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18. Further, he has submitted that the plaintiff cannot unilaterally terminate the PPA and pray for injunctive relief against the Bank Guarantee, which was furnished by the plaintiff in furtherance of its obligations under the PPA. Therefore, until the dispute of the alleged deemed termination of the PPA is decided by the Commission, the issue of Bank Guarantee cannot be finally decided. He seeks prayers as made in the application.

19. Ms. Anusha Nagarajan, learned counsel appearing on behalf of the defendant No. 3, i.e., Tamil Nadu Generation and Distribution Corporation Limited, while reiterating the contentions made by the learned counsel for the applicant, additionally submitted that the plea of the plaintiff that the PPA is admitted to have been deemed to be terminated is incorrect and misconceived, as both the applicant and the defendant No. 3 have disputed the termination, as is evident from the letter dated April 29, 2022 from the applicant to the plaintiff and the letter dated May 5, 2022 issued by the defendant No. 3 to the plaintiff. The question as to whether the PPA has been deemed to have been terminated itself depends upon an interpretation of various provisions of the PPA, as well as appreciation of the facts and circumstances Neutral Citation Number:2023/DHC/000227 surrounding such alleged deemed termination. According to her, for instance, at least, the following will have to be considered:-

25. She has also contested the stand of the plaintiff that since the PPA has been deemed to be terminated, its provisions are no longer applicable, and therefore for seeking return of bank guarantee the plaintiff has to approach this Court. She stated that it is settled law that the existence of a contractual relationship is not a pre-condition for Neutral Citation Number:2023/DHC/000227 exercise of the jurisdiction of the commissions. Section 79(1) (f) does not mandate that the disputes between the entities must have arisen pursuant to or under an agreement. Therefore, even assuming that the PPA has terminated, CERC can still exercise jurisdiction to resolve the disputes between the plaintiff and the applicant and defendant No. 3.

42. Mr. Sethi further contended that the PPA having been deemed to be terminated by mutual consent of the parties as per Article 4.4 therein, the only dispute which remains is that of the Bank Guarantee which was given only to secure the performance of the PPA.

43. Mr. Sethi stated that it is settled law that no legal provision justifies withholding of performance security once the underlying Neutral Citation Number:2023/DHC/000227 agreement between the parties comes to an end. A Bank Guarantee is in the nature of a special contract depending upon the occurrence of a specific event and when the event has occurred, the guarantee comes to an end. In the present case, since the PPA stood deemed terminated w.e.f. February 25, 2022, the purpose of the performance security has been served and it came to an end and ought to be returned by the applicant. In this regard, reliance is placed upon the judgment of the Supreme Court in Syndicate Bank v. Vijay Kumar, (1992) 2 SCC 330. The plaintiff is legally entitled to seek return of such performance security and the applicant is under legal and contractual obligation to return the same. He submitted that retention or invocation of the performance security by the applicant will be ex-facie unlawful, arbitrary and illegal, and would also amount to unjust enrichment and misappropriation of the plaintiff's property. Further, the continued retention of the Bank Guarantee by the applicant with the looming threat of its invocation is causing irreparable damage to the plaintiff since the same is blocking its credit line to the extent of its value.