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9. Under these circumstances, the Appellant, in exercise of the rights conferred under PPA issued a termination notice on 5.4.2011 to the HESCOM,R-2 terminating the PPA dated 01.2.2007. Thereupon, the Appellant sought open access and permission to sell power to third parties. The Respondent refused the same.

10. Therefore, the Appellant on 24.6.2011 filed a petition in O.P. No.28 of 2011 before the State Commission praying for declaration that the PPA stood terminated and for the consequent direction to Respondent to grant approval for the Appellant to sell the electricity to third parties.

xv) Thus, these defaults pointed out in the notice dated 3.2.2011 were not cured within 30 days. Hence, the Appellant sent a termination notice dated 5.4.2011 terminating the PPA. Thereupon, the Appellant sought for open access permission from the Respondent to sell the power generated from its projects to third parties. But this was refused by the Respondent on the ground that the PPA was subsisting.

xvi) In that situation, the Appellant on 24.6.2011 filed O.P.No.28 of 2011 before the State Commission praying for declaration that the PPA stood terminated and for a consequent direction to the Respondents to grant open access to the Appellant to sell the electricity to third parties.

41. In this Article a procedure is contemplated for termination of the PPA by the Appellant on HESCOM's(R2) default. As per Article 9.3.2 in the event of default committed by the HESCOM for non payment of the invoice amount as set out in Article 9.2.2, the generator, the Appellant may deliver a default notice containing the details of the events of the default and calling upon the HESCOM to remedy the same within 30 days. If those defaults have not been remedied within the time frame, then the generator Appellant may deliver a termination notice to the HESCOM,R2 by terminating the PPA and intimate the same to the State Commission. Upon the delivery of termination notice on the HESCOM(R2), the PPA will stand terminated and the generator will stand discharged of its obligations.

Company can't wait for over 6 months even without any hope for receiving the amounts any time in near future and when there is no hope for the Company that HESCOM will be able to pay the power supply bills in future and hence, the Company can't supply power to HESCOM. The Company has spent over Rs.53 Crores on the Power Project and it has to meet its financial obligations with the Banks(Lenders) and Employees. The Shareholders can't infuse funds for ever and fund the power supplies to HESCOM. Therefore, the PPA is ought to be terminated and the Company hereby serves the Notice of Termination under clause 9.3.2 and other applicable terms of the PPA and applicable legal provisions of Law. In fact, the Company has considered the PPA terminated automatically on the grounds of FRUSTRATION OF CONTRACT and other provisions of the PPA which made it automatically terminated. Though, Hon'ble Karnataka Regulatory Commission held that the PPA is valid and the Company is seeking review of the Orders of the Hon'ble Commission, the Company is serving this notice without prejudice to its rights under applicable provisions of Law to pursue available legal remedies.