Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 160
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2451 OF 2022
SOLAR ENERGY CORPORATION OF INDIA LIMITED (SECI) APPELLANT(S)
VERSUS
WIND FOUR RENERGY PRIVATE LIMITED & ORS. RESPONDENT(S)
J U D G M E N T
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1. The appellant – Solar Energy Corporation of India Limited
impugns the judgment and order dated 11.01.2022 passed by
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the Appellate Tribunal for Electricity at New Delhi,
whereby the appeal preferred by respondent no. 1 – Wind Four
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Renergy Private Limited was allowed, directing that the
period of 132 days, for which delay was to be condoned,
would commence from the date of the impugned judgment, that
is, 11.01.2022.
2.
Respondent no. 1 - WFRPL and respondent no. 3 – Power
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Trading Company India Limited had entered into five Power
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Purchase Agreements dated 21.07.2017. Vide each of the said
PPA, WFRPL had agreed to establish a 50 MW wind power unit
and generate to supply renewable (wind) power to PTC. The
1 “SECI”, for short.
2 “APTEL”, for short.
3 “WFRPL”, for short.
4 “PTC”, for short.
5 “PPA”, for short.
Signature Not Verified
Digitally signed by
Deepak Guglani
Date: 2024.03.02
14:00:23 IST
Reason:
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appellant – SECI is the implementing agency for the project,
being the nodal agency of the Central Government to promote
renewable energy such as solar, wind etc. The Scheduled
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Commercial Operation Date /commissioning was 04.10.2018, 18
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months from the date of the Letter of Award dated
05.04.2017. Further, WFRPL was entitled to an additional
time with liquidated damages and reduction in tariff of upto
9 months, that is till 05.07.2019. The commissioning
deadline or maximum period allowed for commissioning was 27
months from the date of LoA. Thus, the maximum period
allowed for commissioning was till 05.07.2019.
3.
It is an accepted and admitted position that the inter-state
transmission licensee – Power Grid Corporation of India
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Limited was unable to operationalise the Long Term Access ,
which was required and necessary to implement and comply
with the PPAs. The LTA was subsequently operationalised on
14.04.2019.
4.
In terms of the letter dated 22.10.2019 issued by the
Ministry of New & Renewable Energy, Government of India
certain concessions and extension of milestones in wind
power projects were granted. As per Clause 2(c) of the said
letter, the wind power projects shall be granted extension
in scheduled commissioning of the project for a period equal
to 60 days, subsequent to operationalisation of LTA. This is
the additional time to be provided to the
6 “SCOD”, for short.
7 “LoA”, for short.
8 “LTA”, for short.
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generator/developer to complete the commissioning activities
after the inter-state transmission system is ready.
5. It is conceded before us by the appellant that WFRPL would
be entitled to extension of the commissioning date till
13.06.2019 on account of the period of 60 days, as
stipulated in the letter dated 22.10.2019. Accordingly, the
additional time allowed with payment of liquidated damages
and the reduction of tariff and the maximum period allowed
for commissioning, that is, 9 months and 27 months from the
date of issue of LoA, will be computed.
6.
WFRPL had approached the Central Electricity Regulatory
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Commission , New Delhi, with the assertion that they were
not informed about the commissioning of the LTA by the
appellant till 22.11.2019. Not being aware as to the date of
operationalisation of the LTA, WFRPL contended that they
should be granted extension of time by 132 days, that is
till 21.11.2019.
7. The CERC, by its order dated 08.03.2021, accepted the
contention of WFRPL. Accordingly, the revised scheduled date
of commissioning was pushed to 23.10.2019. This order was
accepted by the appellant - SECI. The effect thereof would
be that the additional time of 9 months allowed after the
scheduled date with liquidated damages and reduction of
tariff and the last date of the maximum period allowed for
commissioning, that is, 27 months from the date of the LoA,
will accordingly be computed.
9 “CERC”, for short.
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8.
WFRPL, however, preferred an appeal before the APTEL, which
appeal, as stated above, has been allowed with the direction
that the period of 132 days, for which delay has been
condoned, would commence from the date of judgment in the
appeal by APTEL, that is, from 11.01.2022.
9.
We have heard learned counsel for the parties at some length
and are of the opinion that the impugned judgment and the
operative directions given therein, are unsustainable as
irrational as well as being contrary to the scheme and the
PPA.
10. It is an accepted position that there were 5 PPAs, which
have been entered into between the parties on 21.07.2017 of
50 MW each. The wind power generation units which were
subject matter of the 4 PPAs were located in the same
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vicinity as in case of the 5 PPA. This appeal and impugned
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order relates only to the 5 PPA. WFRPL has not been able to
operationalise this PPA by commissioning the wind power
generation units. The four other PPAs have been
operationised.
11. We have on record the letters of WFRPL, dated 25.03.2019,
stating that the project was at an advance stage of
completion and WFRPL shall be able to commission the project
on or before 31.05.2019, subject to readiness of evacuation
system. By another letter dated 25.04.2019 written by WFRPL,
they had stated that the evacuation systems have been made
ready for power evacuation with effect from 14.04.2019.
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Further, WFRPL shall be able to operationalise and
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commission the 5 power station by 30.06.2019. However, as
th
accepted before us by WFRPL, the 5 power generation unit
has not been operationalised even today.
12. Even otherwise, once WFRPL became aware and had knowledge
that LTA was functional, and they had been granted benefit
of 60 days in terms of the letter dated 22.10.2019 and 132
days in terms of the order of the CERC, the direction that
the period of 132 days shall commence from the date the
APTEL order is irrational. The objective and purpose of
timelines is to ensure early supply of green energy and
reduction of carbon footprint. Tariffs of green energy, it
is well known, have come down substantially.
13. In view of the aforesaid position, we set aside the impugned
judgment dated 11.01.2022. The order dated 08.03.2021 passed
by the CERC is restored and will operate and bind the
parties.
14. We are informed that pursuant to the impugned judgment, the
appellant – SECI had refunded Rs.10 crores to WFRPL, SECI
having encashed the performance bank guarantee. The
appellant - SECI would be entitled to recover the said
amount along with simple interest at the rate of 12% per
annum from the date when the payment was made till the
amount is refunded by WFRPL. In case the payment of Rs.10
crores along with interest as directed, is not refunded
within six months from the date of this order, the appellant
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- SECI will be entitled to recover Rs. 10 crores plus
interest as per the provisions of the Electricity Act, 2003.
Thus, in case of default and non-payment within the time
stipulated, the principal amount of Rs.10 crores, as well
as, simple interest at the rate of 12% per annum accrued
thereon, will be treated as electricity dues and accordingly
be recovered along with interest, as applicable, in
accordance with the Electricity Act, 2003 and the applicable
rules.
15. The appeal is allowed and disposed of in the above terms.
Pending application(s), if any, shall stand disposed of.
.................J.
(SANJIV KHANNA)
.................J.
(DIPANKAR DATTA)
NEW DELHI;
FEBRUARY 27, 2024.
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ITEM NO.8 COURT NO.2 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO. 2451 OF 2022
SOLAR ENERGY CORPORATION OF INDIA LIMITED (SECI) APPELLANT(S)
VERSUS
WIND FOUR RENERGY PRIVATE LIMITED & ORS. RESPONDENT(S)
(FOR ADMISSION and I.R. and IA No.45753/2022-EX-PARTE STAY and IA
No.46347/2022-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/
ANNEXURES)
Date : 27-02-2024 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE DIPANKAR DATTA
For Appellant(s)
Mr. C. Aryama Sundaram, Sr. Adv.
Mr. M.G. Ramachandran, Sr. Adv.
Ms. Anushree Bardhan, Adv.
Mr. Nikunj Dayal, AOR
Mr. Aneesh Bajaj, Adv.
For Respondent(s)
Mr. T. Mahipal, AOR
Mr. Alok Krishna Agarwal, Adv.
Mr. Naveen Chawla, Adv.
Mr. Mayank Bughani, Adv.
Ms. Prerna Singh, Adv.
Mr. Guntur Prabhakar, AOR
Mr. Ravi Kishore, Adv.
Mr. Guntur Pramod Kumar, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed and disposed of in terms of the signed
non-reportable judgment.
Pending application(s), if any, shall stand disposed of.
(DEEPAK GUGLANI) (R.S. NARAYANAN)
AR-cum-PS ASSISTANT REGISTRAR
(signed non-reportable judgment is placed on the file)
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