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B) Hold and declare that the PPA dated 25th September 2008 is valid, subsisting and binding and in force and the Appellant is entitled for liquidated damages as prayed for by Appellant.

C) For such further and other reliefs as the nature and circumstances of the case may be deemed necessary."

17. Learned counsel for the Appellant submitted that when the 'condition subsequent' stipulated under Article 3.1.2 of the PPA is fulfilled, then party is not entitled to terminate the PPA. Referring to Article 3.3.3 of the PPA, learned Counsel submits that when there is "inability" on the part of the Seller (LANCO) to fulfill the 'condition precedent' specified under Article 3.1.2 of the PPA, the right to terminate the PPA arises. But in this case, the 'condition subsequent' i.e., the mandate to obtain Environmental Clearance [EC] under Article 3.1.2 (i) stood complied with on 24.02.2011, when EC was granted to LANCO by MOEF, therefore, the right of the Respondent No.2 to terminate the PPA as per Article 3.3.3 for non- fulfilment of 'condition subsequent' does not arise. In support of his contention, learned counsel draws our attention to the proposition laid down by the Hon'ble Supreme Court in the case of "Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd. &Anr.," ((2018) 3 SCC 716)), wherein it was held as under:

29. Learned counsel for Respondent No.2 submitted that Article 3.3.3 of the PPA allows for a 10-month extension for fulfilling conditions subsequent in case of delays due to force majeure events. After this extended period, either party can terminate the PPA. The Respondent No.2 terminated the PPA after the said delay, and their right to do so was not waived. The termination was justified due to alterations in the underlying basis of the contract and was done on the understanding that force majeure clauses protect contracts for specific periods, and once the said period expires without fulfillment of conditions subsequent, the contract becomes freely terminable.

In view of the aforesaid, LVTPL has decided to exercise its right to terminate the PPA under Article 3.3.3as well as under the provisions of the Indian Contract Act, 1872. Accordingly, LVTP hereby terminates the PPA dated 25.9.2008 with effect from 27th September 2014.

Judgment in Appeal No.161 of 2018 Additionally, it may be noted that we reserve our right to seek refund of Rs. 51 crore which has been recovered by MSEDCL by wrongful invocation of Bank Guarantee No. 2008002IBGP0256 dated 19.08.2008 issued by IDBI Bank Limited."

46. We are of the view that during the process of revalidation of EC as per the High Court order dated 18.10.2011, though there was no stay granted by the High Court on the Environmental clearance granted on 24.02.2011, undertaking of any further construction activities by Respondent No.2 would be at its own risk. As such, any prudent Business men would not take such a risk in view of the possibility of EC not getting validated. At this stage, it is relevant to note that Respondent No.2 has not cited the non-signing of FSA as Force Majeure event in the termination letter dated 20.09.2014 as pointed out by the Appellant, but the reason cited for termination is delay in revalidation of EC, leading to non-fulfilment of Condition subsequent even after additional ten months period allowed for such fulfilment, and as per Article 3.3.3 they are entitled to terminate PPA by serving a written notice of 7 days. As per Clause 3.3.3, time period for fulfillment of Condition subsequent can be extended for equivalent period of Force Majeure event subject to maximum extension of 10 months and thereafter either party can terminate the PPA. In the present case, the Respondent No. 2 chose not to invoke this clause for termination of PPA when Force majeure condition regarding delay in grant of EC and then validation of EC was subsisting, and it is only after 6 years i.e. 72 Months of Effective date, PPA is terminated. It has been contended by learned counsel for Respondent No.2 that use of the word "thereafter" in Judgment in Appeal No.161 of 2018 Article 3.3.3 refers to the period after expiry of such 10 months as long as the condition subsequent is not met within the time specified under article 3.3.1. We find it difficult to accept this interpretation of termination rights, as it would tantamount to a situation that any party can terminate the PPA at any time even after commissioning of the project, had there been force majeure event leading to non-fulfilment of condition subsequent within specified time including extension period. This Clause, therefore, does not seem to provide for termination of PPA at any time even when the said Force Majeure condition is not even subsisting. As per our view, this clause gives the option to parties to terminate the PPA, if they so choose, if condition subsequent could not be fulfilled within this extended period, however during such period, Respondent No 2 chose not to invoke this clause for termination of PPA. Lets us examine, if the period prior to revalidation of EC (21.08.2014) be considered under Non-Natural Force majeure event under the PPA. From the Force majeure provisions, under Article 12.3 of the PPA, at the most, situation of delay in validation of EC may only come close to the provisions specified in Article 12.3(ii)(b). However, as the EC approval dated 24.02.2011 was not declared as unlawful etc. by the appropriate Court, the present non-natural Force majeure event fits in Article12.4 (e) as reproduced below: