- (1.) Reliance Infrastructure Limited (hereinafter referred to as "RInfra") submitted a Petition under Affidavit on 18 February, 2014 under Sections 142 and 146 of the Electricity Act, 2003 (hereinafter referred to as "Electricity Act") against Wardha Power Company Limited (hereinafter referred to as "WPCL").
(2.) The Petitioner (RInfra) made the following prayers: " (a) pass an order restraining the Respondent, its agents and servants, from invoking the Letter of Credit in the circumstances set out hereinabove in light of the order dated 15th January 2014 in Case No.8 of 2013 (b) pass an order restraining the Respondent, its agents and servants, from invoking the Letter of Credit in the circumstances set out hereinabove, i.e. in the event of the Respondent reducing the availability contrary to the terms of the PPA; (c) pass an order and injunction restraining the Respondent from receiving payment under the Letter of Credit invoked on 13th February 2014; (d) pass ex -parte ad -interim order in terms of prayer (c) above; and grant such further and other relief(s) as this Hon'ble Commission may deem (e) appropriate in the facts and circumstances of the case."
(3.) In its Petition, RInfra submitted as under: 3.1. RInfra and WPCL entered into a Power Purchase Agreement (hereinafter referred to as "PPA") on 4 June, 2010 for supply of an Aggregate Contracted Capacity of 260 MW of power to RInfra for a period of 3 (three) years on terms and conditions more specifically set out therein. 3.2. The recitals to the PPA show, inter alia, that (i) RfP for procurement of power for medium -term under Case 1 route outlined in the Guidelines was followed by RInfra for procurement of power; (ii) WPCL was selected by RInfra as "the Seller for sale and supply of electricity in bulk to the Procurer, for the Aggregate Contracted Capacity (as defined hereunder) of 260 MW" in accordance with the terms of the agreement. 3.3. RInfra submitted that the provisions in the PPA clearly show that RInfra is entitled to an Aggregate Contracted Capacity of 260 MW from WPCL. Further, in terms of Article 5.1.1 of the said PPA, it is the obligation of WPCL to supply such Aggregate Contracted Capacity notwithstanding any Scheduled Outage or Unscheduled Outage of its generating units and/or of the transmission system. 3.4. RInfra submitted that Article 5.3.2 of the said PPA, inter alia, provides that it is only in the event of the declared capacity being less than the sum total of all contracted capacities of WPCL's Power Station (having duration of contracts in excess of one year), can the available capacity to RInfra for dispatch be reduced proportionately. 3.5. RInfra submitted that, however, contrary to the terms and provisions of the PPA, WPCL was wrongfully reducing the availability to RInfra and scheduling power to third parties. 3.6. WPCL filed a Petition in Case No.38 of 2012 before the Commission, inter alia, seeking the direction to RInfra to release the aforesaid payment. RInfra submitted that the Commission in its Order dated 5 June, 2013 in Case No. 38 of 2012 clearly held that Procurer (RInfra) has unambiguous right and exclusivity on the entire Aggregate Contracted Capacity and that if a part of the available capacity corresponding to the contracted capacity is not supplied by the Seller (WPCL) on its own volition, then the Seller has no right to receive any capacity charges from the Procurer for such available capacity not supplied by the Seller. 3.7. RInfra further submitted that contrary to the terms and conditions of the PPA, WPCL continued to reduce the availability to RInfra of the Aggregate Contracted Capacity of 260 MW for the subsequent period, i.e., April 2012 onwards. 3.8. RInfra filed a Petition (Case No. 8 of 2013) before the Commission for adjudication of dispute under Section 86(1)(f) of the Electricity Act arising out of issues pertaining to obligation of Seller to supply Contracted Capacity under provisions of Article 5 (Sub - Article 5.1.1) of the PPA dated 4 June, 2010. 3.9. RInfra added that the Commission passed the Order dated 5 June, 2013 in Case No. 38 of 2012 in favour of RInfra. RInfra submitted that in view of findings in the said Order, the Petitioner deducted Rs. 23.97 Crore (Rs.21.94 Crore for the period April, 2012 to November, 2012 ­ Letter of Credit invoked by Respondent and interest of Rs.2.02 Crore), as the same principle was applicable for other periods. The said amount was deducted from the payment to be made to WPCL on 3 July, 2013. Subsequently, WPCL invoked the Letter of Credit for Rs. 23.97 Crore deducted by RInfra on 13 July, 2013. 3.10. During the hearing held on 12 July, 2013 in Case No.8 of 2013, RInfra submitted that WPCL had invoked Letter of Credit, even after the Commission's Order dated 5 June, 2013 in the Case No.38 of 2012, which dealt with a similar matter, but for different time periods. RInfra submitted that, however, the Commission did not issue any interim Order in view of pending proceedings in Case No. 8 of 2013. 3.11. RInfra submitted that in view of the same, RInfra stopped deducting the amount from the bill for June, 2013 onwards towards reduction in availability by WPCL in spite of continued arbitrary revision of schedule and reduced availability for the period June 2013 to December 2013, contrary to settled position as per Judgments and Orders of this Commission. 3.12. RInfra submitted that the Commission, vide its Order dated 15 January 2014 in Case No. 8 of 2013, had held that WPCL has incorrectly invoked the Letter of Credit and directed RInfra to adjust the amount along with interest at SBI Base Rate in the monthly energy bill issued by WPCL. In view of the said ruling by the Commission, RInfra deducted total amount of Rs 51,72,96,693 along with interest for the period April, 2012 to November, 2012 and June, 2013 to December, 2013 in the payment of monthly bill for December, 2013. The amounts pertaining to December, 2012 to May, 2013 were already deducted from the respective monthly bills. 3.13. RInfra added that in spite of the Orders in Case No. 38 of 2012 and Case No. 8 of 2013, WPCL invoked the LC for Rs. 36,66,48,785 for the period December, 2012 to December, 2013 vide its letter dated 13 February, 2014 to ICICI Bank. RInfra submitted that the invocation by WPCL is clearly contrary to the terms of the PPA and also in violation of Orders of the Commission in Case No. 38 of 2012 and Case No. 8 of 2013. 3.14. RInfra submitted that it is entitled for such deduction in subsequent months on same principles and is not expected to approach the Commission for different time periods. RInfra further added that the grounds of the deductions/ computation for June, 2013 to December, 2013 have not been disputed by WPCL. 3.15. RInfra submitted that WPCL has breached the said principles adopted by the Commission. RInfra added that the invocation of the Letters of Credit is clearly fraudulent and WPCL is not entitled to invoke the same. The purported invocation is contrary to the Letter of Credit inasmuch as there cannot be a Certificate issued by WPCL that the bill was in accordance with the PPA. RInfra submitted that there was no question of such monthly bills having remained unpaid as the supply was not as per the PPA. The Commission had passed two Orders in Case No. 38 of 2012 and Case No. 8 of 2013 in this regard which had not been informed to ICICI Bank. WPCL could not have made a statement that the bills were in accordance with the PPA. 3.16. RInfra submitted that it is entitled to an Order from the Commission restraining WPCL from invoking the Letter of Credit in the circumstances set out hereinabove, i.e., in the event of WPCL reducing the availability contrary to the terms of the PPA and more so after the Orders of the Commission in Case No. 8 of 2013 and Case No. 38 of 2012. Infra RInfra also added that it is entitled to an Order and injunction from the Commission restraining WPCL from receiving payment under the Letter of Credit. ;