Delhi High Court - Orders
Adani Wind Energy Kutchh One Limited ... vs Solar Energy Corporation Of India Ltd. & ... on 3 February, 2021
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:04.02.2021
20:14:04
$~1, 11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 340/2021 & CM APPL. 891/2021
ADANI WIND ENERGY KUTCHH ONE LIMITED (FORMERLY
KNOWN AS ADANI GREEN ENERGY
(MP) LIMITED) ..... Petitioner
Through: Mr. Rishi Aggarwal and Mr. Ankit
Banati, Advocates.
versus
SOLAR ENERGY CORPORATION OF INDIA LTD.
& ANR. ..... Respondents
Through: Mr. Bharat Sangal, Sr. Advocate with
Ms. Anindita Deka, Advocate for
SECI.
Mr. Chetan Sharma, ASG with Mr.
Kirtiman Singh, CGSC, Mr. Amit
Gupta, Mr. Vinay Yadav, Mr. Akshay
Gadeock, Mr. Sahaj Garg and Mr. R.
Venkat Prabhat, Advocates.
11 With
+ W.P.(C) 9977/2020 & CM APPL. 31734/2020
VAAYU RENEWABLE ENERGY (MEVASA) PRIVATE
LIMITED ..... Petitioner
Through: Mr. Krishnan Venugopal, Senior
Advocate with Mr. Divyanshu Gupta,
Ms. Pallavi Srivastava and Mr.
Shivendra Singh Advocates.
versus
POWERGRID CORPORATION OF INDIA
LIMITED ..... Respondent
Through: Ms. Suparna Srivastava, Advocate.
12
With
W.P.(C) 340/2021 & connected matters Page 1 of 5
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:04.02.2021 13:24
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:04.02.2021
20:14:04
+ W.P.(C) 161/2021 & CM APPL. 469/2021
VAAYU RENEWABLE ENERGY (MEVASA) PRIVATE
LIMITED ..... Petitioner
Through: Mr. Krishnan Venugopal, Senior
Advocate with Mr. Divyanshu Gupta,
Ms. Pallavi Srivastava and Mr.
Shivendra Singh Advocates.
versus
POWERGRID CORPORATION OF INDIA
LIMITED ..... Respondent
Through: Ms. Suparna Srivastava, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 03.02.2021
1. This hearing has been done through video conferencing.
2. These petitions relate to power projects wherein disputes have arisen with the Respondents.
3. In W.P.(C) 340/2021, the Petitioner seeks maintenance of status quo in regard to the Power Purchase Agreement (hereinafter 'PPA') dated 28th June, 2018 executed with Respondent No. 1 - Solar Energy Corporation of India Ltd., for supply of 50MW each, for five wind power projects to be established in the state of Gujarat. The Petitioner also seeks an order of injunction of restraining invocation and/or encashment of bank guarantee bearing No. 007GM07181110001 issued by Yes Bank for a sum of Rs. 50 crores, furnished as performance bank guarantee under the said PPA, until the claim of the Petitioner under Section 79 of the Electricity Act, 2003 is heard by the Central Electricity Regulatory Commission (hereinafter W.P.(C) 340/2021 & connected matters Page 2 of 5 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:04.02.2021 13:24 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:04.02.2021 20:14:04 'CERC').
4. In W.P.(C) 9977 of 2020 and W.P. (C) 161 of 2021, the disputes arise out of Transmission Agreement for Connectivity dated 3 rd August 2018. As per the Petitioner, the Agreement stands frustrated due to various intervening events including the COVID-19 pandemic. Accordingly, it seeks permission to relinquish the connectivity, without being subjected to penalty and also seeks release of Bank Guarantees.
5. The matters have been adjourned from time to time. There are various objections raised by Mr. Bharat Sangal, ld. counsel appearing in W.P.(C) 340/2021 for the Respondent, including the submission that the Petitioner ought to approach the Dispute Resolution Committee constituted under the guidelines for dispute resolution, which are notified by the Ministry of New and Renewable Energy, Govt. of India, from time to time.
6. The matter had been adjourned on the last two to three occasions, awaiting the order of the Hon'ble Supreme Court in Conmt. Pet.(C) No. 429/2020 in C.A. No. 14697/2015 titled K K Agarwal v. Sanjiv Nandan Sahai & Anr., where the Hon'ble Supreme Court was considering the early functioning of the CERC.
7. Vide order dated 20th January, 2021 which has been placed on record, the Hon'ble Supreme Court has recorded that the Member (Law) of the CERC has been appointed vide appointment letter dated 16th December, 2020 and that the judicial functioning of the CERC can be commenced immediately upon the joining of the Member (Law). The order of the Supreme Court reads:
" The selection is stated to have been finally made and appointment letter issued on 16.12.2020 qua the W.P.(C) 340/2021 & connected matters Page 3 of 5 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:04.02.2021 13:24 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:04.02.2021 20:14:04 Member(Law), It is however stated that the Member (Law) has yet not joined and he is a member of the State Commission.
In view of the facts which have already been recorded in the previous proceedings, we are of the view that it is in the interest of justice that the Member(Law) joins at the earliest and we are sure that the learned Attorney General will use his good office to facilitate his release from the present assignment and his joining the new assignment so that the judicial functioning can commence at the earliest.
Insofar as the matters which had been reserved are concerned, we permit the pronouncement of judgments in those matters. The other members can also join and carry on their administrative functions but the judicial functioning will be restored on the joining of the Member (Law).
In view thereof, nothing further survives for consideration. The contempt notice is thus discharged and the interdicts are vacated with the hope that such a situation does not arise in future."
8. Ms. Suparna Srivastava, ld. counsel appearing for the Respondents in W.P.(C) 9977/2020 and W.P.(C) 161/2021, submits that the Member(Law) is likely to join shortly. This fact is not disputed by any of the counsels appearing today.
9. The Petitioners have already filed their respective Petitions before the CERC vide Diary No. 21/2021 in W.P.(C) 340/2021 and Miscellaneous Petition 3/2021 in W.P.(C) 9977/2020 and W.P.(C) 161/2021. Since the CERC has already been approached and also due to the fact that the Member (Law) is likely to resume office shortly, the CERC is directed to take up the petitions filed by the Petitioners on a priority basis, immediately after the Member(Law) assumes office and in any case within a period of 30 days W.P.(C) 340/2021 & connected matters Page 4 of 5 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:04.02.2021 13:24 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:04.02.2021 20:14:04 from today.
10. Since this Court has not gone into the merits of the matters, it is directed that no coercive steps including invocation and/or encashment of the bank guarantees shall be taken till the first date of hearing before the CERC which is directed to take place within a period of 30 days. If the CERC does not resume judicial functioning before the said date, the Petitioners are permitted to approach this Court by way of an application. All objections and pleas of all parties are left open to be urged before the CERC.
11. With these observations the petitions, along with all pending applications, are disposed of.
PRATHIBA M. SINGH, J.
FEBRUARY 3, 2021 Dj/Ap W.P.(C) 340/2021 & connected matters Page 5 of 5 Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:04.02.2021 13:24