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THE APPELLATE TRIBUNAL FOR ELECTRICITY

AT NEW DELHI

(APPELLATE JURISDICTION)

IA NO.384 OF 2017 IN APPEAL NO.161 OF 2017

AND

IA NO.383 OF 2017 IN APPEAL NO.162 OF 2017

Dated : 29^TH MAY, 2017.

Present:

Hon’ble Mrs. Justice Ranjana P. Desai, Chairperson

Hon’ble Mr. I. J. Kapoor, Technical Member.

IA NO.384 OF 2017 IN APPEAL NO.161 OF 2017

SHAPOORJI

PALLONJI

ENERGY

(GUJARAT) PRIVATE LIMITED,

SP Centre, 41/44, Minoo Desai Marg,

Colaba, Mumbai – 400 005.

IN THE MATTER OF:-

)

)

)

) … Applicants

AND

1. GUJARAT

ELECTRICITY

REGULATORY COMMISSION,

6^th Floor, Gift One, Road 5C, Zone 5,

Gift City, Gandhinagar - 382355.

)

)

)

)

2.

GUJARAT URJA VIKAS NIGAM

LIMITED,

Sardar Patel Vidyut Bhavan, Race

Course, Vadodara – 390 007.

)

)

)

) ... Respondents

Counsel for the Applicant(s)

Mr. Amit Kapur.

Mr. Malcom Desai

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Counsel for Respondent(s)

Mr. M.G. Ramachandran

Ms. Ranjitha Ramachandran

Mr. Shubham Arya

Ms. Poorva Saigal for R-2

ALONG WITH

IA NO.383 OF 2017 IN APPEAL NO.162 OF 2017

ESSAR POWER GUJARAT LIMITED,

EPGL House, 11, K.K. Marg, Mahalaxmi,

Mumbai – 400 034.

IN THE MATTER OF:-

)

)

) … Applicants

AND

1.

GUJARAT

ELECTRICITY

REGULATORY COMMISSION,

6^th Floor, Gift One, Road 5C, Zone 5,

Gift City, Gandhinagar - 382355.

)

)

)

)

2.

GUJARAT URJA VIKAS NIGAM

LIMITED,

Sardar Patel Vidyut Bhavan, Race

Course, Vadodara – 390 007.

)

)

)

) ... Respondents

Counsel for the Applicant(s)

Mr. Sanjay Sen, Sr. Adv.

Mr. Nisarg Desai,

Mr. Munjaal Bhatt,

Mr. Mahesh Agarwal

Ms. Neeha Nagpal

Counsel for Respondent(s)

Mr. M.G. Ramachandran

Ms. Ranjitha Ramachandran

Mr. Shubham Arya

Ms. Poorva Saigal for R-2

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J U D G M E N T

PER HON’BLE (SMT.) JUSTICE RANJANA P. DESAI - CHAIRPERSON:

1. Appeal No.161 of 2017 is filed by Shapoorji Pallonji

Energy (Gujarat) Pvt. Ltd (“Shapoorji”) being aggrieved by

order dated 18/05/2017 passed by the Gujarat Electricity

Regulatory Commission (“the State Commission”) on IA No.3

of 2017 filed by Shapoorji in its Petition No.1511 of 2015. IA

No.384 of 2017 is filed along with this Appeal by Shapoorji for

interim reliefs.

2. Appeal No.162 of 2017 is filed by Essar Power Limited

(“Essar Power”) being aggrieved by order dated 18/05/2017

passed by the State Commission on IA No.4 of 2017 filed by

Essar Power in its Petition No.1532 of 2015. IA No.383 of

2017 is filed along with this Appeal by Essar Power for interim

reliefs. Respondent No.1 is the State Commission and

Respondent No.2 is the Gujarat Urja Vikas Nigam Ltd.

(“GUVNL”).

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3. Both these interim applications can be disposed of by a

common order because they involve common question of law

relating to invocation and encashment of Bank Guarantee.

Facts are also similar.

4. Some background of both the applications needs to be

given because the counsel appearing for the parties have

insisted that these cases are clearly distinguishable from the

facts of long line of judgments of the Supreme Court which lay

down how limited is the interference of the courts with

invocation and encashment of Bank Guarantee. Counsel

stated that analysis of facts and careful perusal of the relevant

documents is necessary because that would make it clearly

evident that the Bank Guarantees of these cases are

conditional.

5. We shall first turn to Shapoorji’s case. On 15/5/2010

Shapoorji entered into a PPA with GUVNL for supply of 800

MW Power on the terms and conditions stated in the PPA. The

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terms include the fulfilment of Conditions Subsequent by

Shapoorji as provided in Article 3.1. Shapoorji could not fulfil

the Conditions Subsequent. According to Shapoorji its

inability to fulfil the Conditions Subsequent is solely due to

circumstances beyond i