NBMC - 04 Respondent

I
NBMC – 04
SMT. NIRMALA DEVI BAM MEMORIAL
INTERNATIONAL MOOT COURT COMPETITION – CHAPTER IV
BEFORE THE HON’BLE SUPREME COURT OF DOWNTON
CASE NO………/2022
UNDER ARTICLE 136 OF THE INDIAN CONSITUTION
IN THE MATTER OF
PARIDHI ENTERPRISES …. APPELLANT
Vs.
SEOPLE URJA VIKAS NIGAM LIMITED (SUVNL) …. RESPONDENT
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF DOWNTON
I
MEMORIAL for RESPONDENT [TABLE OF CONTENTS]
TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................................................I
LIST OF ABBREVIATION......................................................................................................II
TABLE OF AUTHORITIES...................................................................................................III
STATEMENT OF JURISDICTION........................................................................................IV
STATEMENT OF FACTS........................................................................................................V
STATEMENT OF ISSUES.....................................................................................................VI
SUMMARY OF ARGUMENTS............................................................................................VII
ARGUMENTS ADVANCED...................................................................................................1
I. WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE..................1
A. Jurisdiction to Adjudicate in regard to Change in Law..............................................1
B. Jurisdiction of the Commission derived from section 79 of The Electricity Act, 2003:
………………………………………………………………………………………3
II. WHETHER CERC OF DOWNTON CAN PROVIDE FOR THE COMPENSATORY TARIFF AS
PER ITS OWN DISCRETION.......................................................................................................5
A. CERC as ultimate right to provide Tariff...................................................................5
B. Unsatisfactory provision of Compensatory Tax:.......................................................7
III. WHETHER THE IMPUGNED JUDGEMENT BY THE APLET ON FORCE MAJEURE IS VALID
AND “CHANGE IN LAW” IN THE PPA ENCOMPASSES FOREIGN LAW.....................................8
A. Impossibility in performing the contract....................................................................8
B. Change in Law encloses Foreign law in PPA..........................................................12
PRAYER FOR RELIEF........................................................................................................VIII
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page |
I
MEMORIAL for RESPONDENT [LIST OF ABBREVIATIONS]
LIST OF ABBREVIATION
SERC State Electricity Regulatory Commission
CERC Central Electricity Regulatory Commission
AIR All India Reporter
SCC Supreme Court Cases
Hon’ble Honourable
Ors. Others
APLET Appellate Tribunal
PPA Power Purchase Agreement
II
MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]
TABLE OF AUTHORITIES
Statues:
 Constitution of India, 1950
 Electricity Act,2003
 Indian Contract Act, 1872
Cases
Adani Power (Mundra) Limited vs Uttar Haryana Bijli Vitran Nigam Limited........................1
Gujarat Urja Vikas Nigam Limited vs Adani Power ( Mundra) Limited..................................1
M/S. Maithon Power Limited vs Delhi Electricity Regulatory..................................................1
Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, 1961 (2) All ER 179.....................................1
Other Authorities
CERC Order dated December, 2016..........................................................................................1

Refer model PPA aggreement....................................................................................................1
Section 79 of electricity Act.......................................................................................................1
Section 79 of Electricity Act, 2003............................................................................................1
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | III
MEMORIAL for RESPONDENT [STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Downton has jurisdiction in the matter under Article 136 of
the Constitution of Downton which reads as follows:
Article 136: Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | IV
MEMORIAL for RESPONDENT [STATEMENT OF FACTS]
STATEMENT OF FACTS
THE COMPETITIVE WINNER
1. In the State of Seople, SUVNL issued a public notice, inviting proposals for supply of
power on a long term basis. Paridhi Enterprises Consortium were declared as the
successful bidders by SUVNL for Quoting the non-escalable tariff charge.
2. 3 Paridhi Enterprises Consortium, who was selected by SUVNL as the successful bidder,
indicated that they already had an arrangement with Seople Mineral Development
Corporation, which had been allotted a certain coal block in the State of Samastigarh.
And a Memorandum of Understanding was entered into with German Company and with
a Japanese agent.
3. The decided tariff was accepted by the CERC and consequently the PPA was enforced to
full effect by both the parties.
THE AMENDMENT
4. A sudden change in law in Truasia occurred, which aligned the export price of coal from
Truasia to international market prices instead of the price that was prevailing for the last
40 years, which affected the PPA terms.
PROCEEDINGS
5. A sudden change in law in Truasia occurred, which aligned the export price of coal from
Truasia to international market prices instead of the price that was prevailing for the last
40 years, which affected the PPA terms.
6. Therefore, on 5th July 2019, Paridhi Power filed a petition before the Central Electricity
Regulatory Commission seeking relief either discharge them from the performance of the
PPA on account of frustration, or to evolve a mechanism to restore the petitioners to the
same economic condition prior to occurrence of the change in law in Truasia Regulation.
7. The Central Commission held that the Power Purchase Agreements entered into by
Paridhi in both the cases constituted a composite scheme for generation and sale of
electricity. So, being an appropriate Commission and not the respective State
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | V
MEMORIAL for RESPONDENT [STATEMENT OF FACTS]
8. Commissions, it does not had jurisdiction in the matter.

9. The Central Commission passed an order, whereby the claim of Paridhi Power on the
grounds of force majeure and/or change in law was held not to be admissible but it can
provide redressal of grievances under Section 79 of the Act.
CONDONATION OF DELAY
10. The Committee submitted a report, rejecting the cross-objection filed by Paridhi Power
and on 31st October, 2020, the Appellate Tribunal rejected the prayer for condonation of
delay. So, Paridhi Power filed an appeal before the Supreme Court.
THE IMPUGNED JUDGEMENT
11. Finally, the Appellant tribunal on 7th April, 2021, passed the impugned judgement in all
the aforesaid cases:
 The Tribunal agreed with the commission stated that CERC has jurisdiction to
proceed further in the matter and it stated that force majeure and change in law could
gone into it.
 It also held that changes in law provisions do not apply to foreign laws therefore
change in Truasian laws does not come under the scope of the provisions.
 Accordingly, the matter was remanded to CERC to grant compensatory tariff.
12. Paridhi enterprises aggrieved by the final order appealed against the same. Which
highlighted the unsatisfactory provision of compensatory tax
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | VI
MEMORIAL for RESPONDENT [STATEMENT OF ISSUES]
STATEMENT OF ISSUES
THE APPELLANTS HAVE PLACED BEFORE THIS HONOURABLE

COMMISSION, THE FOLLOWING ISSUES FOR ITS CONSIDERATION:
I) WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE

II) WHETHER CERC OF DOWNTON CAN PROVIDE FOR THE COMPENSATORY TARIFF AS
PER ITS OWN DISCRETION
III) WHETHER THE IMPUGNED JUDGEMENT BY THE APLET ON FORCE MAJEURE IS VALID
AND "CHANGE IN LAW" IN THE PPA ENCOMPASSES FOREIGN LAW
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | VII
MEMORIAL for RESPONDENT [SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
I) WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE

It is most humbly submitted before this hon'ble supreme court that petition filed under CERC
of Downton is not maintainable. Firstly, CERC has no regulatory power to determine tariff.
Secondly, SERC have jurisdiction to terminate PPA . Therefore CERC does not have
jurisdiction, it the SERC which has jurisdiction.
II) WHETHER CERC OF DOWNTON CAN PROVIDE FOR THE COMPENSATORY TARIFF
AS PER ITS OWN DISCRETION
The CERC has no proper authority to take its own discretion in the matter of Section 79(1)(a)
and this intends t a contractual interpretation of the PPA’s as they stood in a Non Motion
range. The Validity of the taxing power is taken as a pertinent point where the validity of
taxing power under the entry 57 List II of the seventh schedule read with Article 301 of the
Constitution depends upon the regulatory and compensatory nature of the taxes, which CERC
cannot provide for the compensatory tariff as per its own discretion.
III) WHETHER THE IMPUGNED JUDGEMENT BY THE APLET ON FORCE

MAJEURE IS VALID AND "CHANGE IN LAW" IN THE PPA ENCOMPASSES FOREIGN
LAW
It is humbly submitted before the Hon’ble Supreme Court of Downton that all ‘Laws’
Cannot include Foreign laws and escalation of price does not affect the performance of the
Contract
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | VI
ARGUMENTS ADVANCED
A. WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE
It is most humbly submitted before this hon'ble supreme court that petition filed under CERC
of Downton is maintainable. Firstly, CERC have jurisdiction to adjudicate in regard to
change in law. Secondly, Section 79 of environmental act gives jurisdiction to CERC . Thus
the petition filed under CERC is maintainable.
B. CERC HAS NO REGULATORY POWER TO DETERMINE TARIFF
According to Section 79(1) (b) to regulate the tariff of generating companies other than those
owned or controlled by the Central Government specified in clause (a), if such generating
companies enter into or otherwise have a composite scheme for generation and sale of
electricity in more than one State.1
"The Central Commission has no regulatory powers under Section 79(1) (b) of the said Act to
vary or modify the tariff or otherwise grant compensatory tariff to the generating companies
in case of a tariff determined under a tariff based competitive bid process as per Section 63 of
the said Act.2 In the present case, the participating bidders were to decide on the tariff and
quote such tariff after competing against each other. The bidders were entitled to quote
escalable or non-escalable tariff or partly escalable and partly non- escalable tariff, as was
considered appropriate by them to cover their respective risks so as to obtain whatever returns
are available to them. Thus it is evident that tariff based on competitive bid process as per
section 63, hence central commission has no regulatory power under section 79. Further
while a generator quotes a tariff in a bid, it is free to quote escalable and non-escalable energy
or capacity charges. When a generator quotes non-escalable energy charges, as in the present
case, it means that the generator has locked its risk for that particular base price of coal, in
which event the generator cannot later on seek an enhanced payment for any increased base
price of fuel/coal. In case a generator quoting escalable energy charges, then the said
generator is eligible for claiming compensation under a different mechanism in accordance
with the annual escalation index issued by the Central Commission. Thus petition seeking to
evolve a mechanism to restore the Paridhi Enterprises to the same economic condition prior
1
Section 79 of electricity Act
2
M/S. Maithon Power Limited vs Delhi Electricity Regulatory
4th SMT NIRMALA DEVI BAM INTERNATIONAL MOOT COURT COMPETITION Page | 1
to occurrence of the change in law
which is possible only by vary or modify the tariff or otherwise grant compensatory tariff,
which in this case is out of the purview of the central commission.
B. SERC HAVE JURISDICTION TO TERMINATE PPA:
It is most humbly submitted that the jurisdiction in the present case lies with State Regulatory
Commission (‘SERC’) as it is the SERC, which is mandated to regulate the electricity
purchase and procurement process of Paridhi through the agreements for purchase of power
under Section 86(1)(b) of the Act.
Section 86(1) (b) and Section 86(1) (f) of the Electricity Act, 2003 the exclusive jurisdiction
is that of the State Commission in all such matter which has been settled by the Hon,ble
Supreme Court of India in the matter of Tata Power decided on 6/05/2009 (Civil Appeal Nos.
3510 -3511 and 3593 of 2008 , Para 146). The operative part of the judgment is reproduced
below:
“Section 86 (1) (b) provides for regulation of electricity purchase and procurement process of
distribution licensees. In respect of generation its function is to determine the tariff for
generation as also in relation to supply; transmission and wheeling of electricity, Clause (b)
of sub section (1) of section 86 provides to regulate electricity purchase and procurement
process of distribution licensee including the price at which the electricity shall be procured
from the generating companies or licensees or from other sources through agreements. As
part of the regulations, it can also adjudicate upon disputes between the licensees and
generating companies in regard to the implementation, application or interpretation of the
provisions of the said agreement.”
The jurisdiction of Central Commission cannot at all be invoked for adjudication of the
present dispute (i.e. termination of the PPA) since the adjudication of said disputes does not
fall within the purview of the functions enshrined under Section 79 of the Act.
From a conjoint reading of the provisions contained under Section 79 (1) (b) and 79 (1) (f) of
the Act, it is evident that the jurisdiction of the Commission can be invoked only if the
dispute is related to adjustment in tariff of the generating companies and not otherwise. Since
the present dispute is relating to termination of the PPA which is directly related to the
procurement of electricity in the State of Seople, the same is squarely falls within the purview
of Section 86 (1) (b) read with Section 86 (1) (f) of the Act.
As per Article 14.3 1 of the PPA, the SERC is the Appropriate Commission for resolving the
disputes.
There is no provision under Section 79 of the Act akin to the provisions contained under
Section 86 (1)(b) of the Act which would enable the central Commission to adjudicate the
present dispute. Rather the provisions which empowers the central Commission to adjudicate
dispute i.e. Section 79 (1) (f) is restrictive in nature in so far as it empower central
Commission to adjudicate disputes only in regard to matters connected with clauses (a) to (d)
of Subsection (1) of Section 79 of the Act. Therefore, the Petition is not maintainable in
CERC.
C. WHETHER CERC OF DOWNTON CAN PROVIDE FOR THE COMPENSATORY TARIFF AS
PER ITS OWN DISCRETION.
It is humbly submitted before the Hon’ble Supreme Court that the CERC of Downton cannot
provide for the compensatory tariff as per its own discretion.
A. CERC LEFT WITH NO AUTHORITY
Section 793. (Functions of Central Commission): ---

(1) The Central Commission shall discharge the following functions, namely: -
(a) to regulate the tariff of generating companies owned or controlled by the Central
Government;
(b) to regulate the tariff of generating companies other than those owned or controlled by the
Central Government specified in clause (a), if such generating companies enter into or
otherwise have a composite scheme for generation and sale of electricity in more than one
State;
(c) to regulate the inter-State transmission of electricity ;
(d) to determine tariff for inter-State transmission of electricity;
(e) to issue licenses to persons to function as transmission licensee and electricity trader with
respect to their inter-State operations;
(f) to adjudicate upon disputes involving generating companies or transmission licensee in
regard to matters connected with clauses (a) to (d) above and to refer any dispute for
arbitration;
3
Section 79 of Electricity Act, 2003
(g) to levy fees for the purposes of this Act;
(h) to specify Grid Code having regard to Grid Standards;

(i) to specify and enforce the standards with respect to quality, continuity and reliability of
service by licensees;
(j) to fix the trading margin in the inter-State trading of electricity, if considered, necessary;
(k) to discharge such other functions as may be assigned under this Act.
Section 79(1)(a) of the Act deals with “regulation of tariff” of generating companies owned
or controlled by the Central Government. Since neither party to the present dispute is owned
by the Central Government nor is seeking any regulation of tariff, Section 79(1)(a) of the Act
does not apply to the present case.
As per CERC, most of the tariffs discovered through bidding were more competitive than
"cost-plus" tariffs determined for similar projects1. As per a report of Prayas Energy Group2,
the tariffs discovered through bidding were indeed lower than those determined on a cost-
plus basis. It also highlights several governance concerns regarding bidding processes in
several states including potential danger of post-bidding changes to tariffs. Highlighting the
potential fuel risks inherent in some of the fixed price bids, the report presciently questioned
the feasibility and viability of these projects.
At the time of commercial operation, many companies started complaining about viability
issues on account of increased fuel costs. In 2012, some of these projects such as Tata
Power's Mundra UMPP and Adani Power's Mundra project filed cases before the Central
Electricity Regulatory Commission (CERC). They sought revision of the quoted tariff on
grounds of –
Increase in the price of Indonesian coal
Shortfall in domestic coal supply and depreciation of the Indian rupee.
Similar cases were also filed before the Maharashtra Commission and a few other state
commissions.
PPAs (Power Purchase Agreements) allow revision of tariff only on two pre-conditions i.e.
change in law, whereby a legal action of a government body or a court imposes any cost (or
results in benefit) and force majeure, which implies an unforeseen event which prevents or
unavoidably delays the performance of obligations under the contract.
The companies contended that, change in price of coal by virtue of Indonesian regulation
should be treated as either a force majeure event or a change in law event and that, they
should be compensated for the hardship imposed on this account and making their projects
viable. This claim was supported on the grounds of sectoral and consumer interest.
The order of CERC was challenged before the Appellate Tribunal for Electricity (APTEL),
which rejected the use of regulatory power to grant relief to the projects. It held that changes
in the domestic coal distribution policy and promulgation of the Indonesian regulation
couldn't be treated as "change in law" under the PPA5. It stated, the change in the price of
imported coal would rather fall under the purview of "force majeure". By holding this, it
directed the commission to determine the exact scope of relief to be granted to such projects.
Subsequently, CERC through another order lessened the amount of tariff. 4
It states that the term "law" cannot be construed to mean any law including both Indian and
foreign laws, as "The meaning will have to remain the same whether coal is sourced wholly
in India, partly in India and partly from outside, or wholly from outside. This being the case,
the meaning of the expression "any law" in clause 13 cannot possibly be interpreted in the
manner suggested by the respondents." Hence no tariff increase can be allowed on account
of the change in Indonesian regulations. Therefore, no relief is applicable to projects or PPAs
based on imported coal (such as Tata Mundra UMPP or Adani Mundra PPA with GUVNL
based on imported coal).
B. SATISFACTORY PROVISION FOR COMPENSATORY TAX:
Validity of the taxing power under the entry 57 list II of the seventh schedule read with
Article 301 of the constitution depends upon the regulatory and compensatory nature of taxes.
The Project Developers have been held not entitled to any relief under any of the three heads,
namely, exercise of general regulatory powers to grant compensatory tariff; force majeure
under Article 12 of the PPA; and Change in Law under Article 13 of the PPA.5
The judgment in Energy Watchdog Case was based on a contractual interpretation of the
PPAs as they then stood and the said judgment does not lay down the law, as alleged, rather it
merely interprets the contractual provisions. Therefore, the said judgment does not preclude
the Commission from examining the proposed amendments to the said PPAs and dealing
with them as per law.
The Appellate Tribunal for Electricity has always been that the entire actual domestic coal
received from MCL will be allocated/accounted for towards the power supplied under the
Haryana PPAs for the purpose of computation of compensatory tariff in accordance with
Government of India Guidelines. Therefore, the issue of IPT raised by Haryana Utilities is
completely unfounded in facts and should be rejected.6
4
CERC Order dated December, 2016,
5
Gujarat Urja Vikas Nigam Limited vs Adani Power ( Mundra) Limited.
6
Adani Power (Mundra) Limited vs Uttar Haryana Bijli Vitran Nigam Limited
Hence, The Counsel of the Respondents states and prays based upon the above stated
contentions that, the CERC cannot provide Compensatory Tariff based upon its own
discretion.
C. WHETHER THE IMPUGNED JUDGEMENT BY THE APLET ON FORCE MAJEURE IS

VALID AND “CHANGE IN LAW” IN THE PPA ENCOMPASSES FOREIGN LAW
It is humbly submitted before the Hon’ble Supreme Court of Downton that all ‘Laws’
Cannot include Foreign laws and escalation of price does not affect the performance of the
Contract
A. INTERPRETATION OF CLAUSE 13 AND DEFINITION CLAUSES IN PPA
From reading the Clause 13 of the PPA, it is clear that clause 13 is in four different parts.
The first part speaks about the Enaction; the second part speaks about the interpretation of
such laws by Courts or other instrumentalities; the third speaks about the changes in
consents, approvals or licences which result in change in cost of the business of selling
electricity; and the fourth refers to any change in the declared law of the land for the
project, cost of implementation of re- settlement and rehabilitation or cost of
implementing the environmental management plan.
‘Competent Court’7 in clause 13(i) is defined as meaning only the judicial system of
Downton.
First and foremost, the expression “any law” occurs in both subsection (i) and sub-
section (ii) of clause 13, which expression must be given the same meaning in both sub-
sections. This being the case, as in sub-clause (ii) this expression would refer only to laws
in Downton, the same meaning will have to be given to the very same expression in sub-
clause (i). Even otherwise, sub-clauses (i) and (ii) form part of the same contractual
7
Refer model PPA aggreement
scheme in that
interpretation of those very laws by a competent Court of law/Tribunal or Indian

Government instrumentality. ‘Competent Court’, as we have seen above, speaks only of
the Indian judicial system and, therefore, the enactments spoken of in sub-clause (i)
would necessarily refer only to Indian enactments.
As the Indian Laws are Pari Materia to the laws of Downton, as of how it is being stated
in the Facts, ‘Competent Court’, speaks only about the judicial system of Downton and
the enactments spoken would necessarily refer only to Indian enactments.
The Clauses in the PPA have been drafted by the Central Government itself. It is,
therefore, clear that the PPA goes on to explain what the expression “any change in law”
means.
This being the case, it is clear that the definition of “law” speaks of all laws including
electricity laws in force in India. Electricity laws, as has been seen from the definition,
means the Electricity Act, rules and regulations made thereunder from time to time, and
any other law pertaining to electricity.
This being so, it is clear that the expression “in force in Downton” in the definition of
‘law’ goes with “all laws”. This is for the reason that otherwise the said expression would
become tautologous, as electricity laws that are in force in India are already referred to in
the definition of “electricity laws” as contained in the PPA. Once this is clear, at least
textually it is clear that “all laws” would have to be read with “in force in Downton” and
would, therefore, refer only to the laws in Downton.
B. DELIBERATION OF THE ESCALATION OF PRICE AND PERFORMANCE OF THE

CONTRACT
A mere escalation in the cost of the project due to some contingent event being change in the
price of Truasian coal export prices cannot be constituted as hindrance under section 56 of
The Indian Contracts Act,1872 and therefore any change in the price of Truasian coal export
does not in any way contrast with the fundamental principles of the contract so made.
The very genesis that pops up is that the contracting parties always presumes the existence of
certain risks involved while entering the contract and which cannot contribute non
performance on the basis of impossibility and hence the doctrine of frustration remains
inapplicable in the present case.
It must be held also that to the extent that the Indian Contract Act deals with a particular
subject, it is exhaustive upon the same and it is not permissible to import the principles of
English law dehors these statutory provisions. The decisions of the English courts possess
only a persuasive value and may be helpful in showing how the courts in England have
decided cases under circumstances similar to those which have come before our courts.
It seems necessary however to clear up some misconception which is likely to arise because
of the complexities of the English law on the subject. The law of frustration in England
developed, as is well known, under the guise of reading implied terms into contracts. The
court implies a term or exception and treats that as part of the contract
In an instructive English judgment8, despite the closure of the Suez canal, and despite the fact
that the customary route for shipping the goods was only through the Suez canal, it was held
that the contract of sale of groundnuts in that case was not frustrated, even though it would
have to be performed by an alternative mode of performance which was much more
expensive, namely, that the ship would now have to go around the Cape of Good Hope,
which is three times the distance from Hamburg to Port Sudan. The freight for such journey
was also double. Despite this, the House of Lords held that even though the contract had
become more onerous to perform, it was not fundamentally altered. Where performance is
otherwise possible, it is clear that a mere rise in freight price would not allow one of the
parties to say that the contract was discharged by impossibility of performance. The same
blends with our case too, a mere increase in coal price would not conclude the contract’s
performance to be impossible and result in discharge of the same
The court concluded that mutual agreement to transfer the risk of performance sets an
obligation on the contracting parties to execute the commitment against all odds as far as
practicable
In the case of Energy watchdog v. CERC Civil Appeal Nos.5399-5400 of 2016 According
to learned counsel, Adani voluntarily decided to quote energy charges as non-escalable in
order to be competitive and, therefore, get the award of the contract. It cannot now, in the
guise of being affected by force majeure, convert this into an escalable tariff.
8
Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, 1961 (2) All ER 179
Paridhi while entering the contract with reasonable diligence should know that there can be a
change in prices of coal in international market but they quoted non escalable tariff
voluntarily to be competitive, (as` of how it was discussed above) so now they cannot change
the foundation of he contract because of the loss which was faced by their own negligence. It
also provides that where one person has promised to do something which he knew, or, with
reasonable diligence might have known, and which the promisee did not know to be
impossible or unlawful, such a promiser must make compensation to such promisee for any
loss which such promisee sustains through the non- performance.
The apex court in a judgement9 stated that unanticipated conditions such as escalation of
prices which are an obstacle to execution does not get rid the contractual parties of the
bargain they have made and hence mere circumstantial change cannot be exclaimed as
frustration.
9
M/s Alopi Parshad& Sons Ltd. v. Union of India[iii]
11
12
MEMORIAL for RESPONDENT [PRAYER FOR RELIEF]
PRAYER FOR RELIEF
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE
COURT MAY BE PLEASED TO ADJUDGE AND DECLARE THAT:
1: CERC does not have jurisdiction in the present matter.

2: CERC of Downton cannot provide for the compensatory tariff as per its own discretion
3: The Judgement by the APLET on Force Majure is not valid and the term "Change in Law"
in the PPA does not include Foreign Law
AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT
IN THE INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE
FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IN DUTY BOUND SHALL
FOREVER PRAY.
All of which is most humbly prayed
VIII

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I

SMT. NIRMALA DEVI BAM MEMORIAL

INTERNATIONAL MOOT COURT COMPETITION – CHAPTER IV

BEFORE THE HON’BLE SUPREME COURT OF DOWNTON

UNDER ARTICLE 136 OF THE INDIAN CONSITUTION

PARIDHI ENTERPRISES …. APPELLANT

SEOPLE URJA VIKAS NIGAM LIMITED (SUVNL) …. RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

I. WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE..................1

A. Jurisdiction to Adjudicate in regard to Change in Law..............................................1

PER ITS OWN DISCRETION.......................................................................................................5

A. CERC as ultimate right to provide Tariff...................................................................5

B. Unsatisfactory provision of Compensatory Tax:.......................................................7

A. Impossibility in performing the contract....................................................................8

B. Change in Law encloses Foreign law in PPA..........................................................12

PRAYER FOR RELIEF........................................................................................................VIII

SERC State Electricity Regulatory Commission

CERC Central Electricity Regulatory Commission

AIR All India Reporter

SCC Supreme Court Cases

APLET Appellate Tribunal

PPA Power Purchase Agreement

CERC Order dated December, 2016..........................................................................................1

Article 136: Special leave to appeal by the Supreme Court

THE COMPETITIVE WINNER

8. Commissions, it does not had jurisdiction in the matter.

THE IMPUGNED JUDGEMENT

THE APPELLANTS HAVE PLACED BEFORE THIS HONOURABLE

I) WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE

I) WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE

III) WHETHER THE IMPUGNED JUDGEMENT BY THE APLET ON FORCE

A. WHETHER PETITION FILED UNDER CERC OF DOWNTON IS MAINTAINABLE

B. CERC HAS NO REGULATORY POWER TO DETERMINE TARIFF

to occurrence of the change in law

B. SERC HAVE JURISDICTION TO TERMINATE PPA:

C. WHETHER CERC OF DOWNTON CAN PROVIDE FOR THE COMPENSATORY TARIFF AS

PER ITS OWN DISCRETION.

A. CERC LEFT WITH NO AUTHORITY

Section 793. (Functions of Central Commission): ---

(g) to levy fees for the purposes of this Act;

(h) to specify Grid Code having regard to Grid Standards;

B. SATISFACTORY PROVISION FOR COMPENSATORY TAX:

C. WHETHER THE IMPUGNED JUDGEMENT BY THE APLET ON FORCE MAJEURE IS

A. INTERPRETATION OF CLAUSE 13 AND DEFINITION CLAUSES IN PPA

interpretation of those very laws by a competent Court of law/Tribunal or Indian

B. DELIBERATION OF THE ESCALATION OF PRICE AND PERFORMANCE OF THE

PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

1: CERC does not have jurisdiction in the present matter.

All of which is most humbly prayed

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