MSEDCL denied liberty to withdraw ₹568-crore power dispute appeal and seek review after pursuing relief before APTEL and Supreme Court

Maharashtra State Electricity Distribution Company Limited (“MSEDCL”) filed an appeal under Section 111 of the Electricity Act, 2003 against the Maharashtra Electricity Regulatory Commission’s common order dated 24 December 2025 in Case Nos. 233/2024 and 218/2025.

MSEDCL had challenged invoices raised by JSW Energy Limited under the Power Purchase Agreement dated 23 February 2010, while JSW sought enforcement of the PPA.

The Commission dismissed MSEDCL’s petition and directed it to pay approximately ₹568 crores towards differential energy charges, ₹31.17 crores towards fixed charges, and late payment surcharge.

The dispute concerned the applicability of directions issued by the Ministry of Power under Section 11 of the Electricity Act, 2003, to JSW’s Ratnagiri generating unit.

MSEDCL also sought interim relief before the Tribunal. After its interim application was initially dismissed, the Supreme Court directed the Tribunal to rehear it and, as an interim measure, directed MSEDCL to pay ₹250 crores to JSW.

During the rehearing, MSEDCL sought withdrawal of the appeal with liberty to file a review petition before the Commission and thereafter to approach the Tribunal again, subject to the outcome of the review.

JSW opposed the grant of such liberty, contending that the Commission’s order had created substantive rights in its favour and that MSEDCL was attempting forum shopping.

Whether MSEDCL could withdraw the statutory appeal as a matter of right.

Whether MSEDCL should be granted liberty to institute review proceedings before the Commission against the impugned order after having substantially pursued the appeal and interim proceedings before the Tribunal and the Supreme Court.

Whether the Commission’s submission that its own order required reconsideration justified setting aside or remanding the order without adjudication on the merits.

The Tribunal applied Section 120 of the Electricity Act, 2003, under which it is guided by the principles of the Code of Civil Procedure and possesses specified powers of a civil court.

Since Order XLI CPC contains no specific provision governing withdrawal of appeals, the Tribunal applied the principles underlying Order XXIII Rule 1 CPC.

An appellant may withdraw an appeal without restraint, but liberty to institute fresh proceedings is not automatic and may be granted only where the matter suffers from a formal defect or sufficient grounds justify a fresh proceeding.

The Tribunal also considered the review framework under Section 114 and Order XLVII Rule 1 CPC, observing that review requires an error apparent on the face of the record and cannot be used as a substitute for an appeal.

It relied particularly on Rakesh Bhatia v. Pramod Sharma, 2009 (112) DRJ 143, which supports refusal of liberty to seek review where the appellant has already pursued the appeal and consumed judicial time.

The Tribunal also referred to Airports Economic Regulatory Authority of India v. Delhi International Airport Ltd., 2024 (15) SCC 345, and Opto Circuit India Ltd. v. Axis Bank, 2021 (6) SCC 707, in relation to the concerns regarding adjudicatory neutrality and an adjudicator’s attempt to take a position contrary to its own order.

The Tribunal held that MSEDCL was free to withdraw its appeal because an appellant controls whether it wishes to prosecute its appeal.

However, withdrawal with liberty to commence review proceedings required satisfaction of the conditions analogous to Order XXIII Rule 1(3) CPC.

MSEDCL did not contend that the appeal suffered from any formal defect; instead, it argued that the Commission’s order was jurisdictionally and legally erroneous.

Such grounds were appropriate for determination in the pending statutory appeal, not for returning to the Commission for review.

The Tribunal further found that neither MSEDCL nor the Commission identified any specific error apparent on the face of the record warranting review.

MSEDCL had vigorously prosecuted the appeal, sought interim relief before the Tribunal, challenged the refusal of interim relief before the Supreme Court, and sought withdrawal only after extensive arguments had been heard.

This conduct suggested an attempt to obtain a “second bite at the cherry” and amounted to forum shopping rather than a legally sufficient ground for granting liberty.

The Tribunal also considered prejudice to JSW, whose rights had arisen under the Commission’s order, which had allegedly been partly complied with, and under the Supreme Court’s interim direction requiring payment of ₹250 crores.

Finally, the Tribunal declined to remand the matter merely because the Solicitor General stated that, in the Commission’s view, the order might not withstand appellate scrutiny.

No specific legal infirmity in the Commission’s order was demonstrated, and an adjudicatory body could not secure remand of its own order merely on an oral assertion that it was erroneous.

However, it declined to grant liberty to MSEDCL to file a review petition before the Commission or to approach the Tribunal again, holding that no formal defect, sufficient cause, or error apparent on the face of the record had been established and that granting such liberty would facilitate forum shopping and prejudice JSW.

The appeal was accordingly dismissed as withdrawn, and all pending applications were disposed of.