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f) However, the defaults as pointed out by the Appellant in the default notice were not cured within thirty days from service of the default notice dated 15.7.2009. Therefore, the Appellant issued the notice of termination dated 7.9.2009 as per Article 9.3.2. of the PPA terminating the PPA.

g) In view of the failure to cure the defaults and the consequent termination, the Appellant filed a Petition before the State Commission on 26.10.2009 in OP No.37 of 2009 praying for Declaration that the PPA dated 19.10.2001 and the Supplemental PPA dated 9.6.2005 stood terminated as well as for consequential directions.

7) From the above Termination Notice, it is seen that the Petitioner has issued the Termination Letter without calling upon the 1st Respondent to cure the defaults mentioned therein, as required under Article 9.3.2, and has proceeded to terminate the PPA straightaway.

8) As pointed out by the 1st Respondent, before termination of the PPA, the Petitioner is required to issue a Default Notice, calling upon the 1st Respondent to cure the defaults alleged to have been committed, within 30 days from the date of receipt of the Default Notice, and only in case of failure by the 1st Respondent to cure the defaults pointed out, the PPA can be terminated by the Petitioner. Therefore, the termination of the PPA, without issuing a Default Notice, is not in accordance with the terms of the PPA and hence cannot be sustained. The contention of the learned Counsel for the Petitioner that no fresh Notice was required for the termination of the PPA, in view of its earlier Notice dated 7.9.2009, cannot be accepted, in view of the specific language contained in Article 9.3.2 of the PPA, which requires issuance of Default Notice of 30 days before terminating the PPA.

(d) The Petitioner may terminate the PPA only when there is fresh cause of action and fresh default notice after the date of disposal of the petition on 3.3.2011.

(e) Even assuming that the letter of termination of the PPA can be considered to be a default notice for termination of the PPA as contemplated under Article 9.3.2 of the PPA, the Petitioner would not be entitled to terminate the PPA in view of the reply sent by the Respondent to the Petitioner on 27.6.2012 pointing out some defaults referred to in the termination notice have already been cured and other defaults are in the process of getting cured. Therefore, the termination of the PPA on merits also is not sustainable.

51. As indicated above, Article 9.3.2. of the PPA clearly gives power to the Appellant to terminate the PPA in case the event of default giving rise to Default Notice were not cured within 30 days from the date of Default Notice. In the present case, Default Notice was sent by the Appellant to the Respondent on 15.7.2009. In this Default Notice the Appellant had clearly pointed out events of defaults as non- opening of Letter of Credit and non payment or interest on delayed payment. Admittedly, both these defaults had not been cured till 27.6.2012 the date of the reply i.e. even after expiry of almost three years. Therefore, the Appellant's right to terminate the PPA at any time after expiry of thirty days i.e. after 14.8.2009 continues to exist as it had not been extinguished.