The court affirmed that while retention of amounts by PTC was justified due to the Corporate Debtor's failure to fulfill contractual obligations, invoking the Performance Security Deposit was unwarranted as the Operational Security Deposit had already been appropriated.

ORDER

ABBREVIATIONS

BPDB Bangladesh Power Development Board

BPDB-PPA BPDB – Power Purchase Agreement

CD Corporate Debtor

COC Committee of Creditors

OSD Operational Security Deposit

PPA Power Purchase Agreement

PSD Performance Security Deposit

PTC PTC India Limited

PTC-PPA PTC - Power Purchase Agreement

SEIL Sembcorp Energy India Limited

Note: Any reference in the foot-notes refers to the documents submitted with IA No. 1573 of 2022, unless specified otherwise

1. The sequence of events leading to the filing of the present applications began with the execution of a Power Purchase Agreement (PPA) Date of Order : 06.03.2025 between PTC, PTC India Ltd and BPDB, Bangladesh Power Development Board  on 09.10.2018 (BPDB-PPA), Pages 66 to 146 of the Application. Under this agreement, BPDB committed to the long-term purchase of Net Energy Output corresponding to a Contracted Capacity of 200MW from PTC until 31.05.2033, in exchange for Capacity Charges and Energy Charges, as stipulated in the agreement.

2. Subsequently, on 29.10.2018, another PPA (PTC-PPA), Pages 25 to 65 of the Application was executed between PTC and the Corporate Debtor (CD), with its tenure aligned to the BPDB-PPA i.e. till 31.05.2033. The terms of the PTC-PPA stipulated that PTC would pay the CD a tariff equal to the amount received from BPDB, minus a trading margin of 8.5 paise per kWh., Article 6 of PTC-PTA: Page 39 of the Application

3. Under the BPDB-PPA, PTC was required to provide a Bank Guarantee of USD 3.6 million as a Performance Security Deposit (PSD). Similarly, under the PTC-PPA, the CD had to furnish a Bank Guarantee of Rs 27 Crores as a PSD to ensure compliance with the agreement. This PSD was to terminate once the CD deposited the Operational Security Deposit (OSD), Equivalent to six months of capacity charge payment at the prevailing exchange rate of USD/INR (Approx Rs 136 crores) with PTC within 23 days from the supply commencement date. PTC, in turn, was responsible for depositing the OSD to BPDB within 30 days of the supply commencement date, enabling the termination of the PSD provided to BPDB.

4. The electric power supply to BPDB was scheduled to commence from 01.01.2020

5. In the meanwhile, the CD was admitted into CIRP on 07.11.2019, at which time the power plants of the CD “had not been operational for more than two years”, Para 7 of Written Submissions of the Applicant. Since the CD under CIRP was not in a position to meet its obligations under the PTC-PPA, an alternate arrangement allowed under BPDB-PPA was pursued and an ‘Alternate Supplier’ Sembcorp Energy India Ltd (SEIL) was identified. Tripartite Agreements, First Tripartite Agreement was executed on 14.03.2020 for a period up to 31.03.2020. Later, three more similar Agreements were executed for every subsequent quarter on 22.06.2020, 05.08.2020 and 02.11.2020 extending the date for alternate power supply by SEIL till 31.12.2020: All agreements enclosed between Pages 177 – 238 of the Counter were then executed between PTC, SEIL and the CD to supply the contracted capacity on behalf of the CD. This alternate arrangement was permissible under BPDB-PPA for maximum of one year.

6. Under this arrangement, SEIL supplied electricity to BPDB, from 07.02.2020 to 31.12.2020, and was to be paid tariff, USC 5.65/KWH for the period of Jan-Mar’2020, USC 5.70/KWH for the period of Apr-Jun’2020, USC 5.23/KWH for the period of Jul-Dec’2020 in the terms of Tripartite Alternate Supply Agreements. This arrangement also required