APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI (APPELLATE JURISDICTION)

APPEAL NO. 292 OF 2022 &

IA NO. 1010 OF 2022 Dated: 24th February, 2023 Present: Hon’ble Mr. Justice Ramesh Ranganathan, Chairperson Hon’ble Mr. Sandesh Kumar Sharma, Technical Member In the matter of:

1. Inox Green Energy Services Ltd.

Through its authorised Representative Inox Towers, Plot No. 17 Sector-16 A, Film City Noida – 201301.

2. Haroda Wind Energy Pvt. Ltd., 301, ABS Tower Old Padra Road Vadodara, Gujarat – 390007.

3. Khatiyu Wind Energy Pvt. Ltd., 301, ABS Tower Old Padra Road Vadodara, Gujarat – 390007.

4. Ravapar Wind Energy Pvt. Ltd., 301, ABS Tower Old Padra Road Vadodara, Gujarat – 390007.

5. Vigodi Wind Energy Pvt. Ltd., 301, ABS Tower Old Padra Road Vadodara, Gujarat – 390007 .… Appellant(s)

Versus

1. Central Electricity Regulatory Commission Through its Secretary

3^rd & 4^th Floor, Chanderlok Building, 36, Janpath, New Delhi – 110001

2. Solar Energy Corporation of India Limited Through its Managing Director, 6^th Floor, Plate – B, NBCC Office Block, Tower – 2, East Kidwai Nagar, New Delhi – 110023

3. Haryana Power Purchase Centre Through its Chief Engineer, Shakti Bhawan, Sector – 6, Panchkula, Haryana – 134 109

4. Uttar Pradesh Power Corporation Limited Through its Managing Director, Shakti Bhawan, 14 Ashok Marg, Lucknow, Uttar Pradesh – 226001 ... Respondent(s)

Counsel for the Appellant(s) : Mr. Gopal Jain, Sr. Adv.

Mr. Naveen Chawla Mr. Rishabh Kumar Thakur Mr. Mayank Bughania Counsel for the Respondent(s) : Mr. M. G. Ramachandran, Sr. Adv.

Ms. Anushree Bardhan Ms. Srishti Khindaria Mr. Aneesh Bajaj Ms. Surbhi Kapoor Ms. Tanya Sareen for R-2 O R D E R PER HON’BLE MR. JUSTICE RAMESH RANGANATHAN, CHAIRPERSON 1. This Appeal is preferred against the Order passed by the Central Electricity Regulatory Commission (for short “CERC”) in IA No. 23 of 2022 in 95/MP/2022 dated 29.06.2022. The Appellant herein filed an IA before the CERC seeking interim directions restraining the Respondents from taking coercive action against them. They filed IA No. 23 of 2022 thereafter to restrain the Respondents from encashing the Bank Guarantee, furnished by them, till final adjudication of the Petition by the CERC.

2. The 2^nd Respondent–Solar Energy Corporation of India Limited (for short “SECI”) invited proposals on 31.05.2017 for setting up Grid connected wind power projects, on “build own operate” basis, for an aggregate capacity of 1000 MW. The Appellant was issued a letter of award for setting up a 250 MW wind power project on 03.11.2017. A Power Purchase Agreement (for short “PPA”) was entered into on 21.07.2017, and the Haryana Electricity Regulatory Commission (for short “Commission”) on 24.11.2017 adopted the tariff while disposing of the earlier Petition. The 2^nd Respondent entered into a Power Sale Agreement (for short “PSA”) with the 3rd Respondent–Haryana Power Purchase Centre (for short “HPPC”) and the 4^th Respondent – Uttar Pradesh Power Corporation Limited (for short “UPPCL”) in respect of the power generated from this project. On 03.12.2019, the Commission adopted the tariff qua the Appellant, while disposing of the Petition filed by the 2^nd Respondent. In the Petition presently pending before the CERC, the Appellant herein had sought a declaration that execution of the project, awarded to them, had become commercially and physically impossible on account of force majeure events, and should therefore be terminated.

3. After noting the rival contentions, the CERC, in the Order under appeal, held that, as per the PPA dated 27.12.2027, the SCOD of the project was 03.05.2019; on the Appellant’s request, the SCOD was extended by SECI on two occasions, the first up to 28.01.2021 and thereafter up to 28.06.2021; the total extension of time granted for SCOD was 787 days; and SECI had informed the Appellant on 13.08.2021 that, since the project was not commissioned as on 28.06.2021, liquidated damages were applicable with effect from 29.06.2021.

4. The CERC took note o