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 3 rd 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 of the Appellant’s contention that execution of the project had become impossible on account of force majeure events, as defined in Article-11, which were beyond their control i.e. (1) non-availability of the requisite infrastructure (connectivity, common infrastructure, land); (2) non-availability of requisite fund; (3) non-availability of WPGS and allied equipment on account of the Covid-19 pandemic; SECI had extended SCOD up to 28.06.2021 which was 12 months beyond the original SCOD i.e.

03.05.2019 due to force majeure events; Article 4.5 and 13.5 of the PPA provided for an exit option in the event of extended force majeure ; right to terminate was crystallised in case force majeure events existed beyond 9/12 months and, as such, SECI could not invoke the Bank Guarantee; Article

13.5 provided that, in the event of termination due to extended force majeure events, the same shall be “without further liability” to either party; contrary to the terms of the PPA, SECI had, vide letter dated 13.08.2021, levied liquidated damages with effect from 29.06.2021; the PPA terms could not be violated when the matter was pending adjudication; the law of Bank Guarantee, in relation to jurisdiction over a bank so as to injunct them from making payment, is well settled; in the present case, the Bank Guarantee had not been invoked by SECI, and the bank was not involved at all; and hence there was a prima facie case in their favour to restrain SECI from taking coercive action.

5. The CERC thereafter not