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JSA secures a major win for Adani Power as Supreme Court settles the law on ‘rate’ and ‘effective date’ of Carrying Cost

JSA successfully defended Adani Power Limited (“Adani”) before Supreme Court in getting a Civil Appeal filed by distribution licensees of Rajasthan dismissed. By way of the Judgment dated 23.05.2025, the Supreme Court has laid down the following position of law:

  1. Rate of Carrying Cost granted as part of restitution on account of Change in Law event –Carrying Cost shall be paid at the rate of Late Payment Surcharge provided under Power Purchase Agreement (“PPA”), on compounding basis.
  2. Effective date from which Carrying Cost will be paid– from the date the Change in Law occurs i.e., from the date of promulgation of the Change in Law.
  3. When a Supplementary Bill for Change in Law can be raised – It can be raised only after due adjudication by the competent forum.
  4. Parameters for entertaining Civil Appeal under Section 125 of Electricity Act, 2003 – When a finding is (1) perverse or (2) rendered contrary to the records, or without assigning any reason, and/or on a total misconception of the fact seen apparently on the face of the record.
  5. Principle of restitution incorporated into the PPAs, must be given effect to in letter and spirit on account of Change in Law.

The Civil Appeal arose out of a judgment dated 18.04.2024 passed by the Appellate Tribunal for Electricity (“APTEL”) wherein JSA had successfully represented Adani. Accepting all legal submissions by Adani, APTEL, in such judgment, held that the levy of Evacuation Facility Charges by Coal India qualifies as a Change in Law event, entitling Adani to Carrying Cost at the rate of Late Payment Surcharge, on compounding basis.

Supreme Court’s Judgment dated 23.05.2025 is a ‘landmark’ judgment, since it settles and puts to rest the contentious issues qua ‘Rate’ and ‘Effective Date’ of payment of Carrying Cost on account of Change in Law event. This Judgment applied the principle of restitution in letter and spirit, and clarified the contractual stipulation under the PPA regarding the stage of issuing a Supplementary Bill for Change in Law.

The matter was led by Amit Kapur and Poonam Verma Sengupta (Partners), with support from Saunak Kumar Rajguru (Principal Associate), Subham Bhut and Pradyumn Amit Sharma (Associates).

Supreme Court Stays Levy of Grid Support Charges on Captive Power Plants for FY 2025-26

JSA successfully represented Rain Cements Limited before the Supreme Court and secured an interim order dated May 22, 2025, staying the levy of Grid Support Charges on Captive Power Plants (CPPs) for the financial year 2025–26. This provides interim relief to CPPs in the state of Andhra Pradesh, which were burdened by the imposition of such charges.

By an order dated February 20, 2025, the Andhra Pradesh Electricity Regulatory Commission (APERC) had permitted the distribution licensees of Andhra Pradesh (AP Discoms) to levy Grid Support Charges on CPPs for FY 2025–26. This order was challenged before the Appellate Tribunal for Electricity (APTEL). However, by its judgment dated May 13, 2025, APTEL dismissed the appeal. A Civil Appeal was thereafter filed before the Supreme Court.

At the first hearing on May 22, 2025, the Supreme Court noted a prima facie illegality in the levy of Grid Support Charges on CPPs in Andhra Pradesh and accordingly directed that the levy be stayed, subject to the appellant depositing 50% of the claimed amount.

Notably, in earlier civil appeals filed by JSA on behalf of Sarda Metals & Alloys Ltd., the Supreme Court had also granted similar stay orders on October 21, 2024, and November 11, 2024, in relation to the levy of Grid Support Charges for the financial years 2022–23 and 2023–24.

This marks a paradigm shift in the Supreme Court’s approach to the issue of Grid Support Charges on CPPs. In previous cases involving similar levies by other states—such as Madhya Pradesh—the Supreme Court did not provide any interim relief.

Therefore, the interim order dated May 22, 2025, for the FY 2025–26 levy, along with the earlier orders dated October 21, 2024, and November 11, 2024, for FY 2022–23 and FY 2023–24 respectively, constitute a welcome, albeit temporary, relief for CPPs that were otherwise required to pay the entire amount of the charges. This development is also likely to assist other similarly placed CPPs across the sector.

Mr. P. Chidambaram, Senior Advocate, led the arguments, supported by Ms. Poonam Verma Sengupta (Lead Partner), Mr. Saunak Kumar Rajguru (Principal Associate), and Ms. Devisi Bhuwalka (Junior Associate) on behalf of Rain Cements.

The JSA disputes team comprised Lead Partner Poonam Verma Sengupta, Principal Associate Saunak Kumar Rajguru, and Junior Associate Devisi Bhuwalka.

 

JSA successfully represented the generator before APTEL, wherein relinquishment of Long-Term Access rights without any liability was allowed, due to Force Majeure events faced by the Generator

In a significant ruling, the Appellate Tribunal for Electricity (“APTEL”) in the case of M/s Brahmani Thermal Power Private Limited v. Central Electricity Regulatory Commission held that Brahmani Thermal Power Pvt. Ltd. (“BTPPL”) was entitled to relinquish its Long-Term Access (“LTA”) without any liability, due to force majeure events. By doing so, APTEL set aside Ld. Central Electricity Regulatory Commission’s (“Ld. CERC”) findings, by emphasizing that the delay in land acquisition by the concerned State Government was a Force Majeure event beyond BTPPL’s control. APTEL returned these findings after considering Regulation 18 of the Central Electricity Regulatory Commission (Grant of Connectivity, Long-term Access and Medium-term Open Access in inter-State Transmission and related matters), 2009. Brief facts 1.

The Appellant – BTPPL formerly known as Navbharat Power Private Limited, planned to establish a 1050 MW (2×525 MW) coal-based thermal power plant in Odisha. For this, it executed a Memorandum of Understanding (“MoU”) with State Government of Odisha on 09.06.2006. Under the MoU, the State Government through its instrumentality, Odisha Industrial Infrastructure Development Corporation (“IDCO”), was to acquire 1200 acres of land and hand it over free from encumbrances to BTPPL for setting up the power plant. BTPPL thereafter executed a Bulk Power Transmission Agreement (“BPTA”) with Power Grid Corporation of India Limited (“PGCIL”) for Long-Term Access (LTA) to the transmission network on 07.06.2010. 2. The land was identified and the acquisition process commenced. After certain payments by BTPPL, the Government of Odisha issued Section 4(1) notification under the Land Acquisition Act on 06.11.2007, which was followed by Section 6(1) notifications on 29.11.2008 and 11.12.2008. BTPPL obtained clearances from various authorities in relation to the identified land, some even before the BPTA was executed. 3. On 30.07.2009, the Collector, Dhenkanal informed that the Project area of 546.98 hectares fell within the Ayacut area of Rengali Right Canal System (“RRCS”), which required the matter to be settled with the Water Resources Department. Thereafter, the Water Resources Department inter alia requested BTPPL to revise its requirement of land or relocate the project. BTPPL expressed its inability to relocate. 4. Meanwhile, the MoU expired on 31.12.2011 and was not extended by the State Government. BTPPL had submitted a proposal reducing the share of Ayacut land and requested IDCO to initiate land acquisition process.

BTPPL had also requested PGCIL to postpone the commercial operation date of the plant. 5. It was only on 16.07.2012 that the Department of Water Resources gave its in-principal acceptance to establishment of the plant in the Ayacut area of RRCS. BTPPL then wrote to the State Government of Odisha to seek resumption of the land acquisition process. It also sought extension of the MoU, but in vain. 6. Finally, BTPPL issued Force Majeure notice on 25.06.2013 and sought relinquishment of the LTA and return of the bank guarantee submitted by it. PGCL advised BTPPL to approach Ld. CERC. Accordingly, BTPPL filed Petition No. 317/MP/2013 before Ld. CERC claiming Force Majeure under the BPTA and seeking return of the bank guarantee. 7. On 12.04.2017, Ld. CERC rejected BTPPL’s claim of Force Majeure, ruling that the project was abandoned for commercial reasons and that Force Majeure under the BPTA only provided temporary relief, not an exit from obligations. Ld. CERC further held that BTPPL must pay relinquishment charges as per Regulation 18 of the Connectivity Regulations, 2009 and it was not entitled to a refund of the ₹36 crore Bank Guarantee. Issues framed The issue as framed by APTEL was whether the BPTA was frustrated on account of the Force Majeure events faced by BTPPL. Findings of APTEL Re. Clause 9 of BPTA extends to permanent Force Majeure events 1. Clause 9 of the BPTA is not limited to only temporary Force Majeure events. The use of word “practicable” in the last sentence of Clause 9 merely indicates that the agreement may be continued after the Force Majeure event ceases to exist if the affected party finds it practical so to do. To say that Clause 9 applies only in case of “temporary failure to carry out the Terms of the Contract” would tantamount to adding words to the written agreement, which is impermissible. 2. APTEL in its earlier Judgment dated 19.05.2020 in Appeal No. 266 of 2016 titled PEL Power Limited v. CERC & Anr. regarding an identical clause had held the same. There is no stay on PEL Power Judgment. The PEL Power Judgment was followed in Judgment dated 14.05.2024 titled Himachal Sorang Power Pvt. Ltd. V. CERC & Ors. 2024 SCC OnLine APTEL 13.

The Appeal filed by CTUIL against the Himachal Sorang Judgment has been dismissed by Hon’ble Supreme Court on 27.08.2024. Re. Force Majeure events prevented BTPPL from setting up the plant 3. Ld. CERC’s finding that the project was abandoned due to commercial reasons is entirely unreasoned. Practice of writing unreasoned and cryptic orders needs to be deprecated sternly. Though Ld. CERC’s Order could be set aside on the ground of it containing no reasons, the Appeal was heard finally considering that it has been pending adjudication for more than 7 years. 4. The main reasons due to which the project could not be executed were (i) failure on the part of the State Government to acquire land for project before expiry of the notifications issued under Sections 4(1) & 6(1) of the Land Acquisition Act and (ii) failure on the part of the State Government to extend/renew the MoU beyond 31.12.2011. Both these factors were undoubtedly beyond the control of BTPPL and therefore, constitute Force Majeure events contemplated under Clause 9 of the BPTA. 5. When the MoU dated 09.06.2006 clearly made it an obligation upon the State Government to acquire the land required for the project through IDCO and place it at the disposal of BTPPL free from any encumbrances, there was no reason or occasion for BTPPL to initiate land acquisition process. It is the State Government which has failed to fulfil its obligations under the MoU for which BTPPL cannot be held responsible. 6. Regulation 8 of the Connectivity Regulations, 2009 is only applicable in cases of voluntary relinquishment, without being affected by Force Majeure events. 7. As on 25.06.2013, when BTPPL issued Force Majeure notice, there was no stranded spare capacity in the lines in question, since no work began on these lines. This also rules out applicability of Regulation 18, which presupposes stranded capacity on account of relinquishment. 8. Therefore, Ld. CERC’s Order is set aside, and the Appeal is allowed. CTUIL is directed to return BTPPL’s bank guarantee within 2 weeks. Conclusion APTEL’s Judgment rightly recognizes Force Majeure conditions faced by the generator which prevented operationalization of the LTA under BPTA. It also respects the Force Majeure clause in the BPTA by not resorting to a pedantic interpretation of the clause to hold that it covers permanent Force Majeure events also. Furthermore, it upholds the Force Majeure clause of the BPTA even in light of Regulation 18 of the Connectivity Regulations, 2009, by expressly holding that there was no stranded capacity in the present matter.

The Dispute team was led by Partner, Abhishek Munot with support from Of Counsel, Malcolm Desai, and Senior Associate, Samikrith Rao.

LX International Corp. in its sale of 35% stake in POSCO-India Pune Processing Center

JSA advised LX International Corp. in its sale of 35% stake in POSCO-India Pune Processing Center Private Limited (IPPC). LX International is a global trading company that provides a full suite of services across the entire value chain ranging from trading to business development, investment to financing, and raw material supply to logistics. POSCO Group is a global steel giant. IPPC is involved in processing and distributing value-added steel products, including hot-rolled coils, cold-rolled coils, galvanised steel, and specialty steel products.

Our Corporate team comprised of Lead Partner, Anand Lakra, Partner, Niharika Mepani and Senior Associate, Jinay Shah.

Our Taxation team comprised of Partner Kumarmangalam Vijay and Suraj Shettyand Associate, Tejasvi Shukla.

Our Competition team comprised of Partner, Vaibhav Choukse & Ela Bali and Principal Associate Nripi Jolly.