UTTAR HARYANA BIJLI VITRAN NIGAM LTD [UHBVNL]. & ANRversusADANI POWER LTD. & ORS.

                       [2019] 4 S.C.R. 487                             487


        UTTAR HARYANA BIJLI VITRAN NIGAM LTD.                          A
                  [UHBVNL] & ANR.
                                 v.
                 ADANI POWER LTD. & ORS.
                  (Civil Appeal No. 5865 of 2018)                      B
                       FEBRUARY 25, 2019
          [R. F. NARIMAN AND NAVIN SINHA, JJ.]
       Electricity – Power Purchase Agreements(PPAs) – Adjustment
in monthly tariff payment on account of change in law – Appellants
                                                                       C
in C.A. No.5865 of 2018 are distribution licensees in the State of
Haryana – Appellant in C.A. No. 6190 of 2018 is the Gujarat Urja
Vikas Nigam Ltd. (GUVNL), assigned with the task of procuring
power by the State of Gujarat – Respondent, a generating company
has a 4620 MW coal-fired power plant at Mundra, District Kutch,
Gujarat – On 23.06.2005 SEZ Act was enacted – U/s.26, SEZ Act          D
every Developer shall be entitled to various exemptions, such as
duty leviable u/Customs Act, Customs Tariff Act etc.– Respondent
approved as Co-Developer (which is included within the term
“Developer”) – Appellant established a power plant in the aforesaid
SEZ – Respondent entered into various PPAs inter alia dtd 07.08.2008
                                                                       E
and 02.02.2007, with the appellant – Ministry of Commerce &
Industry (MoC&I) vide notification dtd. 06.04.2015 withdrew the
exemption of all duties under the Customs Act, Customs Tariff Act
etc. on goods imported/procured by the respondent – Vide
notification dtd.16.02.2016 exemption from service tax, to which
the respondent was entitled, also withdrawn – Respondent filed         F
petition before the Central Electricity Regulatory Commission
(CERC) seeking compensation for change in law by invoking Art.13
of the respective PPAs – Allowed, however held that respondent’s
prayer to grant carrying cost on restitutionary principles from the
date of change in law till the date of decision cannot be allowed –
                                                                       G
Judgment set aside by Appellate Tribunal – On appeal, held:
Art.13.4.1 makes it clear that adjustment in monthly tariff payment
on account of change in law shall be effected from the date of the
change in law [sub-clause (i) of clause 4.1], in case the change in
law happens to be by way of adoption, promulgation, amendment,
                                                                       H
                                487
488            SUPREME COURT REPORTS                       [2019] 4 S.C.R.


A     re-enactment or repeal of the law or change in law– Art.13.4.1 is
      subject to Art.13.2 of the PPAs –Art.13.2 is an in-built restitutionary
      principle which compensates the party affected by such change in
      law – Art.13.2, however, goes on to divide such restitution into two
      separate periods – Restitutionary principles apply in case a certain
      threshold limit is crossed in both sub-clauses (a) and (b) –
B
      Indisputably, the present case is covered by sub-clause (b) and the
      aforesaid threshold has been crossed – Mechanism for claiming a
      change in law is then set out by Art.13.3 of the PPA – Sub-clause
      (c) does not occur in the PPA in C.A. No.5865 of 2018 – Present
      case is governed by sub-clause (i) of Art.13.4.1, it is obvious that
C     sub-clauses (b) and (c) have no application to the facts of the present
      case –A reading of Art.13 as a whole, therefore, leads to the position
      that subject to restitutionary principles contained in Art.13.2, the
      adjustment in monthly tariff payment, in the facts of the present
      case, has to be from the date of the withdrawal of exemption which
      was done by administrative orders dtd. 06.04.2015 and 16.02.2016
D
      – Present case, therefore, falls within Art.13.4.1(i) – Respondents
      entitled to adjustment in their monthly tariff payment from the date
      on which the exemption notifications became effective – No reason
      to interfere with the judgment of the Appellate Tribunal – Electricity
      Act, 2003 – s.2(18) – Special Economic Zones Act, 2005 – s.26 –
E     Customs Act, 1962 – Customs Tariff Act, 1975 – Central Excise Act,
      1944.
            Dismissing the appeals, the Court
             HELD: 1.1 Article 13.4.1 makes it clear that adjustment in
      monthly tariff payment on account of change in law shall be effected
F     from the date of the change in law [sub-clause (i) of clause 4.1], in
      case the change in law happens to be by way of adoption,
      promulgation, amendment, re-enactment or repeal of the law or
      change in law. As opposed to this, if the change in law is on
      account of a change in interpretation of law by a judgment of a
G     Court or Tribunal or governmental instrumentality, the case would
      fall under sub-clause (ii) of clause 4.1, in which case, the monthly
      tariff payment shall be effected from the date of the said order/
      judgment of the competent authority/Tribunal or the governmental
      instrumentality. Article 13.4.1 is subject to Article 13.2 of the
      PPAs. Article 13.2 is an in-built restitutionary principle which
H
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                         489
              ADANI POWER LTD.

compensates the party affected by such change in law and which            A
must restore, through monthly tariff payments, the affected party
to the same economic position as if such change in law has not
occurred. This would mean that by this clause a fiction is created,
and the party has to be put in the same economic position is if
such change in law has not occurred, i.e., the party must be given
                                                                          B
the benefit of restitution as understood in civil law. Article 13.2,
however, goes on to divide such restitution into two separate
periods. The first period is the “construction period” in which
increase/decrease of capital cost of the project in the tariff is to
be governed by a certain formula. However, the seller has to
provide to the procurer documentary proof of such increase/               C
decrease in capital cost for establishing the impact of such change
in law and in the case of dispute as to the same, a dispute
resolution mechanism as per Article 17 of the PPA is to be
resorted to. It is also made clear that compensation is only payable
to either party only with effect from the date on which the total
                                                                          D
increase/decrease exceeds the amount stated therein. So far as
the “operation period” is concerned, compensation for any
increase/decrease in revenues or costs to the seller is to be
determined and effected from such date as is decided by the
appropriate Commission. Here again, this compensation is only
payable for increase/decrease in revenue or cost to the seller if         E
it is in excess of an amount equivalent to 1% of the Letter of
Credit in aggregate for a contract year. From a reading of Article
13.2 it is clear that restitutionary principles apply in case a certain
threshold limit is crossed in both sub-clauses (a) and (b). There
is no dispute that the present case is covered by sub-clause (b)
                                                                          F
and that the aforesaid threshold has been crossed. The
mechanism for claiming a change in law is then set out by Article
13.3 of the PPA. [Paras 6, 7 and 8][498-C-H; 499-A-C]
      1.2 A reading of Article 13 as a whole, therefore, leads to
the position that subject to restitutionary principles contained in
Article 13.2, the adjustment in monthly tariff payment, in the facts      G
of the present case, has to be from the date of the withdrawal of
exemption which was done by administrative orders dated
06.04.2015 and 16.02.2016. The present case, therefore, falls
within Article 13.4.1(i). This being the case, it is clear that the
                                                                          H
490            SUPREME COURT REPORTS                     [2019] 4 S.C.R.


A     adjustment in monthly tariff payment has to be effected from the
      date on which the exemptions given were withdrawn. This being
      the case, monthly invoices to be raised by the seller after such
      change in tariff are to appropriately reflect the changed tariff. On
      the facts of the present case, it is clear that the respondents were
      entitled to adjustment in their monthly tariff payment from the
B
      date on which the exemption notifications became effective. This
      being the case, the restitutionary principle contained in Article
      13.2 would kick in for the simple reason that it is only after the
      order dated 04.05.2017 that the CERC held that the respondents
      were entitled to claim added costs on account of change in law
C     w.e.f. 01.04.2015. This being the case, it would be fallacious to
      say that the respondents would be claiming this restitutionary
      amount on some general principle of equity outside the PPA.
      Since it is clear that this amount of carrying cost is only relatable
      to Article 13 of the PPA, no reason to interfere with the judgment
      of the Appellate Tribunal. [Para 10][500-A-E]
D
            National Thermal Power Corporation Ltd. v. Madhya
            Pradesh State Electricity Board, (2011) 15 SCC 580 :
            [2011] 11 SCR 651; South Eastern Coalfields Ltd. v.
            State of Madhya Pradesh and Ors. (2003) 8 SCC 648 :
            [2003] 4 Suppl. SCR 651; Indian Council for Enviro-
E           Legal Action v. Union of India and Ors. (2011) 8 SCC
            161 : [2011] 9 SCR 146; All India Power Engineer
            Federation and Ors. v. Sasan Power Ltd. and Ors.
            (2017) 1 SCC 487 : [2016] 9 SCR 901 – held
            inapplicable.
F           Energy Watchdog v. Central Electricity Regulatory
            Commission and Ors. [2017] 3 SCR 153– referred to.
                             Case Law Reference
      [2003] 4 Suppl. SCR 651        held inapplicable       Para 11
G     [2011] 11 SCR 651              held inapplicable       Para 12
      [2011] 9 SCR 146               held inapplicable       Para 14
      [2016] 9 SCR 901               held inapplicable       Para 15
      [2017] 3 SCR 153               referred to             Para 16
H
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                            491
              ADANI POWER LTD.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5865                    A
of 2018
      From the Judgment and Order dated 13.04.2018 of the Appellate
Tribunal for Electricity at New Delhi in Appeal No. 210 of 2017
                                  With
                                                                             B
      Civil Appeal No. 6190 of 2018.
      V. Giri, Mukul Rohatgi, Vikram Nankani, P. S. Narsimha, Sr. Advs.,
G. Umapathy, Rakesh K. Sharma, Aditya Singh, Ms. Vashnavi, Ms.
Hemantika Wahi, Anand K. Ganesan, Ms. Jesal Wahi, Mahesh Agarwal,
Ms. Neeha Nagpal, Ms. Poonam Verma, Abiha Zaidi, Ms. Aparajita               C
Upadhyay, Ms. Devanshi Singh, Malav Deliwala, Ms. Aditi Pathak, Arshit
Anand, E. C. Agrawala, Nikunj Dayal, Pramod Dayal, Ms. Payal Dayal,
Advs. for the appearing parties.
      The Judgment of the Court was delivered by
        R. F. NARIMAN, J. 1. The appellants in Civil Appeal No. 5865         D
of 2018 are Uttar Haryana Bijli Vitran Nigam Ltd. and Dakshin Haryana
Bijli Vitran Nigam Ltd. [collectively referred to as the “Haryana
Discoms”], which are distribution licensees in the State of Haryana.
The appellant in Civil Appeal No. 6190 of 2018 is the Gujarat Urja Vikas
Nigam Ltd. [“GUVNL”], which has been assigned with the task of
                                                                             E
procuring power by the State of Gujarat. The respondent, Adani Power
Ltd., is a generating company in terms of Section 2(18) of the Electricity
Act, 2003 and has a 4620 MW coal-fired power plant at Mundra, District
Kutch, Gujarat. On 23.06.2005, the Special Economic Zones Act, 2005
[“SEZ Act”] was enacted. Section 26 of this Act provides that every
Developer shall be entitled to various exemptions, such as duty leviable     F
under the Customs Act, 1962, Customs Tariff Act, 1975, Central Excise
Act, 1944, etc. The Government of India approved the respondent as a
Co-Developer (which is included within the term “Developer”). The
Ministry of Commerce and Industry [“MoC&I”], by a letter dated
19.12.2006, granted approval to the appellant for setting up a power
                                                                             G
plant in the aforesaid SEZ. Thus, the appellant has established the
aforesaid power plant in four phases consisting of four units of 330 MW
in Phase I and II, two units of 660 MW in Phase III, and three units of
660 MW in Phase IV. The respondent has entered into various Power
Purchase Agreements [“PPAs”] with the appellant. We are concerned
                                                                             H
492            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     in the present case with the PPAs dated 07.08.2008 and 02.02.2007.
      The MoC&I, vide notification dated 06.04.2015 has withdrawn the
      exemption of all duties under the Customs Act, Customs Tariff Act,
      Central Excise Act, etc. on goods imported/procured by the respondent
      for authorized operations w.e.f. 01.04.2015. Equally, vide notification
      dated 16.02.2016, fiscal benefits including exemption of service tax on
B
      power plants approved prior to 27.02.2009 was promulgated, as a result
      of which, exemption from service tax, to which the respondent was
      entitled, has been withdrawn. On 15.10.2015, the respondent filed Petition
      No. 235/MP/2015 before the Central Electricity Regulatory Commission
      [“CERC” or “Commission”], seeking compensation for change in law
C     by invoking Article 13 of the respective PPAs. On 04.05.2017, the CERC
      allowed, as a change in law, the added cost by way of payment of tax
      consequent to withdrawal of the exemption notifications thus:
            “35. …… However, the change in rates of custom duty, excise
            duty, withholding tax and service tax on taxable services which
D           have been imposed pursuant to the Acts passed by the Parliament
            shall be covered under Change in Law. As regards the Green
            Energy Cess, it was imposed after the cut-off date and satisfied
            the requirements of Change in Law. Accordingly, the Petitioner
            shall therefore be entitled for reimbursement of custom duty, excise
            duty on import/procurement of any other goods and service tax
E           on the spares and consumables payable by it from 1.4.2015 on
            account of the withdrawal of exemption to the power plants located
            in the SEZ by the Ministry of Commercial [sic Commerce] and
            Industry only to the extent of difference in the duty or tax as on
            the cut-off date and as prevailing as on 1.4.2015 and thereafter.”
F     However, the CERC followed its earlier order dated 06.02.2017 in Petition
      No.156/MP/2014, in which it stated that “carrying cost” under Article
      13 of the PPA must be given to the respondent as it is to be restored to
      the same economic position as if the change in law – which is withdrawal
      of the exemption notifications – did not take place. After setting out
G     Article 13 of the PPA and distinguishing a Supreme Court judgment in
      National Thermal Power Corporation Ltd. v. Madhya Pradesh
      State Electricity Board, (2011) 15 SCC 580 [“National Thermal
      Power Corporation Ltd.”], the Commission came to the conclusion
      that there is no provision in the PPA for payment of carrying cost for the
      period from the date of the change in law till the date of approval by the
H
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                                493
       ADANI POWER LTD. [R. F. NARIMAN, J.]

Commission. This being the case, the Commission held that the prayer             A
of the respondent to grant carrying cost on restitutionary principles from
the date of change in law till the date of decision cannot be allowed. By
the impugned judgment of the Appellate Tribunal for Electricity
[“Appellate Tribunal”] dated 13.04.2018, the Appellate Tribunal went
through the relevant provisions of the PPAs and finally observed :
                                                                                 B
      “x. Further, the provisions of Article 13.2 i.e. restoring the Appellant
      to the same economic position as if Change in Law has not
      occurred is in consonance with the principle of ‘restitution’ i.e.
      restoration of some specific thing to its rightful status. Hence, in
      view of the provisions of the PPA, the principle of restitution and
      judgment of the Hon’ble Supreme Court in case of Indian Council            C
      for Enviro-Legal Action vs. Union of India & Ors., we are of
      the considered opinion that the Appellant is eligible for Carrying
      Cost arising out of approval of the Change in Law events from
      the effective date of Change in Law till the approval of the said
      event by appropriate authority. It is also observed that the Gujarat       D
      Bid-01 PPA have no provision for restoration to the same economic
      position as if Change in Law has not occurred. Accordingly, this
      decision of allowing Carrying Cost will not be applicable to the
      Gujarat Bid-01 PPA.”
Accordingly, carrying cost was allowed and the judgment of the                   E
Commission was set aside.
       2. Shri G. Umapathy, learned Advocate, and Shri V. Giri, learned
Senior Advocate, appearing for the appellants in these appeals have
argued before us that the judgment of the Commission was correct and
that since carrying costs are not part of the PPAs in question, any resort       F
to rules of equity and interest being granted on rules of equity cannot be
resorted to. For this purpose, they relied upon judgments of this Court.
According to them, therefore, the finding of the Appellate Tribunal ought
to be set aside.
       3. On the other hand, Mr. Mukul Rohatgi, learned Senior Advocate          G
appearing on behalf of the respondent, supported the Appellate Tribunal
judgment and stated that the Appellate Tribunal has not gone outside the
four corners of the PPA. Since Article 13.2, in particular, expressly
provides a restitutionary principle, the respondents are entitled to avail
of the same.
                                                                                 H
494             SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A             4. In order to appreciate the respective contentions of the parties,
      it is necessary to set out certain provisions of the PPAs. Thus, Articles
      11.3.1 and 11.3.4 state as follows:
            “11.3 Payment of Monthly Bills
            11.3.1 The Procurer shall pay the amount payable under Monthly
B           Bill on the Due Date to such account of the Seller, as shall have
            been previously notified by the Seller to the Procurer in accordance
            with Article 11.3.3 below.
            All payments made by the Procurer shall be appropriated by the
            Seller in the following order of priority:
C
                1. towards Late Payment Surcharge, payable by the Procurer,
                if any;
                2. towards earlier unpaid Monthly Bill, if any; and
                3. towards the then current Monthly Bill.”
D
            xxx xxx xxx
            “11.3.4. In the event of delay in payment of a Monthly Bill by any
            procurer beyond its Due Date, a Late Payment Surcharge shall
            be payable by the Procurer to the Seller at the rate of two (2)
            percent in excess of the applicable SBAR per annum, on the
E
            amount of outstanding payment, calculated on a day to day basis
            (and compounded with Monthly rest), for each day of the delay.”
      Articles 11.8.1 and 11.8.3 are also important and provide as follows:
            “11.8. Payment of Supplementary Bill
F           11.8.1 Either Party may raise a bill on the other Party
            (“Supplementary Bill”) for payment on account of:
                i. Adjustments required by the Regional Energy Account (if
                applicable);
                ii. Tariff Payment for change in parameters, pursuant to
G
                provisions in Schedule-5; or
                iii. Change in Law as provided in Article 13
            and such Bill shall be paid by the other Party.”
             xxx xxx xxx
H
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                                495
       ADANI POWER LTD. [R. F. NARIMAN, J.]

       “11.8.3 In the event of delay in payment of a Supplementary Bill          A
       by either Party beyond one month from the date of billing, a Late
       Payment Surcharge shall be payable at same terms applicable to
       the Monthly Bill in Article 11.3.4.”
Article 18.17 states as follows:
       “18.17 No Consequential or Indirect Losses                                B

       The liability of the Seller and the Procurer shall be limited to that
       explicitly provided in this Agreement. Provided that
       notwithstanding anything contained in this Agreement, under no
       event shall the Procurer or the Seller claim from one another any
       indirect or consequential losses or damages.”                             C

       5. Ultimately, the result of this appeal depends upon the
interpretation of Article 13 of the PPAs which is set out in full hereinbelow:
       “13. ARTICLE 13 – CHANGE IN LAW
       13.1 Definitions                                                          D
       In this Article 13, the following terms shall have the following
       meanings:
       13.1.1 “Change in Law” means the occurrence of any of the
       following events after the date, which is seven (7) days prior to
                                                                                 E
       the Bid Deadline:
          (i) the enactment, bringing into effect, adoption, promulgation,
          amendment, modification or repeal, of any Law or (ii) a change
          in interpretation of any Law by a Competent Court of law,
          tribunal or Indian Governmental Instrumentality provided such
          Court of law, tribunal or Indian Governmental Instrumentality          F
          is final authority under law for such interpretation or (iii) change
          in any consents, approvals or licenses available or obtained for
          the Project, otherwise than for default of the Seller, which
          results in any change in any cost of or revenue from the business
          of selling electricity by the Seller to the Procurer under the         G
          terms of this Agreement;
          but shall not include (i) any change in any withholding tax on
          income or dividends distributed to the shareholders of the Seller,
          or (ii) change in respect of UI Charges or frequency intervals
          by an Appropriate Commission.                                          H
496      SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A        Provided that if Government of India does not extend the income
         tax holiday for power generation projects under Section 80 IA
         of the Income Tax Act, upto the Scheduled Commercial
         Operation Date of the Power Station, such non-extension shall
         be deemed to be a Change in Law (applicable only in case the
         Seller envisaging supply from the Project awarded the status
B
         of “Mega Power Project” by Government of India).
      13.1.2 “Competent Court” means:
      The Supreme Court or any High Court, or any tribunal or any
      similar judicial or quasi-judicial body in India that has jurisdiction
C     to adjudicate upon issues relating to the Project.
      13.2 Application and Principles for computing impact of
      Change in Law
      While determining the consequence of Change in Law under this
      Article 13, the Parties shall have due regard to the principle that
D     the purpose of compensating the Party affected by such Change
      in Law, is to restore through Monthly Tariff Payments, to the
      extent contemplated in this Article 13, the affected Party to the
      same economic position as if such Change in Law has not occurred.
      a) Construction Period
E
      As a result of any Change in Law, the impact of increase/decrease
      of Capital Cost of the Project in the Tariff shall be governed by
      the formula given below:
      For every cumulative increase/decrease of each Rs.8,90,00,000
      [sic] (Rupees eight crore ninety lakh only) Rupees of the
F
      Contracted Capacity in the Capital Cost over the term of this
      Agreement, the increase/decrease in Quoted Capacity Charges
      shall be an amount equal to zero point two two seven (0.227%)
      per cent of the Quoted Capacity Charges. Provided that the Seller
      provides to the Procurer documentary proof of such increase/
G     decrease in Capital Cost for establishing the impact of such Change
      in Law. In case of Dispute, Article 17 shall apply.
      It is clarified that the above mentioned compensation shall be
      payable to either Party, only with effect from the date on which
      the total increase/decrease exceeds amount of Rs.8,90,00,000 [sic]
H     (Rupees eight crore ninety lakh only)
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                            497
       ADANI POWER LTD. [R. F. NARIMAN, J.]

    b) Operation Period                                                      A
    As a result of Change in Law, the compensation for any increase/
    decrease in revenues or cost to the Seller shall be determined and
    effective from such date, as decided by the Appropriate
    Commission whose decision shall be final and binding on both the
    Parties, subject to rights of appeal provided under applicable Law.      B
    Provided that the above mentioned compensation shall be payable
    only if and for increase/decrease in revenues or cost to the Seller
    is in excess of an amount equivalent to 1% of Letter of Credit in
    aggregate for a Contract Year.
    13.3 Notification of Change in Law                                       C

    13.3.1 If the Seller is affected by a Change in Law in accordance
    with Article 13.2 and wishes to claim a Change in Law under this
    Article it shall give notice to the Procurer of such Change in Law
    as soon as reasonably practicable after becoming aware of the
    same or should reasonably have known of the Change in Law.               D
    13.3.2 Notwithstanding Article 13.3.1, the Seller shall be obliged
    to serve a notice to the Procurer under this Article 13.3.2 if it is
    beneficially affected by a Change in Law. Without prejudice to
    the factor of materiality or other provisions contained in this
    Agreement, the obligation to inform the Procurer contained herein        E
    shall be material. Provided that in case the Seller has not provided
    such notice, the Procurer shall have the right to issue such notice
    to the Seller.
    13.3.3 Any notice served pursuant to this Article 13.3.2 shall
    provide, amongst other things, precise details of:                       F
       (a) the Change in Law; and
       (b) the effects on the Seller of the matters referred to in Article
       13.2
    13.4 Tariff Adjustment Payment on account of Change in Law               G
    13.4.1 Subject to Article 13.2, the adjustment in Monthly Tariff
    Payment shall be effective from:
       (i) the date of adoption, promulgation, amendment, re-enactment
       or repeal of the Law or Change in Law; or
                                                                             H
498             SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A               (ii) the date of order/judgment of the Competent Court or tribunal
                or Indian Governmental Instrumentality, if the Change in Law
                is on account of a change in interpretation of Law.
            13.4.2 The payment for Changes in Law shall be through
            supplementary bill as mentioned in Article 11.8. However, in case
B           of any change in Tariff by reason of Change in Law, as determined
            in accordance with this Agreement, the Monthly Invoice to be
            raised by the Seller after such change in Tariff shall appropriately
            reflect the changed Tariff.”
             6. It will be seen that Article 13.4.1 makes it clear that adjustment
C     in monthly tariff payment on account of change in law shall be effected
      from the date of the change in law [see sub-clause (i) of clause 4.1], in
      case the change in law happens to be by way of adoption, promulgation,
      amendment, re-enactment or repeal of the law or change in law. As
      opposed to this, if the change in law is on account of a change in
      interpretation of law by a judgment of a Court or Tribunal or governmental
D     instrumentality, the case would fall under sub-clause (ii) of clause 4.1, in
      which case, the monthly tariff payment shall be effected from the date
      of the said order/judgment of the competent authority/Tribunal or the
      governmental instrumentality. What is important to notice is that Article
      13.4.1 is subject to Article 13.2 of the PPAs.
E             7. Article 13.2 is an in-built restitutionary principle which
      compensates the party affected by such change in law and which must
      restore, through monthly tariff payments, the affected party to the same
      economic position as if such change in law has not occurred. This would
      mean that by this clause a fiction is created, and the party has to be put
F     in the same economic position is if such change in law has not occurred,
      i.e., the party must be given the benefit of restitution as understood in
      civil law. Article 13.2, however, goes on to divide such restitution into
      two separate periods. The first period is the “construction period” in
      which increase/decrease of capital cost of the project in the tariff is to
      be governed by a certain formula. However, the seller has to provide to
G     the procurer documentary proof of such increase/decrease in capital
      cost for establishing the impact of such change in law and in the case of
      dispute as to the same, a dispute resolution mechanism as per Article 17
      of the PPA is to be resorted to. It is also made clear that compensation
      is only payable to either party only with effect from the date on which
H     the total increase/decrease exceeds the amount stated therein.
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                              499
       ADANI POWER LTD. [R. F. NARIMAN, J.]

       8. So far as the “operation period” is concerned, compensation          A
for any increase/decrease in revenues or costs to the seller is to be
determined and effected from such date as is decided by the appropriate
Commission. Here again, this compensation is only payable for increase/
decrease in revenue or cost to the seller if it is in excess of an amount
equivalent to 1% of the Letter of Credit in aggregate for a contract year.
                                                                               B
What is clear, therefore, from a reading of Article 13.2, is that
restitutionary principles apply in case a certain threshold limit is crossed
in both sub-clauses (a) and (b). There is no dispute that the present case
is covered by sub-clause (b) and that the aforesaid threshold has been
crossed. The mechanism for claiming a change in law is then set out by
Article 13.3 of the PPA.                                                       C
       9. In Civil Appeal No. 6190 of 2018, the PPA contains Article
13.4 as follows:
“13.4 Tariff Adjustment Payment on account of Change in Law
      13.4.1 Subject to Article 13.2, the adjustment in Monthly Tariff         D
      Payment shall be effective from:
          (a) the date of adoption, promulgation, amendment, re-
          enactment or repeal of the Law or Change in Law; or
          (b) the date of order/judgment of the Competent Court or
          tribunal or Indian Governmental Instrumentality, if the Change       E
          in Law is on account of a change in interpretation of Law.
          (c) the date of impact resulting from the occurrence of Article
          13.1.1.
      13.4.2 The payment for Changes in Law shall be through
                                                                               F
      Supplementary Bill as mentioned in Article 11.8. However, in
      case of any change in Tariff by reason of Change in Law, as
      determined in accordance with this Agreement, the Monthly
      Invoice to be raised by the Seller after such change in Tariff shall
      appropriately reflect the changed Tariff.”
It will be seen that sub-clause (c) does not occur in the PPA in Civil         G
Appeal No.5865 of 2018. As we have held that the present case is
governed by sub-clause (i) of Article 13.4.1, it is obvious that sub-clauses
(b) and (c) have no application to the facts of the present case.

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500             SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A              10. A reading of Article 13 as a whole, therefore, leads to the
      position that subject to restitutionary principles contained in Article 13.2,
      the adjustment in monthly tariff payment, in the facts of the present
      case, has to be from the date of the withdrawal of exemption which was
      done by administrative orders dated 06.04.2015 and 16.02.2016. The
      present case, therefore, falls within Article 13.4.1(i). This being the case,
B
      it is clear that the adjustment in monthly tariff payment has to be effected
      from the date on which the exemptions given were withdrawn. This
      being the case, monthly invoices to be raised by the seller after such
      change in tariff are to appropriately reflect the changed tariff. On the
      facts of the present case, it is clear that the respondents were entitled to
C     adjustment in their monthly tariff payment from the date on which the
      exemption notifications became effective. This being the case, the
      restitutionary principle contained in Article 13.2 would kick in for the
      simple reason that it is only after the order dated 04.05.2017 that the
      CERC held that the respondents were entitled to claim added costs on
      account of change in law w.e.f. 01.04.2015. This being the case, it would
D
      be fallacious to say that the respondents would be claiming this
      restitutionary amount on some general principle of equity outside the
      PPA. Since it is clear that this amount of carrying cost is only relatable
      to Article 13 of the PPA, we find no reason to interfere with the judgment
      of the Appellate Tribunal.
E            11. We now come to some of the judgments cited by learned
      counsel on behalf of both sides. In South Eastern Coalfields Ltd. v.
      State of Madhya Pradesh and Ors., (2003) 8 SCC 648 [“South
      Eastern Coalfields”], this Court held that interest is payable in equity
      in certain circumstances and finally concluded:
F           “24. We are, therefore, of the opinion that in the absence of there
            being a prohibition either in law or in the contract entered into
            between the two parties, there is no reason why the Coalfields
            should not be compensated by payment of interest for the period
            for which the consumers/purchasers did not pay the amount of
G           enhanced royalty which is a constituent part of the price of the
            mineral for the period for which it remained unpaid. The
            justification for award of interest stands fortified by the weighty
            factor that the Coalfields themselves are obliged to pay interest to
            the State on such amount. It will be a travesty of justice to hold

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UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                               501
       ADANI POWER LTD. [R. F. NARIMAN, J.]

      that though the Coalfields must pay the amount of interest to the         A
      State but the consumers/purchasers in whose hands the money
      was actually withheld be exonerated from liability to pay the
      interest.”
What was argued by Shri Giri was that this judgment cannot be applied
to fact situations that arise under the PPA in view of Article 18.17 of the     B
PPA which clearly states that the liability of the seller and the procurer
shall be limited to that explicitly provided in this agreement and that, in
no event, shall either procurer or seller claim any indirect or consequential
losses or damages. Since we have found that the claim for carrying
costs is under Article 13 of the PPAs, this judgment would have no
application to the facts of the present case.                                   C

      12. Shri Giri also relied upon National Thermal Power
Corporation Ltd. (supra), in which, South Eastern Coalfields (supra)
was distinguished in the following manner:
      “25. In this connection, it is material to note that the claim in South   D
      Eastern Coalfields [(2003) 8 SCC 648] was essentially covered
      under Section 61 of the Sale of Goods Act, 1930, and the interest
      by way of damages was payable as per this statutory provision
      itself. The liability had been crystallised and the interest had
      become payable because of the failure to pay the amount as per
      the liability. Besides, there was nothing in the agreement between        E
      the parties to the contrary on the issue of grant of interest. In the
      present matter, we have the second proviso to Regulation 79(2)
      of the 1999 Regulations which permitted the generating company
      to continue to charge the existing tariff for such period as may be
      specified in the notification by the Commission, and the notifications    F
      permitted continuation of the existing tariff as on 31-3-2001, until
      the final tariff was determined. There was no provision for payment
      of interest therein. The very fact that interest came to be provided
      subsequently by a notification under the Regulations of 2004 is
      also indicative of a contrary situation in the present matter viz.
      that interest was not payable earlier.”                                   G
       13. Article 13 of the PPAs provides for payment of carrying costs,
as held by us above. This judgment also turned on the interpretation of
Regulation 79(2) of the Central Electricity Regulatory Commission

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502             SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A     (Conduct of Business) Regulations, 1999, and therefore, also has no
      manner of application to the facts of the present case.
             14. In Indian Council for Enviro-Legal Action v. Union of
      India and Ors., (2011) 8 SCC 161, this Court was concerned with
      whether a successful party in a litigation should not be compensated by
B     way of restitution for deprivation of its legitimate dues. While dealing
      with restitutionary principles as applicable in the context of environment
      pollution, this Court laid down certain principles in paragraph 197. This
      judgment, again, has no manner of application to the facts of the present
      case which are confined to the interpretation of Article 13 of the PPAs.
C             15. The next judgment relied upon by Shri Giri was All India
      Power Engineer Federation and Ors. v. Sasan Power Ltd. and
      Ors., (2017) 1 SCC 487. Paragraph 31 of this judgment was relied upon
      to state that in context of Section 63 of the Electricity Act, the Commission
      alone can accept amended tariff that would impact consumer interest,
      and therefore, public interest, and waiver of any rights of one of the
D     parties under the PPA, if it impacts such consumer interest, would have
      to pass muster under the Commission which would look into all factors
      and then pass a reasoned order. We fail to see how this judgment has
      any application on the facts of the present case as, in the present case,
      we are concerned with the interpretation of Article 13 of the PPAs.
E            16. Lastly, the judgment of this Court in Energy Watchdog v.
      Central Electricity Regulatory Commission and Ors., (2017) 14
      SCC 80 was also relied upon. In this judgment, three issues were set out
      and decided, one of which was concerned with a change in law provision
      of a PPA. In holding that change in Indonesian law would not qualify as
F     a change in law under the guidelines read with the PPAs, this Court
      referred to Clause 13.2 as follows:
            “57. …… This being so, it is clear that so far as the procurement
            of Indian coal is concerned, to the extent that the supply from
            Coal India and other Indian sources is cut down, the PPA read
G           with these documents provides in Clause 13.2 that while
            determining the consequences of change in law, parties shall have
            due regard to the principle that the purpose of compensating the
            party affected by such change in law is to restore, through monthly
            tariff payments, the affected party to the economic position as if
            such change in law has not occurred……”
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UTTAR HARYANA BIJLI VITRAN NIGAM LTD. [UHBVNL] v.                                503
       ADANI POWER LTD. [R. F. NARIMAN, J.]

There can be no doubt from this judgment that the restitutionary principle       A
contained in Clause 13.2 must always be kept in mind even when
compensation for increase/decrease in cost is determined by the CERC.
      17. In this view of the matter, the appeals are accordingly dismissed.

                                                                                 B
Divya Pandey                                                Appeals dismissed.




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