Bombay High Court
Maharashtra State Electricity Board vs Coastal Gujarat Power Limited And 4 ... on 5 September, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
501-WPL-28222-2022.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 28222 OF 2022
Maharashtra State Electricity Distribution ...Petitioner
Company Ltd
Versus
Coastal Gujarat Power Ltd and Ors ...Respondents
Mr Rafique Dada Senior Advocate, with Deepa Chawan, Ravindra
Chille & Rahul Sinha i/b DSK Legal for Petitioner.
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 5th September 2022 PC:-
1. The matter is taken up on the production board. It was mentioned this morning for urgent relief.
2. The Respondents have been given urgent notice. Mr Dada, learned Senior Counsel for the Petitioner, points out that there a dispute regarding the Short Term Open Access arrangement between the Petitioner, the Maharashtra State Electricity Distribution Company Ltd, and Respondent No. 1 Coastal Gujarat Power Ltd or CGPL. This is a Special Purpose Vehicle or SPV established to implement and develop a 4000 M W ultra mega Page 1 of 3 5th September 2022 ::: Uploaded on - 05/09/2022 ::: Downloaded on - 06/09/2022 14:27:01 ::: 501-WPL-28222-2022.DOC project at Mundra, district Kutch, Gujarat. The 2nd Respondent, Tata Power Company Ltd, is the holding company of CGPL.
3. There was a power purchase agreement between MSEDCL and CGPL. Disputes have arisen inter alia regarding the price of the power supply. We are not concerned with those disputes, at least today.
4. The short point today is that there was a Letter of Credit in the amount of about Rs 19.88 crores in favour of CGPL issued by MSEDCL. On account of the disputes between the parties CGPL invoked the LC. MSEDCL actually paid the amount covered by the LC, Rs 19.66 crores, though under protest to CGPL/Tata Power on 30th August 2022, one day after CGPL invoked the LC on 29th August 2022.
5. Mr Dada states that despite this payment having admittedly and demonstrably being made, CGPL has not yet communicated to the 4th Respondent, Canara Bank (which issued the LC) not to act further on the invocation. He submits, and we prima facie think correctly, that the result will be that CGPL will get paid twice over; one from the without prejudice under protest payment made by MSEDCL and, second, and inevitably, by Canara Bank acting upon the invocation.
6. MSEDCL has already moved the Central Electricity Regulatory Commission, the 3rd Respondent, but that Commission is not scheduled to sit at least until tomorrow 6th September 2022.
Page 2 of 35th September 2022 ::: Uploaded on - 05/09/2022 ::: Downloaded on - 06/09/2022 14:27:01 ::: 501-WPL-28222-2022.DOC All that Mr Dada seeks is a temporary, time-limited relief so that the LC is not further acted upon until MSEDCL has been able to move the CERC.
7. Given that there is undoubtedly a payment made by MSEDCL to CGPL, although under protest, we believe that there is sufficient prima facie case to issue an ad interim order until the day after tomorrow, i.e. 7th September 2022. There will, therefore, be an ad interim order in terms of prayers (d) and (e) at page 63 which read thus :-
d) Pending the hearing and the final disposal of the present Petition, this Hon'ble Court be pleased to direct the Respondent Nos. 1, 2 and 4 to not take any steps in furtherance of the letter dated 29.08.2022 issued by the Respondent No. 1 invoking the letter of credit;
e) Pending the hearing and the disposal of the present Petition, this Hon'ble Court be pleased to restrain the Respondent no. 4 from acting upon the request of invocation of Letter of Credit sought by the Respondent No. 1 vide its letter dated 29.08.2022 and encash the same and make any payment pursuant to such invocation.
8. All concerned are to act on an authenticated copy of this order. The Canara Bank will not insist on a certified copy of this order. A copy of this order is to be communicated by courier, E-mail and Whats App to all the Respondents at the earliest.
(Gauri Godse, J) (G. S. Patel, J)
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