Delhi District Court
M/S Vsr Solar Power Pvt Ltd vs M/S Indian Renewable Energy ... on 6 February, 2024
IN THE COURT OF Ms. NEELAM SINGH
DISTRICT JUDGE (COMM-02),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (COMM) 91/2023
M/s VSR Solar Power Private Limited
5, Rava Grounder Street, Naduvoor,Jalarpetai,
Tirapattur, Tamil Nadu-635851
Through its AR, Mr. A Rajendran ..... Plaintiff
Vs.
M/s Indian Renewable Energy Development Agency Limited
Registered Office at:
Indian Habitat Centre,
1st Floor, East Centre, Court Core 4A
Lodhi Road, New Delhi
Corporate office at:
3rd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi .....Defendant
Date of Institution: 25.01.2023
Arguments concluded on : 11.01.2024
Date of Judgment: 06.02.2024
Judgment
1.By this judgment, I shall decide the present suit filed by M/s VSR Solar Power Private Limited (hereinafter referred as plaintiff) seeking relief of recovery of Rs. 1,26,26,000/- (Rupees One Crore Twenty Six Lakhs and Twenty Six Thousand only) on M/s Indian Renewable Energy Development Agency Limited in short referred as IREDA (hereinafter referred asDefendant).
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 1 of 38M/s Indian Renewable Energy Development Agency Ltd The crux of facts stated in brief is noted below:
Case of the plaintiff
2. Plaintiff company is engaged in solar power part and running the business and management of solar power plants to produce energy which is supplied to both Government as well as private institutions. Defendant is a financial institution and is a public limited Government company established as non-banking financial institution engaged in extending financial assistance for setting up parts relating to new and renewable sources of energy and energy conservation. Defendant claimed to provide assistance and finances to power producers producing renewable energy.
3. Plaintiff had approached the defendant seeking financial assistance in the form of term loan to the tune of Rs. 128 Crores for the purpose of setting up a 50 MW solar photovoltaic grid power project grid power plaint which was proposed to be set-up by plaintiff at Vilathikulam Panchayat, Zamin Sengalpadai Village, Tuticorin District, Tamil Nadu. Plaintiff paid a registration fees of Rs. 5,00,000/- to the defendant for the sought loan and also submitted all its necessary documents including power purchase agreement dated 22.03.2018 which was signed between the plaintiff company and Tamil Nadu Generation and Distribution Corporation Ltd. (hereinafter referred as TANGEDCO) wherein TANGEDCO had agreed to purchase CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 2 of 38 M/s Indian Renewable Energy Development Agency Ltd power from the plaintiff produce from the proposed solar power plant.
4. After conducting a thorough due diligence on the plaintiff company and its proposed solar power project, the defendant company agreed to finance the power project and sanctioned the loan to the plaintiff company for a sum of Rs. 1,28,00,00,000/- (One hundred twenty-eight crore rupees) vide loan sanction letter no. TS-11017/54/2019-IREDA/1838 dated 26.07.2019. The terms and conditions of the said loan were specified in detail in the loan sanction letter. As per sanction letter dated 11.02.2019, the important sanction terms were:
"Sanctioned loan is subject to following condtions:
(which are detailed at annexure-1). Please note that this communication should not be in any way be construed as giving rise to any binding obligation on the part of IREDA, unless the borrower communicates to IREDA, within 30 days from the date of receipt of this letter that the terms and conditions set out herein are acceptable and unless the Loan Agreement and other documents relating to the above loan are executed by the borrower within the prescribed period, the loan sanction shall be considered withdrawn automatically without any further reference and obligation on the part of IREDA. The Front-End Fee of 1 % + 0.25 % of balance amount above 100 Crores plus applicable GST (50 % of the applicable front end fees shall be paid within 3 CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 3 of 38 M/s Indian Renewable Energy Development Agency Ltd months from the date of issue of sanction letter, otherwise sanction letter will be cancelled. 20 % rebate on front end fee payment shall be applicable, if paid within 60 days from the date of issue of sanction letter.)"
5. It is the case of the plaintiff that the plaintiff company paid the said Front-End Fee of Rs. 1,26,26,000/- in 3 installments of Rs. 64,00,000/-, Rs. 30,00,000/- and Rs. 32,26,000/-. As per the sanction letter of the defendant, the loan agreement between the plaintiff and defendant was required to be signed within 6 months from the date of the sanction letter and 1st drawing of loan by the plaintiff from the defendant was to be done by or before 6 months from the date of loan agreement. However, due to some operational and constructional issues with respect to the proposed solar power project, the plaintiff company was unable to execute the loan agreement within the prescribed 6 months time period with the defendant. Since the plaintiff company could not execute the loan agreement with the defendant within prescribed 6 months period, the defendant company intimidated the closer of the plaintiff's loan vide e-mail dated 24.02.2021.
6. Plaintiff responded to the e-mail of the defendant seeking extension of time informing the defendant regarding the pending appeal with Hon'ble Appellate Tribunal for Electricity (APTEL) but defendant failed to respond to the plaintiff company for a long period of time and therefore,it was considered that the defendant had revoked its loan offer from the plaintiff.
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 4 of 38M/s Indian Renewable Energy Development Agency Ltd Accordingly, having no option, the plaintiff wrote to the defendant seeking Front-End Fee of Rs. 1,26,26,000/- paid by the plaintiff for issuance of the sanction letter dated 11.09.2021. Plaintiff wrote various e-mails dated 08.03.2021, 27.04.2021 and 02.06.2021 seeking refund of the Front-End Fee but defendant failed to respond for a long period of time. Vide e-mail dated 16.06.2021, defendant responded to the plaintiff's request and instead of agreeing to refund the Front-End Fee as sought by the plaintiff, defendant decided to unilaterally extend the time period for execution of loan agreement till 11.12.2021 subject to the payment of 25 per cent additional Front-End Fee by the plaintiff. It is pertinent to mention that plaintiff by that time had already revoked its willingness for the loan and had requested for refund. Furthermore, vide e-mail dated 16.06.2021, defendant declared that the Front-End Fee paid by the plaintiff was non-refundable in nature, however, here was no such mention of non- refundability of the Front-End Fee in the sanction letter dated 11.09.2019. Thereafter, on multiple occasions, plaintiff had requested the defendant to close the loan application and refund the Front-End Fee already paid by the plaintiff but defendant failed to refund the same and hence the present suit seek the refund of Front-End fee of Rs. 1,26,26,000/- paid by the plaintiff to the defendant.
Case of the defendants
7. Written Statement has been filed on behalf of the defendant by taking the preliminary objections that there is no CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 5 of 38 M/s Indian Renewable Energy Development Agency Ltd cause of action in the present suit of the plaintiff against the defendant as the plaintiff had admittedly paid the Front-End Fee which is non-refundable in terms of the financing norm of the defendant. Defendant has denied the claim of the plaintif by taking a stand that the Front-End Fee is non-refundable and there is no liability of the defendant to pay the same.
8. Thereafter, plaintiff has filed replication and reiterated its stand. After completion of pleadings, issues came to be framed on 06.07.2023 as under:
1. Whether the suit of the plaintiff is without any cause of action in favour of the plaintiff and against the defendant? OPD
2. Whether the plaintiff has concealed material facts and has not approached the Court with clean hands? OPD
3. Whether the suit of the plaintiff is not maintainable as per the mandate of Commercial Courts Act, 2015? OPD
4. Whether the suit of the plaintiff is entitled for a decree of sum of Rs. 1,26,26000/- (Rupees One Crore Twenty Six Lakhs and Twenty Six Thousand only) in favour of the plaintiff and against the defendant? OPP
5. Whether the plaintiff is entitled for any interest on the decretal amount pendente lite and in future, if yes, then at what rate? OPP CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 6 of 38 M/s Indian Renewable Energy Development Agency Ltd
6. Whether the plaintiff is also entitled to cost of the suit? OPP
7. Relief.
Plaintiff's Evidence
9. Evidence in this matter was recorded before Local Commissioner, as per under mentioned protocol designed by this Court under Order XVIII Rule 4 CPC and Order XV-A Rule 6 (l) CPC applicable to the Commercial Suit.
10.1 PW-1 Sh. A Rajendiran has tendered his evidence by way of affidavit Ex. PW1/A. He relied upon following documents:
1. EX.PW1/1 is Sanction letter dated 11-09-19. Colly (pg. 37-49).
2. EX.PW1/2 is power purchase agreement dated 22.03.2018.
(pg.50-65).
3. EX.PW1/3 is copy of the Email dated 24.02.2021. (pg.66)
4. EX.PW1/4 is copy of the email dated 25.02.2021. (pg.67).
5. EX.PW1/5 is copy of the email dated 08.03.2021. (pg.68).
6. EX.PW1/6 is copy of email dated 27.04.2021. (pg.69).
7. EX.PW1/7 is copy of email dated 02.06.2021.
(pg.70).
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 7 of 38M/s Indian Renewable Energy Development Agency Ltd
8. EX.PW1/8 is copy of email dated 16.06.2021. (pg.71).
9. EX.PW1/9 is copy of email dated 06.01.2022. (pg.72-73)
10. EX.PW1/10 is copy of email dated 19.01.2022. (pg.74-75)
11. EX.PW1/11 is copy of notice dated 25.03.2022. (pg.76-79)
12. EX.PW1/12 is copy of reply dated 04.04.2022. (pg.80-83)
13. Copy of letter dated 03.05.2022 is de-exhibited as EX.PW1/13 and marked as Mark-A.(pg.84-87).
14. EX.PW1/14 is a nonstarter report by South District Legal Services Authority in original on court record. (pg.88).
15. EX.PW1/15 is Board resolution dated 15.10.2022 in original and on court record. (pg.89).
10.2 PW-1 was cross-examined by Ld. Counsel for defendant. During cross-examination by Ld. Counsel for defendant, PW-1 has deposed that except him, his wife R. Udayamathi is also a director in the plaintiff company. Then certain questions were put to PW-1 as under:
Q1. How many times plaintiff has sought extension from IREDA?
A1. We had sought extension three times from IREDA for execution of loan documents.CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 8 of 38
M/s Indian Renewable Energy Development Agency Ltd Q2. Did plaintiff furnish any documents on approval of extension of time line for commissioning of project from TNERC?
A2. No documents were given from TNERC but we had mentioned the same in the email.
Q3. Is it correct that no documents regarding the above were sent by plaintiff to IREDA even in such emails?
A3. It is correct.
Q4. I put it to you that plaintiff was never serious about execution of the project?
A4. It is incorrect. We were very much serious. Q5. I put it to you that front-end fee was not refundable and plaintiff was always aware of the same?
A5. No, I was not aware of that.
Q6. Why did TNERC reject the plaintiff petition DRP no. 7/2020 filed against Tamil Nadu transmission corporation ltd.?
Objected to by Ld. counsel of the plaintiff that it is a Court order and he is not the legal person to answer A6. Because the project did not commence in the schedule time.
Q7. I put it to you that plaintiffs project was not commissioned within 34 months from the date of signing the PPA?
A7. It is not 34 months, before that we went to TNERC.CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 9 of 38
M/s Indian Renewable Energy Development Agency Ltd Q8. What was the reason for causing delay in the commissioning of the project?
A8. Due to natural calamities and change of law. Q9. What were the natural calamities that happened and when did they occur?
A9. Cyclone in 2020.
Q10. What are the change of laws that you have mentioned above. Can you explain properly? A10. Increase of Tax and change in GST.
Q11. Who is Mr. Anil C?
A11. Mr. Anil C is working with the plaintiff company. However, he is not having any specific designation but he is the employee in the company. (The witness was confronted of page 38 of defendants document which is an email dated 13.01.2022 sent by Anil C. Marked as PW1/D1) Q12. Are you aware about the same document that is the email dated 13.01.2022 sent by Anil C sent to 2 persons namely Mr. Amit Dubey and K. Selvam?
A12. No, I am not aware of the abovementioned email.
Q13. Who is K. Selvam? Is he working in the plaintiff company?
A13. He is my Son-in-law and he is not working in the plaintiff company.
Q14. Has Mr. K. Selvam ever met the CMD of IREDA?
A14. No CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 10 of 38 M/s Indian Renewable Energy Development Agency Ltd Q15. Has Mr. K Selvam had any video conference meeting with the CMD of IREDA?
A15. I don't know.
Q16. I put it to you that Mr. K Selvam had video conference meeting with CMD of IREDA or the IREDA team in year 2022 regarding the plaintiff's project?
A16. I don't know.
Q17. I put it to you that email dated 13.01.2022 marked PW1/D1 clearly shows the intention of the plaintiff company to drag the project ?
A17. No, it is incorrect to suggest the same. Q18. I further put it to you that plaintiff company made financial losses to IREDA as it had to hold its fund for more than 2 years?
A18. It is incorrect to suggest that that plaintiff company made financial losses to IREDA as it had to hold its fund for more than 2 years.
Q19. From where did you obtained the financing norms of IREDA which you have filed along with the replication?
A19. From the internet.
Q20. From IREDA website?
A20. Yes.
Q21. I put it to you that IREDA's financing norms being available on website of IREDA are in public domain?
A21. Yes, it is correct.
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 11 of 38M/s Indian Renewable Energy Development Agency Ltd Q22. I put it to you that most of the developers had executed and commissioned the projects given to them by Tamil Nadu transmission corporation ltd. barring the plaintiff company?
A22. Yes, it is correct.
Q23. I further put it to you that the plaintiff company is not entitled to the refund of front-end fee in the present case?
A23. It is wrong and we are eligible for refund of front-end fee.
Witness is confronted with page 31 of defendants document which is IREDA's financing norms dated 19.11.2018, clause II(2) from point A to A Q24. I put it to you that as per IREDA's financing norms dated 19.11.2018, the front-end fee is non refundable.?
A24. No, I was not aware about these norms.
Q25. Has the plaintiff company ever challenged IREDA's financing norms dated 19.11.2018 in ant court of law?
A25. No, we have not challenged these norms in any court of law.
Q26. How many employees are there in the plaintiff company?
A26. There are 4 employees in the plaintiff company. Q27. What is the annual turnover of the plaintiff company from FY 2018-2019 to FY 2021-2022? A27. I am not clear about it.
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 12 of 38M/s Indian Renewable Energy Development Agency Ltd Q28. Can you provide any estimate if not the exact figure in answer to the above question?
A28. No. Q29. What is your tenure as the managing director of the plaintiff company?
A29. From 2013 till date.
11.1 Thereafter, plaintiff has examined PW-2 Mr. Chimmiri Anil Kumar (inadvertently mentioned as PW-1 while recording evidence) who has tendered his evidence by way of affidavit Ex. PW2/A and relied upon following documents:
1. Financing Norms and Schemes updated upto 04.02.2022 is Ex. PW2/1 (Colly) (Page No. 34-40).
2. Financing norms and schemes updated upto 24.03.2023 is Ex. PW2/2 (Colly.) (Page 41-47).
11.2 PW-2 has been cross-examined at length by Ld. Counsel for defendant and certain questions were put by Ld. Consel for defendant to PW-2 as under:
Q1. Since when have you been the employee of plaintiff?
A1. Since August 2020.
Q2. What is your designation in the plaintiff company ?
A2. I have no specific designation but when I joined I have to do work as General Manager for this particular project.CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 13 of 38
M/s Indian Renewable Energy Development Agency Ltd Q3. Whatever you have written in the evidence affidavit is according to your personal knowledge or as on the basis of the records of the plaintiff? A3. I have deposed According to my personal knowledge.
Q4. What is your qualification?
A4. I have Diploma in Electronics and Communications Engineering.
Q5. Does it means that you don't have degree of graduation in any discipline?
A5. Yes, it is correct.
Q6. When did you do your diploma? A6. I finished the Diploma in 1990. Q7. Is it correct to say that you don't have any expertise on renewable energy projects? A7. No, it is not correct.
Q8. Is it correct that you were not working with the plaintiff when sanction letter dated 11.09.2019 was issued to the plaintiff by the defendant? A8. Yes, it is correct.
Q9. Which means you were not aware when sanction was granted to the plaintiff if plaintiff was made aware of the financing norms of the defendant? A9. Yes, since I was not there so I was not aware of the Sanction which was granted to the plaintiff. Q10. Is it correct that the financing norms on which you relied are applicable to all borrowers of the defendant?CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 14 of 38
M/s Indian Renewable Energy Development Agency Ltd A10. I am not sure about it.
Q11. What was the date for commencing of the project?
A11. It is 12 months from the date of power purchase agreement without penalties and 24 months with penalties again stated that I need to check again about the time duration with penalties. Q12. When did you apply for credit facilities to the defendant?
A12. That was much before I joined. Q13. At this stage a document which is on page 38 of defendant's WS which is an email dated 13.01.2022 Q13. Whether this email dated 13.01.2022 was sent by you?
A13. Yes, it was sent by me. Voluntary: it was basically individually addressed to our legal counsel for a solution and expediting matter in Aptel case. Q14. Who is Damodar?
A14. Damodar is our legal advisor and he is dealing with Aptel case.
Q15. Who is K. Selvam?
A15. He is Son-In- Law of the managing director of the Plaintiff.
Q16. Is this email dated 13.01.2022 which is now exhibited as PW2/D1 Sent by you in furtherance of email dated 12.01.2022 of Amit Dubey of IREDA?
A16. Yes CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 15 of 38 M/s Indian Renewable Energy Development Agency Ltd Q17. Is it correct that plaintiff company was looking for new JV Partners to take over the project? A17. Yes, it was one of the options. Q18. And that is why you wanted to keep the sanction alive?
A18. No Q19. I put it to you that from your email dated 13.01,2022, there is a clear inference that the plaintiff was looking for selling of the project?
A19. Yes, it was one of the options.
Q20. Was it considered by you or the plaintiff company to pay validity extension fee of 25% of the applicable front-end fee to keep the sanction alive?
A20. It is for the management to consider and I don't know about it.
Q21. Is it correct that you were regularly communicating with IREDA in relation to the project?
A21. Yes after I joined.
Q22. If the management took the decision you would always be informed?
A22. No, not all the decisions.
Q23. If management of plaintiff could have taken decision to pay the validity extension fee of 25% of the front-end-fee, it would have been you who would have communicated same to IREDA?
A23. No CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 16 of 38 M/s Indian Renewable Energy Development Agency Ltd Q24. Is it not integral to managing a particular project that you should have been aware about the extension or validity of credit facilities for the project? A24. Yes Q25. Isn't knowledge of payment of validity extension fee a part of managing a particular project ? A25. Yes, I am aware of what is happening but decision of whether to pay the fees is management decision. Q26. How many employees are there in VSR Solar? A26. Excluding the management four employees. Q27. How many people are there in management? A27. Presently it is 3 and when I joined it was 2. Q28. Is there any other project handled by VSR Solar? A28. No other project.
Q29. Do you know the breakup of Front-end-fee paid to IREDA?
A29. Yes At this stage witness is confronted page no 7 of the plaint page which is a table which shows the breakup of front-end-fee.
The witness is affirming the break up of front-end-fee paid to the defendant.
Q30. Was GST charged over the front-end-fee? A30. Yes it was charged.
Q31. Since GST was charged, is it correct that the front-end-fee was paid by VSR Solar for services rendered by IREDA for processing of loan?
A31. I don't have knowledge about GST.
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 17 of 38M/s Indian Renewable Energy Development Agency Ltd Q32. Is it correct that when GST is charged on a particular bill/invoice it is in consideration for rendering of service and not as a refundable security?
A32. It is a point of argument and I am no one to comment since I don't know about GST.
Q33. Whether plaintiff had availed input credit of the GST paid on the front-end-fee?
A33. I don't know as I had joined later.
11.3 Thereafter, certain suggestions were given to PW-2 which he has denied. Thereafter, plaintiff's evidence was closed.
Defendant's Evidence 12.1 Matter was fixed for defendant's evidence. Defendant has examined Sh. Amit Dubey, Senior Manager (Technical Services), IREDA as DW-1 (inadvertently mentioned as PW-1 while recording evidence). DW-1 has tendered his evidence by way of affidavit Ex. DW1/A. He also relied upon following documents:
1. EX.DW1/1 is Chapter 10 of Financing Norms updated upto 19.11.2018. Colly (pg. 30-34).
2. EX.DW1/2 is Clause 1.17 of Operational guidelines issued by IREDA.
(pg.35-36).
3. EX.DW1/3 is Copy of Letter dated 4.01.2022.
(pg.37) CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 18 of 38 M/s Indian Renewable Energy Development Agency Ltd
4. Copy of Email communications exchanged between Plaintiff and Defendants from 23.01.2020 to 13.01.2022. Colly (pg.38-66)(already marked as Mark PW1/D1).
5. EX.DW1/5 is Copy of Email communications exchanged between Plaintiff and Defendants from 23.01.2020 to 05.07.2021. Colly (pg.67-89).
6. EX.DW1/6 is copy of email communications exchanged between Plaintiff and Defendants from 23.01.2020 to 24.06.2021. Colly(pg.90-110).
7. EX.DW1/7 is copy of email communications exchanged between Plaintiff and Defendants from 23.01.2020 to 06.12.2021.Colly(pg.111-134).
8. EX.DW1/8 is Copy of order of Tamil Nadu electricity regulatory commission (TNERC) dated 02.02.2021 in D.R.P No. 7 of 2020 titled VSR Solar Power Pvt.Ltd. Vs. Tamil Nadu Transmission Cooperation Ltd & ors. (pg.135-198).
9. EX.DW1/9 is copy of IREDA's circular No. Sectt./DOP/87-MS/ IREDA dated 21.05.2004 on delegation of power.(pg.199-202)
10. EX.DW1/10 is authority letter dated 16.03.2023. (pg.203)
11. EX.DW1/11 is Affidavit under order XI rule 6(3) CPC 1908 read with Commercial Courts Act 2015 and Section 65 B of the Indian Evidence Act of 1872. (pg.204-206) CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 19 of 38 M/s Indian Renewable Energy Development Agency Ltd 12.2 During cross-examination by Ld. Counsel for plaintiff, DW- 1 deposed that he is working as senior manager in IREDA and is working for last about 14 years. He has submitted that he started his job in 2008 at IREDA as Assistant Technical Officer (ATO) and then promoted as Technical Officer (TO) and then Deputy Manager and then Manager and now he is working as senior manager. He has submitted that VSR Solar i.e. plaintiff applied for the loan in 2019 and at that time, he was posted as manager. As a manager, at that time his role was to examine the documents submitted by the company and if the project is techno commercial viable, then put up the same to the competent authority for approval of the loan. He has submitted that based on the documents submitted by the company, the project of the plaintiff was techno commercial viable and accordingly, IREDA has sanctioned the loan to the plaintiff. He has further submitted that he has dealt with the applications normally come to IREDA for sanction of loan which are approximately 15-20 approximately per year. He has further submitted that in IREDA, the concerned dealing officer is responsible to communicate with the loan applicants however review and communications can be done in various levels. He has further submitted that the mechanism of communication for the loan applicants which are e-mails, letters, review by virtual mode and in person meetings. He has submitted that after all this, communication made in the written communication, minutes of meetings are prepared and these are finalized and binding on all the parties. He has answered in affirmation to the question that only the written communications are binding with the parties in line with IREDA guidelines which CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 20 of 38 M/s Indian Renewable Energy Development Agency Ltd is also available in public domain. He has submitted that the guidelines available in public domain are eligibility conditions for taking up the loan, front-end fee required to pay for availing the loan.
12.3 He has submitted that IREDA provides loans for financing for renewable energy projects like bio-mass, co-generation, solar wind and other renewable energy technologies. Apart from that, IREDA also provide loan for new and emerging technologies. He has answered in affirmation to the question that there are multiple kinds of financing schemes as provided by IREDA. The broader guidelines are available on the website of the IREDA which is applicable for all the schemes and loan. However, in specific conditions, condition may be decided on the basis of case to cases. He has further submitted that the broader guidelines are indicative terms and conditions for the loan amount, front-end fee and other charges required to be provided. However, the specific terms and conditions may be decided based on the technology and other specifications. He has further submitted that the broader guidelines are mentioned on the IREDA website and the specific terms are communicated by sanction letter and subsequently by loan agreement and are binding on both the parties. He has further answered to a question that the broad guidelines are available on the site and to ensure the seriousness and other conditions required for the taking of the loan. IREDA charge registration fee which is communicated through website and other modes. By other modes, the witness means e-mail communication, letters, VC meetings and sanction letter and loan agreement. He has further reiterated CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 21 of 38 M/s Indian Renewable Energy Development Agency Ltd that the broader terms are available on the IREDA website. However, the specific condition which may differ from the guidelines or financing norms of IREDA shall be communicated to the applicant by way of sanction letter and other communication modes. He has submitted that the sanction of the loan to the plaintiff was as per the IREDA policy. He has given an answer in affirmation to the question that would it be correct to state that the IREDA policy as in 2019 shall be the policy applicable on the present loan. He has denied the suggestion that the guidelines of 2019 are not applicable to the present loan. Various questions were asked by Ld. Counsel for plaintiff while cross-examining DW-1. Some of the relevant questions are reproduced below:
Q43. Would it be correct to state that the norms regarding the front-end fee are majorly different from each other? A43. No, they are not majorly different. However, the guidelines of 2018 was further updated in year 2022. Q44. I put it to you that mention the term "normally nonrefundable" shows that there could be instances where front-end-fees was refundable?
A44. No, I don't remember any instances where the front-end- fee was refunded.
At this point the witness is confronted with document Ex.PW2/1 of Plaintiff's documents which are financing norms 2022.
Q45. I put it to you that the amendment of the term "Normally non-refundable" as mentioned in 2018 norms, to the term CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 22 of 38 M/s Indian Renewable Energy Development Agency Ltd "Non-refundable" in the 2022 norms is because there were loans where Front-end fee was refundable. A45. No, for better clarity the guidelines are updated in 2022 from normally non-refundable to non-refundable. Q46. Why was the extension to the sanction letter granted subject to payment of additional front-end fee? A46. To ensure the seriousness and commitment of the client, the part front-end fee was requested from the client. Q52 Were the operational guidelines as exhibited in DW1/2 is same as available in the IREDA's website at the time of plaintiff's concerned loan application?
A52 Broader terms are same of guidelines which is applicable for this loan. However, this is updated on 06.03.2023.
12.4 Thereafter, Ld. Counsel for plaintiff has given some suggestions to DW-1 which he has denied. Thereafter, DE was closed.
Final Arguments
13. The matter was listed for final arguments. Ld. Counsel for the plaintiff as well as Ld. Counsel for defendant made their respective submissions.
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 23 of 38M/s Indian Renewable Energy Development Agency Ltd Arguments on Behalf of the Plaintiff:
14.1 At the outset, it is argued by Ld. Counsel for the plaintiff that through the testimony of DW-1 and a close examination of the documents before the Court, will demonstrate that the defendant, IREDA, has engaged in practices that contradict the terms of the loan agreement, violated industry norms, and caused significant harm to the plaintiff, VSR Solar Power Pvt. Ltd.
14.2 It is further argued that the sanction letter (Ex. PW1/1) is the primary document outlining the loan terms. It makes explicit reference to Annexure IA and IB, but makes no clear mention of additional "financing norms" or "operational guidelines."
14.3 It is further argued that DW-1, admits that the operational guidelines presented (Ex. DW-1/2) are updated versions and not the same as those in effect in 2019, when the loan application was filed.
14.4 It is further argued that DW-1 claims the application form contained references to relevant guidelines, yet it is mysteriously absent from the record. DW-1 repeatedly claims the loan is governed by "IREDA policy." However, the specific components of this policy remain vague and poorly communicated, leading to confusion and unfairness. The attempt to retroactively apply updated guidelines on front-end fees, particularly changing from "normally non-refundable" to "non-refundable," is a clear CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 24 of 38 M/s Indian Renewable Energy Development Agency Ltd violation of the original agreement and demonstrates IREDA's tendency to change the rules mid-game.
14.5 It is further submitted that IREDA claims its website is the primary mode of informing loan applicants. It is further argued that the evidence overwhelmingly shows that IREDA has acted in an arbitrary and capricious manner. They've failed to uphold the sanctity of the initial loan agreement, introduced ambiguous guidelines, and shifted policies to their own advantage and to the detriment of the plaintiff.
Counter-Arguments on Behalf of the Defendant:
15.1 It is argued that Ld. counsel for the plaintiff has presented their arguments, raising concerns regarding communication and policy application. However, a closer examination of the facts and established legal principles reveals that VSR Solar Power Pvt. Ltd. (plaintiff) misconstrues the loan agreement and its adherence to industry norms. It is further argued that IREDA has consistently acted with transparency and fairness throughout the loan process.
15.2 It is argued that the foundation of this case lies in the clear and binding agreement established between the parties. The sanction letter (Ex. PW1/1) explicitly references Annexure A1 and A1b, which, along with the subsequent loan agreement, outline the comprehensive terms and conditions applicable to both parties. This established framework ensures clarity and avoids ambiguity.
CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 25 of 38M/s Indian Renewable Energy Development Agency Ltd 15.3 It is further argued that DW-1's clarification regarding the applicability of guidelines aligns with industry standards. Loan agreements often incorporate the notion of evolving policies, allowing for adaptation to changing market conditions and ensuring the long-term sustainability of lending practices. This does not constitute a breach of the agreement but rather reflects responsible management and adaptation.
15.4 It is further argued that the additional front-end fee requested for the loan extension was a standard industry practice employed to assess the client's continued commitment to the project, especially considering the extended loan period. The onus lies on the applicant to familiarize themselves with the terms before submitting the application. This practice aligns with established principles of taking responsibility for understanding the terms of agreements entered into. As a publicly accessible resource, the IREDA website provides a readily available platform for potential and existing borrowers to access information about the broader policy framework, including potential updates.
15.5 It is argued that defendant has consistently operated within the framework of the established loan agreement, communicated its policies effectively through various channels, and adhered to recognized industry standards throughout the loan process. The concerns raised by the plaintiff regarding unclear communication and unfair practices lack merit. Ld. Cousel for defendant maintain that the loan terms, including the application of IREDA policy and its potential updates, are binding and enforceable.
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16. Both parties presented compelling arguments supported by evidence and countered each other's claims effectively. I now propose to deal with the issues in the background of the record. Issue no. 3 is taken up first.
Findings on the issues Issue No. 3: Whether the suit of the plaintiff is not maintainable as per the mandate of Commercial Courts Act, 2015? OPD
17. Section 2(c) of the Commercial Courts Act, 2015 defines a commercial dispute as one arising from a commercial transaction. Section 3 empowers Commercial Courts to adjudicate suits and applications related to such commercial disputes exceeding a "specified value."
18. Since the disputed loan amount falls within the specified value limit, the dispute prima-facie falls under the jurisdiction of the Commercial Court, establishing initial maintainability. However, Section 11 of the Act carves out specific exceptions where the Court's jurisdiction is restricted. It states that the Court shall not entertain or decide suits where jurisdiction is "expressly or impliedly barred under any other law."
19. Ld. Counsel for plaintiff contends that IREDA's actions, including unclear communication and retroactive application of policy changes, constitute a breach of the loan agreement and CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 27 of 38 M/s Indian Renewable Energy Development Agency Ltd industry standards. They seek remedies for these alleged breaches.
20. IREDA counters that the plaintiff misinterprets the agreement and that their actions were within the established framework and industry norms. They further argue that the onus lies on the plaintiff to stay informed, considering the publicly accessible IREDA website served as a communication channel.
21. After careful consideration of the arguments and evidence presented, the Court finds that the plaintiff's claims do not fall within the exceptions outlined in Section 11. The dispute primarily revolves around the alleged breach of contract and its associated remedies, which squarely fall within the definition of a commercial dispute under Section 2(c) of the Act.
22. Therefore, in light of the nature of the dispute, the specified value of the loan, and the absence of any specific statutory bar under Section 11, the Court holds that the suit filed by the plaintiff is maintainable under the Commercial Courts Act, 2015. Accordingly, issue no. 3 is decided in favour of the plaintiff.
Issue No. 2. Whether the plaintiff has concealed material facts and has not approached the Court with clean hands? OPD
23. The principle of 'clean hands' is a well-established equitable doctrine aimed at fostering fair and just legal CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 28 of 38 M/s Indian Renewable Energy Development Agency Ltd proceedings. It originates from the Latin maxim "venire ad curiam manus purgas," signifying that a party seeking the Court's assistance must do so with "clean hands" and a clear conscience. It prevents parties who have engaged in inequitable or deceitful conduct from obtaining judicial relief. However, applying this doctrine necessitates a balanced approach, considering its purpose and potential consequences.
24. Ld. Counsel for defendant argues that the plaintiff has approached the Court with unclean hands due to alleged concealment of material facts and unclear communication of crucial loan terms. While acknowledging the importance of addressing these concerns, the Court finds the arguments insufficient to dismiss the plaintiff's case based on the "clean hands" doctrine.
25. The crux of the plaintiff's claim lies in the alleged lack of transparent communication regarding crucial aspects of the loan agreement, particularly changes in front-end fee policies and their impact on financial obligations. The defendant's reliance on references to a broader "IREDA policy" and website accessibility falls short. A mere mention does not equate to clear communication of specific, potentially evolving terms and their ramifications. Ld. Counsel for plaintiff raises concerns about potential confusion and unfair surprise arising from unclear communication of evolving policies and their financial implications.
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26. The argument that the plaintiff's actions necessitate dismissal under the "clean hands" doctrine is unconvincing. As the provided article emphasizes, a crucial aspect of applying this doctrine involves considering the established legal precedents. The landmark case of Ramjas Foundation vs. Union of India (2010) explicitly states that the "clean hands" principle extends beyond specific writs and applies to various court proceedings. This case serves as a powerful precedent demonstrating the doctrine's applicability in a similar context, where the dispute arose in a subordinate court. Therefore, dismissing the plaintiff's claim solely based on the "clean hands" doctrine appears premature and contradicts established legal principles. The Court must delve into the merits of the case, examining the alleged communication issues and their potential impact on the agreement, rather than solely focusing on the doctrine as a potential bar to pursuing their legitimate claims.
27. Therefore, based on the lack of sufficient evidence to establish deliberate concealment of material facts or a demonstrably unfair advantage gained by the plaintiff, the Court holds that the plaintiff's conduct does not bar them from maintaining their suit. It is crucial to note that while the "clean hands" doctrine aims to maintain judicial integrity, its application should not impede access to justice for parties with legitimate grievances. In this case, the concerns raised by the plaintiff regarding communication and potential policy changes warrant further examination on the merits of the case, independent of the CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 30 of 38 M/s Indian Renewable Energy Development Agency Ltd "clean hands" doctrine. Accordingly, issue no. 2 is decided in favour of the plaintiff.
Findings on other issues
28. Since issue no. 1, 4, 5 and 6 are interconnected, so I have dealt with all these issues concurrently. Following the determination that the "clean hands" doctrine does not impede plaintiff from pursuing its case, the Court now comprehensively addresses the remaining issues. Examining them concurrently allows for a cohesive analysis of how each issue impacts the ultimate decision.
29. After meticulously reviewing the evidence and arguments presented, the Court finds that plaintiff's case presents a limited cause of action. While their concerns regarding unclear communication of evolving policy details and potential ambiguity in the front-end fee structure are acknowledged, they do not translate to a demonstrable breach of contract by the defendant, Indian Renewable Energy Development Agency Limited (IREDA).
30. Crucially, the Court places significant weight on the evidence presented by the defense witness, DW-1 Sh. Amit Dubey, during cross-examination. DW-1's testimony established that the loan agreement (Ex. PW1/1) explicitly referenced Annexure A1 and A1b, which outlined the applicable terms and conditions, including the front-end fee structure. This CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 31 of 38 M/s Indian Renewable Energy Development Agency Ltd demonstrates that IREDA provided access to the relevant information within the agreement itself. The Court has meticulously examined these Annexures and found them to be comprehensive in outlining the fees and charges associated with the loan, including a specific breakdown of the front-end fee structure based on the loan amount. Although plaintiff may have raised concerns about the clarity of communication beyond the loan agreement, the primary legal document governing the arrangement takes precedence.
31. I could lay my hand on a judgment in Hatsuun Agro Products Ltd Vs. Industrial Development Bank of India CS No. 513 of 2001. The relevant paragraph is reproduced as under:
"32. In the light of various decisions of the Hon'ble Apex Court, it has been made clear that the Court cannot re-write any contract, by way of interpretation, contrary to the terms and conditions that are agreed by the parties to the contract. Similarly, unless the objectives, directives or policy involved in the contract are declared illegal and unenforceable. When the terms and conditions of the contract have been mutually agreed by both the parties to the contract, when one of the party is a Government undertaking, it cannot be construed that such a contract or any provision of the contract is against public policy, merely on the plea raised one of the party, who has reaped the benefits under a contract. In fact, a party to a contract, having agreed, signed the terms and conditions of contract, unless there is element for coercion for obtaining the said contract, after getting the benefit under the contract is estopped from raising a plea contract to the acceptance of the contract by saying that the terms and conditions of the contract is against public policy.
33. In the instant case, it is not in dispute that the plaintiff had paid the prepayment premium of Rs.51,42,895/-,as per the terms and conditions of the contract, as agreed by both the parties to the contract. The plaintiff has raised a defence that the said amount was collected from the plaintiff, as prepayment premium illegally under duress. It is an admitted fact that the defendant, CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 32 of 38 M/s Indian Renewable Energy Development Agency Ltd Industrial Development Bank of India is a Government of India undertaking and the plaintiff is also a public limited company and therefore, it cannot be said that the amount was collected under duress. The defendant, being a public undertaking have no necessity to collect the money from the plaintiff, a public limited company under duress. As per Section 114 (e) of Indian Evidence Act, judicial and official acts have been regularly performed.
34. As contended by Mr.T.V.Ramanujam, learned Senior Counsel appearing for the defendant, when the terms and conditions of the contract are clear and unambiguous, the Court cannot interpret the same, so as to change the terms of contract. In other words, Courts cannot re-write the contract, by way of interpretation, contrary to the terms and conditions mutually agreed by the parties to the contract, unless the contrary is proved by the party, who challenge the mutual agreement. Unless such terms and conditions are illegal or unenforceable, it cannot be challenged by a party to the contract, on the ground that the terms of the contract is against public policy.
35. Mr. T. R. Rajagopalan, learned Senior Counsel appearing for the plaintiff contended that the defendant has not given any details to justify that the prepayment premium need not be refunded to the plaintiff. According to the learned Senior Counsel, the defendant had not sustained any loss on account of pre-closure by the plaintiff and therefore, it would be an unjust enrichment and therefore, the plaintiff is entitled to a decree as prayed for.
36. The Hon'ble Supreme Court in the decision reported in AIR 1993 SC 1435 (cited supra) has categorically held that U.P. Finance Corporation, the appellant therein was instrumentality of the State created under the State Finance Corporation Act, 1951. The said Act was made by the Parliament with a view to promote industrialization of the State by encouraging small and medium industries by giving financial assistance in the share of loan and advance, repayable within a period not exceeding 20 years from the date of such loan, however, the said Corporation cannot be treated like an ordinary money lender or a Bank, which lends money, since the Finance Corporation is a lender without the purpose and the purpose is promoting the small and medium industries. However, the relationship between the Finance Corporation and the borrower is that of creditor and debtor and hence, the Corporation is not supposed to give loans once and go out of business. The Corporation has to recover the loan amount, so that it can give fresh loans to others and achieve its objects. The ruling of the Hon'ble Apex Court is squarely applicable to the defendant, which is also a government undertaking, having the purpose of promoting industrial development in the country.CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 33 of 38
M/s Indian Renewable Energy Development Agency Ltd
37. Having admitted the terms and conditions of the contract, in the absence of any illegality, the terms of contract cannot be challenged by the plaintiff, after reaping the benefits under the contract and therefore, I am of the view to answer the issues 1 and 2 against the plaintiff and in favour of the defendant herein and accordingly, the issues are answered.
38. Issue No. 3: Learned Senior Counsel for the plaintiff argued that there was no loss sustained by the defendant, hence, the prepayment premium made by the plaintiff to the tune of Rs.51,42,895/- shall be refunded by the defendant. According to the learned Senior Counsel for the plaintiff, the payment was made well in advance would be beneficial to the defendant, hence, the defendant could not have incurred any loss, on account of the foreclosure and therefore, the plaintiff is entitled to get back the amount. On the other hand, the learned Senior Counsel appearing for the defendant submits that as per law, considering various aspects and the loss being sustained by the defendant, pre-closure is not encouraged by the Act itself. The defendant is also getting financial assistance from various sources and liable to pay interest for the same, apart from incurring administrative and other legal expenses. Considering all these aspects and also the object of promoting industrial development, the terms and conditions of the contract were formulated and therefore, it is not open to theplaintiff to seek exact loss of income suffered by the defendant. Learned Senior Counsel also relied on the decisions referred to above with regard to the legality of not refunding the prepayment premium.
39. It cannot be said that no loss of income was suffered by the defendant, on account of pre-closure, as the plaintiff, public limited company, voluntarily entered into a contract with the defendant, a Government undertaking and agreed for the general terms and conditions, stipulated therein, the defendant cannot specify the actual loss of income, since it is not related only with the plaintiff company. When there is no illegality in the terms of contract either on the ground of public policy or otherwise, when there is evidence to show that the contract was entered into by the plaintiff without coercion, the claim of the defendant, based on the agreement not to lend the amount claimed by the plaintiff could be justified in law, accordingly, the third issue is answered."
32. Further bolstering defendant's position, Ex. DW1/1, a document presented by the defendant, explicitly mentions at point 2 that the "total Front End Fee is normally non-refundable". This clause directly addresses the issue of refunds and reaffirms CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 34 of 38 M/s Indian Renewable Energy Development Agency Ltd defendant's stance on the non-refundable nature of the fee. Notably, plaintiff's counsel had the opportunity to cross-examine DW-1 regarding this specific clause but failed to establish any ambiguity or misleading language within its wording.
33. While plaintiff argued about the absence of explicit references to this particular clause in every communication, the Court finds that relying solely on readily accessible platforms such as the IREDA website cannot be deemed sufficient to claim complete unawareness of the terms and conditions. The loan agreement, as the cornerstone legal document, serves as the most reliable source of information, and plaintiff had the responsibility to thoroughly review and understand its terms before signing it. Defendant cannot be held solely accountable for potential misunderstandings arising from a lack of engagement with the core legal document outlining the rights and obligations of both parties.
34. In reaching our final decision, the Court has meticulously considered the totality of the evidence presented in this case. This includes several crucial pieces of evidence that significantly impact our conclusions.
35. Firstly, the loan agreement itself (Ex. PW1/1) and its accompanying Annexures (A1 and A1b) stand as the primary source of information governing this case. These documents provide detailed and comprehensive information outlining the terms and conditions of the loan, including a specific breakdown CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 35 of 38 M/s Indian Renewable Energy Development Agency Ltd of the front-end fee structure. Notably, these Annexures explicitly and unambiguously state the non-refundable nature of the front- end fee. This clarity within the core legal document outlining the rights and responsibilities of both parties holds significant weight in our assessment.
36. Secondly, the defense further solidified their position by presenting Ex. DW1/1. This document explicitly reiterates the non-refundable nature of the front-end fee in point 2. During cross-examination, Ld. Counsel for defendant failed to establish any ambiguity regarding the wording of this clause. This further strengthens the position that the terms concerning the non- refundable nature of the fee were presented within relevant documentation.
37. Thirdly, the Court acknowledge the established legal principle allowing for adaptation of loan policies within the legal framework. This principle is exemplified by Ex. DW1/2, which outlines the process for loan extensions and potential adjustments to fees based on specific circumstances. While plaintiff raised concerns regarding potential ambiguity in communication about evolving policies, the principle of allowing adaptation within the legal framework underscores the need for borrowers to engage with the core legal documents like the loan agreement and its Annexures to understand the governing terms and conditions, including the possibility of policy changes.
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38. Finally, the Court acknowledges the limitations of relying solely on website accessibility for a complete understanding of all terms and conditions. While readily accessible platforms like IREDA's website can be informative, they cannot supersede the importance of thoroughly reviewing and understanding the primary legal documents like the loan agreement. Plaintiff had the responsibility to engage with the core legal documents before signing them, and relying solely on the website cannot be deemed sufficient to claim complete unawareness of the terms and conditions, particularly those explicitly outlined within the agreement itself.
39. Considering all the above points collectively, the Court arrives at the following conclusions:
(a) Limited Cause of Action: While VSR's concerns regarding communication are acknowledged, they do not establish a clear breach of contract by defendant due to the clarity and accessibility of the information within the core legal documents and the established legal principle allowing for policy adaptation within the legal framework.
(b) Unsubstantiated Claim for Refund: Plaintiff's claim for a full refund of the front-end fee is not supported by the evidence and established legal principles, as the non-refundable nature of the fee was clearly outlined within the relevant documentation.CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 37 of 38
M/s Indian Renewable Energy Development Agency Ltd Conclusion
40. After meticulously evaluating the totality of the evidence presented, including the detailed and comprehensive information within the loan agreement (Ex. PW1/1) and its associated Annexures explicitly outlining the non-refundable nature of the front-end fee, the unambiguous confirmation of this non- refundable nature in Ex. DW1/1 (point 2), the established legal principle allowing for adaptation of loan policies within the legal framework as exemplified by Ex. DW1/2, and the limitations of relying solely on website accessibility for a complete understanding of all terms and conditions, the Court arrives at the following conclusions. While acknowledging plaintiff's concerns regarding communication, they do not establish a clear breach of contract by defendant due to the clarity and accessibility of the information within the core legal documents and the established legal principle allowing for policy adaptation within the legal framework. Furthermore, plaintiff's claim for a full refund of the front-end fee is not supported by the evidence and established legal principles, as the non-refundable nature of the fee was clearly outlined within the relevant documentation. Consequently, the Court hereby dismisses plaintiff's suit in its entirety. File be consigned to Record Room.
Announced & dictated in the open Court on this 06th day of February, 2024 (NEELAM SINGH) District Judge (Commercial Court-02) South-East, Saket Courts, ND CS (COMM) 91/2023 M/s VSR Solar Power Pvt Ltd Vs. Page 38 of 38 M/s Indian Renewable Energy Development Agency Ltd