What is distinction between grounds for attacking appellate order and substantial question of law?

 Under Section 125 of the Electricity Act, 2003, an
appeal to this Court lies only when there is a substantial
question of law, as required for a second appeal under
Section 100 of Code of Civil Procedure, 1908. Though the
appellant has raised 34 questions, they are actually
grounds for attacking the appellate order. Grounds for
attacking an order are different from substantial question
of law evolved in the appeal. On appreciation of the
correspondence between the parties during the subsistence

of the agreement, both the Commission and the Appellate
Tribunal have held against the appellant.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5919 OF 2013
WARDHA POWER CO. LTD.
V
MAHARASHTRA STATE ELECTRICITY
DISTRIBUTION CO. LTD. AND ANR.



1. The appellant is aggrieved by the concurrent findings
recorded by the Maharashtra Electricity Regulatory
Commission (in short ’the Commission’) and the Appellate
Tribunal for Electricity (in short ‘the Tribunal’).
2. The appellant had entered into an agreement to
generate and supply power to Respondent No.1. Since the
appellant could not keep up the time schedule, it made an
adhoc arrangement for purchase of power from other sources.
3. Whether such adhoc supply should be at the actual cost
incurred by the appellant or at the agreed rate for the
generated power is the short question.
4. Interpreting the terms of the agreement and the
communications in-between, the Commission as well as the

Tribunal, after elaborately discussing the entire evidence,
have rendered a concurrent finding against the appellant.
The specific understanding between the parties was that
being a bidder, who has agreed to supply power from the
source of generation, can claim the Power Purchase
Agreement (in short ‘PPP’) rates only for the generated
power. For the delayed generation, to avoid the penalty,
appellant was permitted to make adhoc arrangements by
purchase of power from other sources. In case the rates
for purchased power is less than the PPA agreement rates,
appellant can claim only that. For the delayed supply from
the generating sources, while purchasing power from other
sources, appellant cannot trade and make any unjust
enrichment. Moreover, the communication with the
respondent would also indicate that it was the
understanding between the parties.
5. Under Section 125 of the Electricity Act, 2003, an
appeal to this Court lies only when there is a substantial
question of law, as required for a second appeal under
Section 100 of Code of Civil Procedure, 1908. Though the
appellant has raised 34 questions, they are actually
grounds for attacking the appellate order. Grounds for
attacking an order are different from substantial question
of law evolved in the appeal. On appreciation of the
correspondence between the parties during the subsistence

of the agreement, both the Commission and the Appellate
Tribunal have held against the appellant.
6. We, thus, do not find any substantial question of law
so as to exercise our jurisdiction under Section 125 of the
Electricity Act, 2003.
7. The appeal is, accordingly, dismissed.
8. No order as to costs.
......................J.
(KURIAN JOSEPH)
......................J.
(ROHINTON FALI NARIMAN)
New Delhi,
September 7, 2016.

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