Electricity Act Overrides Arbitration Act –
the Judgment dated 3.11.2025 of the High Court of Delhi in O.M.P. (I) (COMM) 213/2025 of Renew Wind Energy (AP2) Pvt ltd.Vs. Solar Energy Corporation of India
The respondent had executed Power Purchase Agreement dated 23.5.2018 with the Petitioner for supply of 300 MW power for 25 years from 24.11.2019.
On 2.5.2025, the respondent issued notice to the petitioner for non-fulfilment of minimum energy requirement for the financial year 2024-2025 and demanded compensation as per Article 4.4.1 of the PPA.
The petitioner – energy generating company – filed Section 9 petition for injunction against the respondent – licensee against the recovery and consequential deductions.
The respondent objected to the maintainability of Section 9 petition in view of Section 79(1)(f) of the Electricity Act, 2013, i.e. referral powers of CERC.
HELD that section 79(1)(f) is in two parts – one adjudication of disputes connected with matters under clauses (a) to (d) and another referral powers extend to “any dispute”
Referral powers have two facets – first to refer such disputes which CERC is capable to adjudicate under clauses (a) to (d) of Section 79(1) and second, dispute which CERC is not capable to adjudicate. Both these aspects deserve separate consideration. However, CERC jurisdiction is attracted only when a dispute relating to tariff arises.
In this case, the decision of the CERC was relied on. However, after the judgment in the instant case was reserved on 10.10.2025, the High Court has discovered that review petition against the said CERC order was admitted on 17.5.2024 and the judgment in the said review was reserved on 16.9.2025.
It was also found that the CERC dismissed the review petition on 27.10.2025.
In that context, it was observed in para 48 of the judgment that the instructing / briefing counsel / law firms are expected to verify whether a review, appeal or revision is pending against a decision relied on by the party.
It was further observed that reliance on a decision that is under review or appeal, without disclosing such pendency, amounts to lack of candour to the Court and may mislead the adjudicatory process. Such conduct falls short of the standard of fairness and completeness that is expected from officers of the Court.
Section 94(2) of the Electricity Act would allow a party to seek interim reliefs, during the pendency of petition under Section 79(1)(f) or Section 86(1)(f), as provided for in Section 9 of the Arbitration Act.
Section 94(2) is broad enough to allow an interim direction to be passed which shall stay in operation till the constitution of arbitral tribunal or till the arbitral tribunal does not conclusively decide on a given issue.
The powers of the CERC to refer a dispute involving generating companies or transmission licensee for arbitration prevails over the referral powers under Sections 8 or 11 of the Arbitration Act.
