Facts
The Appellant, a generating company, entered into a Power Purchase Agreement (PPA) with PTC India Ltd on 01.11.2013 for the supply of 250 MW of power, which was subsequently sold back-to-back to Rajasthan Discoms (Respondents 2-5)
Source reference: p. 7The Scheduled Delivery Date (SDD) was fixed as 30.11.2016
Source reference: p. 7While the Appellant’s plant was ready in 2015, it only had Long-Term Access (LTA) for 45 MW to the Northern Region; the remaining 205 MW required fresh LTA/MTOA applications due to a change in region and quantum exceeding 100 MW
Source reference: p. 17, 20The Appellant delayed filing a fresh LTA application until 25.02.2016
Source reference: p. 22On 30.11.2016, the Appellant commenced supply of only 45 MW, claiming "Force Majeure" for the balance 205 MW due to delayed transmission infrastructure
Source reference: p. 25, 27Full supply of 250 MW commenced on 01.04.2017
Source reference: p. 31The Appellant sought to shift the SDD and the "1st Contract Year" to 01.04.2017 to avail higher tariffs, which the CERC rejected in the impugned order dated 27.11.2019
Source reference: p. 32-33Issues
1. Whether the delay in operationalization of the LTOA/MTOA constitutes a Force Majeure event under Article 9.3.1 of the PPA.
Source reference: p. 52-53 / para. 222. Whether the Scheduled Delivery Date (30.11.2016) is liable to be shifted to 01.04.2017 on account of the alleged Force Majeure.
Source reference: p. 53 / para. 22Law Applied
Connectivity Regulations, 2009 (Regulation 12), which mandates a fresh application for LTA if there is a change in region or a quantum change exceeding 100 MW
Source reference: p. 4-5Article 9.3.1 (Force Majeure), which requires that the event must be beyond the "reasonable control" of the party and could not have been avoided by "reasonable care" or "Prudent Utility Practices"
Source reference: p. 62-63Reasoning
The Court applied the Connectivity Regulations, 2009 (Regulation 12), which mandates a fresh application for LTA if there is a change in region or a quantum change exceeding 100 MW
Source reference: p. 4-5Regarding the contract, the Court interpreted Article 9.3.1 (Force Majeure), which requires that the event must be beyond the "reasonable control" of the party and could not have been avoided by "reasonable care" or "Prudent Utility Practices"
Source reference: p. 62-63Holding
The court held that commencement of partial power supply under PPA constitutes "Commencement of Supply" defining the first contract year.
CERC rejected the Appellant's request to shift the SDD and the "1st Contract Year" to 01.04.2017 in the impugned order dated 27.11.2019.
Source reference: p. 32-33Original Court PDF
Maruti Clean Coal and Power LimitedvsCentral Electricity Regulatory Commission & Ors
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