CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY LIMITED Vs. SAISUDHIR ENERGY (CHITRADURGA) PRIVATE LIMITED AND ORS.

JUDGEMENT

(1.) CHAMUNDESHWARI Electricity Supply Company Limited ("Chamundeshwari"), the appellant herein was the Respondent before the Karnataka Electricity Regulatory Commission ("the State Commission"). M/s. Saisudhir Energy (Chitradurga) Private Limited ("Saisudhir"), the respondent herein was the petitioner before the State Commission. In the instant appeal, Chamundeshwari has challenged Order dated 28/1/2015 passed by the State Commission. By the impugned order, the State Commission has, inter alia, directed Chamundeshwari to restore the performance security furnished by Saisudhir by way of Bank Guarantee. In this interim application, Chamundeshwari has sought stay of the impugned order.

(2.) FOR the disposal of this interim application, it will be necessary to set out a few facts. Saisudhir is a special purpose vehicle, which was allotted a 10 MW capacity solar power project to be set up in Chitradurga District in Karnataka. On 30/8/2012, Saisudhir entered into a PPA with Chamundeshwari, a distribution company. Under the PPA, scheduled commissioning date of the project was to be achieved on or before 28/1/2014. Saisudhir requested Chamundeshwari to grant extension of time upto 26/8/2013 for achieving conditions precedent and upto 26/5/2014 for achieving commercial operation. By letter dated 17/5/2013, Chamundeshwari extended the time. The parties entered into a supplemental PPA dated 28/5/2013 incorporating the extended date for fulfilling the conditions precedent and for achieving the commercial operation. By letter dated 6/2/2014, KPTCL granted provisional evacuation approval to Saisudhir with the condition that evacuation of power and synchronization approvals for the project would be sanctioned only after commissioning of the 220 KV lines between Birenhalli - Thallak and Hiriyur - Gowribidanur. Saisudhir furnished Bank Guarantee for an amount of Rs. 24.90 crores in favour of Chamundeshwari as performance security. Saisudhir again wrote a letter dated 5/4/2014 requesting Chamundeshwari to grant extension of time. In the said letter, Saisudhir pointed out the numerous difficulties faced by it in obtaining different approvals. Saisudhir also pointed out that the evacuation of power was possible only after construction of 220 KV transmission line by KPTCL. Chamundeshwari agreed to extend the time upto 27/9/2014 vide its letter dated 17/5/2014. However, in the said letter, it stated that due to delay in achieving the commercial operation, the tariff for the energy would be Rs. 2.39 per Kwhr as per Article 12.2 of the PPA. Saisudhir requested that earlier tariff of Rs. 8.49 be retained as the delay was not attributable to it but it was due to the non -commissioning of 220 KV transmission line by KPTCL. Chamundeshwari, however, maintained its stand taken in letter dated 17/5/2014. Apprehending that Chamundeshwari may invoke the performance security furnished by it, Saisudhir filed a petition before the State Commission praying inter alia that Chamundeshwari be directed to extend the scheduled commissioning date and also not to appropriate any portion of the performance security furnished by Saisudhir. During the pendency of the petition, Chamundeshwari encashed the Bank Guarantee.

(3.) WE have heard at some length Mr. Naganand, senior advocate for Chamundeshwari and Mr. Rarnji Srinivasan, senior advocate for Saisudhir.