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Appeal No.266 of 2016 & IA No.561 of 2019 2.10 In the circumstances, the non-grant of the CFE due to which the project of the Appellant could not be established is clearly a force majeure event, beyond the reasonable control of the Appellant. The Agreement, in clause 9 also clearly provides for the force majeure clause in an expansive manner as to include any event or circumstances beyond the control of the parties. Article 9, inter- alia, reads as under:

4.25 In the circumstances, the non-grant of the CFE due to which the project of the Appellant could not be established is clearly a force majeure event, beyond the reasonable control of the Appellant. In the circumstances, clause 9 of the BPTA clearly applies and the threat by the Powergrid for invocation of the bank guarantee provided by the Appellant is incorrect and is liable to be held as such.

4.26 The Central Commission has proceeded on an erroneous assumption that the force majeure clause applies only if the force majeure is of a temporary nature and for a limited period of time.

5.10 This Hon'ble Tribunal in Appeal 54 of 2014, Himachal Sorang Power Ltd. Vs. CERC held in para 22 as under:

22. "As mentioned above, the appellant did not give the required notice under clause 13 regarding force majeure event fulfilling the requirements of the said clause, within a reasonable time and the appellant did not satisfy the respondent no.2-Power Grid about the existence of the alleged force majeure event. The notice/ communication dated 07.07.2011 sent by the appellant to the respondent no.2- Power Grid simply states that the open access is to commence from the date when KarchamWangtoo-Abdullapur Line (KWA) is ready and commissioned. The said communication cannot be said to be a notice in sufficient compliance of the provisions of clause 13 dealing with force majeure provided under the BPTA. When there are specific provisions to be complied with for the applicability of force majeure events, the said requirements cannot be legally ignored or Appeal No.266 of 2016 & IA No.561 of 2019 exempted on the strength of some case law. The Hon'ble Supreme Court in DhanrajGobindram's case (supra) observed that force majeure includes any event over which the performing party has no control. In the case in hand, no legal notice fulfilling the requirements of clause 13 had been given by the appellant to the respondent no.2 in order to get the benefit of such force majeure and it failed to satisfy the respondent no.2 about the existence of such force majeure event. If the grounds leading to the delay in commissioning of the appellant's power plant are to be considered, no material to substantiate the said grounds has been placed by the appellant on record either before the Central Commission or before this Appellate Tribunal. The only ground pressed during arguments in the Appeal by the appellant is regarding sufficient geological surprises affecting major works, for which no notice fulfilling the requirements provided under clause 13 of the BPTA had been given. The learned Central Commission, in the impugned order, has given detailed and cogent reasons for not agreeing to the report prepared by Lahmeyer International Private Limited (Expert). We have quoted the said reasons in para 15.1 of this judgment. We find no force in the appellant's contention that the learned Central Commission did not cite sufficient or material reasons for disagreeing with the expert's report. We are further unable to agree to the contention of the appellant that the learned Central Commission failed to consider that the effects of the force majeure events, that occurred before 01.04.2012, had not ceased to operate. We agree to the finding recorded by the Central Commission in the impugned order because clause 13 dealing with force majeure clearly provides that the transmission/ drawl of power shall bestarted as soon as practicable by the parties concerned after such eventuality has come to an end or ceased to exist. The said clause does not provide that the effect of force majeure to continue till the appellant is restored to its original position if there was no force majeure. If the appellant fails to restore or recover from the alleged force majeure for unreasonably long time, it cannot be held entitled to any benefit on that score.

7.18 We have perused the impugned order dated 12.7.2016 passed by the Central Commission in Petition no. 315 /MP/2013 filed by the Appellant and note that the Central Commission has categorically observed that the Appellant had acted bona fide, the Appellant was affected by force majeure beyond its reasonable control, Powergrid not acting in prudent manner, Powergrid not suffering any loss at the time when the Appellant claimed force majeure etc. However, in utter contrast to the aforesaid findings, the Central Commission has held that the issue whether any charges are Appeal No.266 of 2016 & IA No.561 of 2019 liable to be paid by the Appellant would be decided based on the decision in other proceedings relating to relinquishment of open access capacity and levy of relinquishment charges, if any. We are not inclined to accept the observations of the Central Commission regarding interpretation of the Clause 9 (force majeure clause) of the BPTA holding that the Appellant can be entitled to relief only for temporary force majeure events and not for permanent force majeure events. Besides, the Central Commission could not render any definite view on the refund of bank guarantee furnished by the Appellant in terms of the BPTA amounting to Rs.49.35 crores.