Anita Kapur ORDER
G.S. Singhvi, J. (Chairman)
1. Appellant-Gujarat Industries Power Company Limited has filed this appeal under Section 53B(2) read with Section 53B(1) of the Competition Act, 2002 (for short, 'the Act') for setting aside order dated 08.09.2015 passed by the Competition Commission of India (for short, 'the Commission') under Section 26(2), whereby Cases No. 55 and 56 of 2015 registered on the basis of an information's filed by the appellant and M/s. Gujarat State Fertilizers and Chemicals Limited under Section 19(1)(a) of the Act alleging contravention of Section 4 by Respondent No. 2 - GAIL (India) Ltd. were closed.
2. The appellant was incorporated in 1985 under the Companies Act, 1956 as a Public Limited Company. It is engaged in the business of power generation and is the first Independent Power Producer in India to have installed GE Frame VI and Frame IX Gas Turbine manufactured by BHEL. The appellant is operating on 310 (145+165) MW gas based Power Plant at Vadodara.
3. Respondent No. 2 is a Government of India Undertaking. It was also incorporated under the Companies Act, 1956. Respondent No. 2 is engaged in the distribution and marketing of gas in India and also other activities relating to gas including exploration, production, transmission, extraction, processing of natural gas and its related process, products and services. Respondent No. 2 has the longest pipelines for supply of gas in India and it has contributed to the growth and development of natural gas pipelines infrastructure and natural gas market in India. Its area of operation covers 16 States and two Union Territories. Respondent No. 2 buys Re-Liquefied Natural Gas (RLNG) from Petronet NLG Limited (PLL), which in turn purchases RLNG from Ras Laffan Liquefied Natural Gas Company Limited (II), Qatar (RasGas).
4. For running its plants, the appellant requires a continuous supply of gas of 1065 MMSCMD. It executed Gas Sales Agreement (GSA) with Respondent No. 2 on 12.02.2004. Duration of that agreement was five years with a provision for extension at the instance of either party. Articles 3, 7.4 to 7.7 and Articles 9.3 of GSA dated 12.02.2004, which have some bearing on the decision of this appeal, read as under :
"ARTICLE 3 DURATION OF AGREEMENT :
3.1 Subject to Article 17, this Agreement shall come into force on the date it is signed and shall remain in force till 0600 Hours of 01/01/2009 (Basic Period).
3.2 Either party may propose to extend the Agreement beyond the Basic Period by giving notice to the other party one year prior to expiry of this Agreement and shall be mutually discussed and amended accordingly. (Extension Period).
3.3 The term of this Agreement shall be extended beyond the Basic Period or the Extension Period, as the case may be, by a further period of 6 months (Recovery Period) in the event there is any Recovery Period Gas as per clause 7.2.2(vi) that may remain outstanding. Recovery Period will commence on the day immediately following eh last day of Basic Period or Extension Period as the case may be.
3.4 Following execution of this Agreement, the parties shall in accordance with article 17 use all reasonable endeavour to obtain satisfaction of any remaining conditions precedent to the effectiveness of the rights and obligations set out in this Agreement.
7.4 Delivery Rates
The Seller shall deliver and Buyer shall take during each Day at the Delivery Point the quantity of Gas at uniform hourly rates spread over a period of 24 Hour........