APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI (APPELLATE JURISDICTION)

APPEAL NO. 690 OF 2023 & IA NO. 1724 OF 2024 Dated: 22^nd January, 2025 Present: Hon’ble Mr. Justice Ramesh Ranganathan, Chairperson Hon’ble Ms. Seema Gupta, Technical Member (Electricity)

In the matter of:

ReNew Wind Energy (TN) Pvt. Ltd. .... Appellant(s)

Versus Central Electricity Regulatory Commission & Anr. .... Respondent(s)

Counsel on record for the Appellant(s) : Amit Kapur Anupam Varma Rahul Kinra Girdhar Gopal Khattar Isnain Muzamil Prithu Chawla Aditya Ajay Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 2 ORDER PER HON’BLE MR. JUSTICE RAMESH RANGANATHAN, CHAIRPERSON IA NO. 1724 OF 2024 (For interim relief)

I. INTRODUCTION:

Appeal No. 690 of 2023 has been filed against the order passed by the CERC in Petition No. 63/MP/2021 dated 04.05.2023. The reliefs sought by the Appellant in the present appeal are:- (a) to set aside the Impugned Order dated 04.05.2023 passed by the Commission in Petition No. 63/MP/2021; (b) hold and declare that the Transmission Agreement for Connectivity dated 07.08.2018, LTA Agreement dated 06.09.2018 and TSA dated 06.09.2018 stand frustrated on account of force majeure (under the transmission agreements) and impossibility/frustration in terms of Section 56 of the Contract Act; (c) hold and declare that no relinquishment charges or any other charges or penalties are payable by the Appellant; and/or (d) direct CTUIL to return Bank Guarantee No. 002GM01182260001 dated 14.08.2018 for Rs. 5.00 Crores (Rupees Five Crores only) along with its subsequent amendment dated 29.06.2020 submitted by the Appellant in terms of the Transmission Agreement for Connectivity dated 07.08.2018; (e) direct CTUIL to return Bank Guarantee No. 002GM01182740001 dated 01.10.2018 for Rs. 13.25 Crores (Rupees Thirteen Crore Twenty-Five Lacs only) along with its subsequent amendments dated 27.11.2018 and 03.08.2020 submitted by Appellant in terms of the LTAA dated 06.09.2018; and/or (f) pass any such other and further reliefs as this Hon'ble Tribunal deems just and proper in the nature and circumstances of the present case.

The Appellant filed the present IA No. 1724 of 2024 in Appeal No.

690 of 2023 seeking the following reliefs: (a) stay the directions of Ld. CERC contained in Para 96 of the impugned order and bill dated 12.03.2024 raised on the applicant by CTUIL seeking payment of Rs.16.84 Crores, pursuant to such directions; (b) direct CTUIL not to take any coercive action against the applicant including invocation of connectivity BG dated 14.08.2018 and LTA BG dated 01.10.2018; and (c) pass such further order as this Tribunal may deem just and necessary in the facts and circumstances of the case.

II. CAN INVOCATION OF BANK GAURANTEE BE STAYED?

We shall first examine Prayer (b) in IA No. 1724 of 2024 which is to direct CTUIL not to take any coercive action for invocation the LTAA Bank Guarantee for Rs.13.25 Crores issued, at the behest of the Appellant, by the Bank in favour of the Respondent. It is not in dispute that the subject Bank Guarantee is an unconditional Bank Guarantee. The mere fact that the said Bank Guarantee refers to the bid process and to the underlying contract would not make such a Bank Guarantee conditional.

In North Karanpura Transmission Co. Ltd. v. CERC, 2023 SCC OnLine APTEL 7 (Order in Appeal No. 188 of 2022 dated 23.02.2023), this Tribunal held as under:-

“(I) A bank guarantee is an independent and distinct contract, between the bank and the beneficiary, and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Subject to limited exceptions, the beneficiary cannot be restrained from encashing the bank guarantee even if the dispute, between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in the performance of the contract. (Ansal Engg. Proj