THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.P.No. 27101 of 2005 Dated 11-04-2011 Between: M/s. Lanco Kondapalli Power Pvt. Ltd., Hyderabad rep., by its Company Secretary, Sri D. Krishna Rao and another. …Petitioners Vs. Andhra Pradesh Power Coordination Committee, Vidhyutsoudha, Hyderabad, rep., through its Chairperson and others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM And THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.P.No. 27101 of 2005 Oral Order: (Per: GR, J) Heard Sri Challa Gunaranjan, learned counsel for the petitioners and the learned Advocate General instructed by Ms. P.V.V.B. Rajeshwari for the respondents. The Chief Engineer (Commercial), Andhra Pradesh Power Coordination Committee, Hyderabad, addressed the impugned letter dated 14-12-2005 to the 1st petitioner intimating that since there was a delay in achieving the scheduled date of completion of the last unit, the 1st petitioner should pay as liquidated damages to the Board a sum of Rs.95.16 crores to the Andhra Pradesh Transco and the relevant Discoms and that part of this amount is being adjusted from the amounts payable by the A.P. Transco and relevant Discoms to the 1st petitioner for the month of December, 2005 and that the balance should be immediately paid or the same would be adjusted in future bills. By another letter dated 15-12-2005 addressed by the Deputy Chief Controller of Account (PP &S), APPCC, Hyderabad, the 1st petitioner was intimated in continuation of the letter dated 14-12-2005, that an amount of Rs.46,25,21,319-00 is adjusted against the amount payable by Bill No. 67, towards the liquidated damages receivable from the 1st petitioner to the tune of Rs.91.16 crores and that the balance amount of Rs.48,90,78,681- 00 be paid by the 1st petitioner to the APCC, immediately or else the same would be adjusted against future bills. Details of the amount of Rs. 48,90,78,681-00 are set out in the letter dated 15-12- 2005. The petitioners assail the letters dated 14-12-2005 and 15-02-2005 on several grounds, enumeration of which is neither relevant nor material in the context of the fact that the writ petition is being disposed of on the basis of the fact that these very issues are being considered by the Andhra Pradesh Electricity Regulatory Commission (for short ‘the Commission’). The respondents filed an application before the Commission, numbered as O.P.No. 23 of 2005 seeking validation of the liquidated damages specified in the respondents’ letter dated 14-12-2005 by the Commission. By an order dated 29-12-2005 in W.P.M.P.No. 34820 of 2005 in this writ petition, a learned single Judge suspended the directive of the respondents contained in the impugned letter dated 14-12-2005, adverted to earlier. The respondents preferred an appeal – W.A.No. 82 of 2006 against the said interim order. By the order dated 02-02-2006 in W.A.M.P.No. 155 of 2006 in the said writ appeal, a learned Division Bench of this Court granted stay of operation of the order dated 09-12-2005 of the learned single Judge subject to the condition that the respondents herein are disentitled to make any further deduction or adjustment from the future bills of the 1st petitioner herein and further observed that neither the pendency of the writ petition nor the appeal should impede the disposal of the application filed by the respondents before the Commission. Against the order dated 02-02-2006 the 1st petitioner preferred SLP (CIVIL) No. 7562 of 2006. By the order dated 05-02-2007 the Supreme Court disposed of the 1st petitioner’s appeal as under: In our opinion, it is not appropriate to grant interim relief at this stage. It is, however, clarified that in view of the observation of the Division Bench of the High Court, it is open to the petitioner to raise all contentions, including the contention as to jurisdiction of the Commission. As and when such point will be raised before the Commission, the Commission will take appropriate decision in accordance with law. In view of the orders of the Supreme Court dated 05- 02-2007 adverted to above, it is clear that the 1st petitioner as a respondent in the application preferred before the Commission is entitled to raise all contentions including as to the jurisdiction of the Commission to determine/validate the amount of liquidated damages stipulated by the respondents as due and payable by the 1st petitioner. It is also stated by Sri Challa Gunaranjan that there is a counter claim of the 1st petitioner to the claim for liquidated damages of the respondents which is also being considered by the Commission as part of its determination in O.P.No. 23 of 2005. It is synoptically submitted before us by Sri Challa Gunaranjan, learned counsel for the petitioners and the learned Advocate General for the respondents that the learned Commission has concluded hearing on the respondents’ application and is about to pass orders therein. In the above view of the matter, since the Commission is authorized to adjudicate upon the matters presented to it by the respondents including the counter claim presented by the 1st petitioner herein including on the point of jurisdiction of the Commission qua the order of the Supreme Court dated 05-02-2007 in Civil Appeal No. 7562 of 2006, we are not inclined to pronounce upon the issues presented for determination in this writ petition as simultaneous determination by this Court and by the Commission might result in a potential conflict in decisions. Accordingly the writ petition is disposed of requesting the Commission to expeditiously pronounce orders in O.P.No. 23 of 2005 preferably within a period of four weeks from the date of receipt of a copy of this order. It is needless to state that either party shall be at liberty to pursue appropriate remedies, if aggrieved by any order passed by the Commission in O.P.No. 23 of 2005. In the facts and circumstances of the case, it is however directed that the respondents shall not take steps to recover the balance amount due from the petitioners as liquidated damages determined by the respondents qua its letter dated 14-12-2005 from the future bills payable to the 1st petitioner till the disposal of O.P.No. 23 of 2005. Thereafter the right and remedy of the respondents, if any, to recover the balance amount due from the 1st petitioner shall be in accordance with the order passed by the Commission in O.P.No. 23 of 2005. No costs. ____________________ GODA RAGHURAM, J _______________________ P. DURGA PRASAD, J Dated: 11-04-2011 Pvks