands allowed. Hence, the SCOD of the th Appellant’s power project stands extended till 11 August, 2017 as sought by the Appellant. Further, we hold the Appellant not liable to pay any liquidated damages to NTPC and, therefore, the NTPC shall refund to the Appellant within one month the entire amount, if any, --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 38 of 39 received from the Appellant on account of liquidated damages. The Appellant shall be entitled to carrying cost on the said amount at SBI PLR from the date when the Bank Guarantees of the Appellant were encashed by the NTPC till the date the entire amount is paid to the Appellant.” 34. The Review Petition, thus, stands partly allowed in above terms. th Pronounced in the open court on this 6 day of April, 2026. (Virender Bhat) (Seema Gupta) Judicial Member Officiating Chairperson ✓ REPORTABLE / NON REPORTABLE js --------------------------------------------------------------------------------------------------------- R.P. No. 5 of 2025 Page 39 of 39 </div>