IN THE HIGH COURT OF DELHI AT NEW DELHI

%

+

O.M.P.(COMM.) 271/2020 & I.A. 1559/2020

M/S NTPC VIDYUT

VYAPAR NIGAM LTD.

..... Petitioner

versus

M/S NEWTON SOLAR PVT. LTD.

..... Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr. Bharat Sangal, Sr. Adv. with Mr. R R

Kumar & Ms. Babita Kushwaha, Advs.

For the Respondents

: Mr. Deepak Khurana, Mr. Vineet Tayal &

Ms. Nishtha Wadhwa, Advs

AND

+

O.M.P. (COMM). 375/2020 & I.A. 2369/2020

M/S NEWTON SOLAR PVT. LTD.

……Petitioner

versus

M/S NTPC VIDYUT

VYAPAR NIGAM LTD. ……Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr. Deepak Khurana, Mr. Vineet Tayal &

Ms. Nishtha Wadhwa, Advs.

For the Respondents

: Mr. Bharat Sangal, Sr. Adv. with Mr. R R

Kumar & Ms. Babita Kushwaha, Advs.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002439

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

INTRODUCTION

1.

The parties have filed the present petitions under Section 34 of

the Arbitration and Conciliation Act, 1996 (hereinafter ‘the A&C

Act’) impugning an arbitral award dated 21.10.2019 (hereinafter ‘the

impugned award’) delivered by an Arbitral Tribunal comprising of

Justice (Retd.) G.N. Ray, Justice (Retd.) Usha Mehra, and Justice

(Retd.) G.B. Patnaik as the Presiding Arbitrator (hereinafter ‘the

Arbitral Tribunal’).

2.

The impugned award was rendered in the context of disputes

that have arisen between the parties in connection with a Power

Purchase Agreement dated 08.01.2011(hereinafter ‘the Agreement’).

THE CONTROVERSY

3.

The controversy in the present petition relates to the question

whether there was any delay on the part of Newton Solar Power

Private Limited (hereinafter ‘NSPPL’) in complying with its

obligations under the Agreement and whether it was liable to pay

liquidated damages for the said delay, if any. In addition, NTPC

Vidyut Vyapar Nigam Limited (hereinafter ‘NVVNL’) had also

claimed compensation for shortfall in supply of solar power, which

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002439

was disputed by NSPPL.

4.

The Arbitral Tribunal found that there was a delay of four days

in commissioning the solar project and NSPPL was liable to pay

liquidated damages quantified at 20% of the aggregate amount of the

performance bank guarantees. The Arbitral Tribunal further found

that NSPPL was not liable to pay any compensation for any shortfall

in supply of energy.

5.

Both the parties are aggrieved by the finding of the Arbitral

Tribunal regarding the delay in commissioning of the solar power

project and the consequent decision regarding levy of liquidated

damages. According to NVVNL, the delay is in excess of one month

and NSPPL is liable to pay an additional 40% of the aggregate amount

of the Performance Bank Guarantees as liquidated damages.

According to NSPPL, there is no delay in commissioning the solar

project in question and therefore, it is also aggrieved by the impugned

award. In addition, NVVNL is aggrieved by the decision of the

Arbitral Tribunal in absolving NSPPL of any liability on account of

shortfall in supply of solar power. Thus, both the parties have assailed

the impugned award to the extent that they are aggrieved.

FACTUAL CONTEXT

6.

In the month of July 2010, the Ministry of New & Renewable

Energy, Government of India (hereinafter ‘MNRE’) issued certain

guidelines for the selection of new grid connected solar power

projects. NVVNL was selected as a nodal agency for arranging and

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002439

purchasing solar power from Solar Power Developers (hereinafter

‘SPD’ in singular and ‘SPDs’ in plural).

7.

On 18.08.2010, NVVNL issued a request for selection

(hereafter ‘RFS’), which was followed by a request for proposal

(hereafter ‘RFP’) on 29.10.2010.

8.

Pursuant