Restitution mandates awarding carrying costs on refunded liquidated damages despite inadvertent omission in the final judgment.

The Petitioner, a Special Purpose Vehicle (SPV), was awarded two 70 MW solar projects in Bhadla Solar Park, Rajasthan

Power Purchase Agreements (PPAs) were executed with NTPC (Respondent No. 2) with a Scheduled Commercial Operation Date (SCOD) of June 1, 2017

Due to delays in the transmission system provided by the State Transmission Utility (RRVPNL), commissioning was delayed until August 2017

Consequently, NTPC encashed the Petitioner’s Performance Bank Guarantees totaling INR 7.6 Crores as Liquidated Damages (LD) on September 25, 2018

The CERC initially rejected the Petitioner's plea for SCOD extension and LD waiver

In Appeal No. 126 of 2022, the Tribunal set aside the CERC order, extended the SCOD, and directed NTPC to refund the LD

The Petitioner subsequently filed this Review Petition seeking (i) carrying cost/interest on the refunded LD and (ii) compensation for generation loss of INR 16 Crores due to transmission non-availability

1. Whether the failure to adjudicate the claim for generation loss in the main appeal constitutes an "error apparent on the face of record" justifying a review under Order XLVII Rule 1 of the CPC.

2. Whether the Petitioner is entitled to carrying cost/interest on the liquidated damages amount ordered to be refunded by NTPC.

The Tribunal applied the narrow standards of review jurisdiction under Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure (CPC), which permit review only for discovery of new evidence, errors apparent on the face of record, or other sufficient analogous reasons

It relied on Kamlesh Verma v. Mayawati, which established that a review is not an "appeal in disguise" and cannot be used to argue points not raised in the original hearing

Regarding interest, the Tribunal applied the Doctrine of Restitution, noting that interest is a necessary corollary to the return of money unjustly retained, as established in Alok Shanker Pandey v. Union of India and Dr. Purnima Advani v. Govt. of NCT

Regarding the claim for generation loss, the Tribunal observed that the Petitioner failed to agitate this point during oral arguments or in written submissions in the main appeal

Citing Priyanka Communications v. Tata Capital, the Tribunal held that a counsel’s failure to argue a pleaded point is not a ground for review; a party cannot seek "forensic archaeological excavation" of the record to revive abandoned claims

Regarding carrying cost, the Tribunal found an "error apparent" in its previous judgment, as it had inadvertently omitted the interest aspect despite holding the levy of LD to be "unjust and untenable"

Since NTPC was "unjustly enriched" by encashing the bank guarantees in 2018, the principle of restitution required the Petitioner to be compensated for the time-value of money

The Tribunal noted that even if not specifically pleaded, interest/carrying cost can be granted in furtherance of the intention of the parties and equity

The Tribunal dismissed the claim for generation loss as it was not argued in the main appeal

However, it modified Paragraph 42 of the original judgment to hold that the Petitioner is entitled to carrying cost at the State Bank of India Prime Lending Rate (SBI PLR) on the INR 7.6 Crores

NTPC was directed to pay this carrying cost from the date the Bank Guarantees were encashed until the date of actual refund