O.M.P. (COMM.) 164/ 2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 09.08.2021

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O.M.P. (COMM.) 164/2021 & IA No. 5828/2021

NTPC VIDYUT VYAPAR NIGAM LIMITED ..... Petitioner

versus

SYMPHONY VYAPAR PRIVATE LIMITED

& ANR.

..... Respondents

Advocates who appeared in this case:

For the Petitioner

: Mr Rituraj Biswas and Mr Rituraj

Choudhary, Advocates.

For the Respondents : Ms Mamta Tiwari, Ms Swati Sinha, Ms

Taruna A. Prasad and Mr Aman Bhatnagar,

Advocates.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

NTPC Vidyut Vyapar Nigam Limited (hereinafter „NVVNL‟)

has filed the present petition under Section 34 of the Arbitration and

Conciliation Act, 1996 (hereinafter the „A&C Act‟) impugning an

arbitral award dated 20.11.2020 (hereinafter „the impugned award‟)

rendered by an Arbitral Tribunal comprising of Justice (Retired) V.N.

Khare, former Chief Justice of India, Mr Ambarish Dave and Justice

(Retired) D.P. Wadhwa, former Judge of the Supreme Court of India

as the Presiding Arbitrator.

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O.M.P. (COMM.) 164/ 2021

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2.

The impugned award was rendered in the context of disputes

that had arisen between NVVNL and respondent no.1 (hereinafter

„Symphony‟) in connection with a Power Purchase Agreement

(hereinafter the „PPA‟) entered into between NVVNL and Symphony.

3.

Essentially, the dispute between NVVNL and Symphony are

centered around the question whether NVVNL is entitled to recover

liquidated damages from Symphony in terms of clause 4.6 of the PPA.

NVVNL claims that it is entitled to recover ₹2,87,77,000/- (Rupees

Two Crores, Eighty-Seven Lakhs, Seventy-Seven Thousand only) as

liquidated damages being 10% of the Performance Bank Guarantee

furnished by Symphony, as according to NVVNL, Symphony had

failed to commission the solar power plant for generating 10 MW

capacity on or before the Scheduled Commissioning Date.

4.

According to NVVNL, Symphony had commissioned 5 MW

capacity on or before 26.02.2013 (the Scheduled Commissioning

Date) and commissioned the balance 5 MW on 27.02.2013. NVVNL

claimed that it was thus, entitled to recover half of 20% of the

Performance Bank Guarantee in terms of Clause 4.6 of the PPA.

Symphony disputed the aforesaid claim as according to Symphony, it

had commissioned the Solar Power Generating project before the

Scheduled Commissioning Date. It claimed that it had completed and

installed 10 MW of solar power generating capacity on 21.02.2013.

5.

The Arbitral Tribunal held in favour of Symphony and accepted

its contention that it had completed and installed the solar power plant

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O.M.P. (COMM.) 164/ 2021

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with 10 MW capacity on or before the Scheduled Commissioning

Date of 26.02.2013. Accordingly, the Tribunal held that NVVNL was

not entitled to recover any liquidated damages. The Arbitral Tribunal

further held, in any event, NVVNL could not recover damages under

clause 4.6 of the PPA without establishing that it had suffered any

loss.

6.

Accordingly,

the

Arbitral

Tribunal

directed

that

the

Performance Bank Guarantee furnished by Symphony be discharged.

It also awarded costs of ₹1,08,66,000/- (Rupees One Crore Eight Lacs

and Sixty-Six Thousand only) in favour of Symphony.

7.

It is contended on behalf of NVVNL that the impugned award is

patently erroneous as it is contrary to the terms of the PPA. It is

contended on behalf of NVVNL that the impugned award disregards

the Minutes of the Meeting of Commissioning Committee of

25.02.2013/26.02.2013 – which recorded that Symphony had

electrically connected only 7.04 MW capacity as on 25.02.2013 – and

therefore, the impugned award is patently illegal and is liable to be set

aside.

Factual Background

8.

The Government of India launched the Jawaharlal Nehru

National Solar Mission (hereinafter „JNNSM‟) with the obj