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28. The 2nd question relates to validity of the termination notice dated 28.12.2009.
29. According to the Appellant, under Article 3.4.1 of the original bid document, only the procurer had right to terminate the PPA in the event of default by the seller but this Article was revised before bidding to provide for a right to the Seller to terminate the PPA in addition to the Procurer's right. This was a change specifically made from the initial draft which gave the right to terminate to the Procurer only. Such a change was made to recognize the unconditional option to the Seller to terminate the PPA when the Judgement in Appeal No.184 of 2010 conditions subsequent is not satisfied for default or failure on the part of the Seller itself. In short, the case of the Appellant is, in terms of the Article 3.4.2 of the PPA, even the Appellant has the right to terminate the PPA even on his default subject to payment of liquidated damages as specified in the said Article and accordingly, the payment of liquidated charges was made and as such, the termination of the PPA by the Appellant, is valid.
42. According to the 2nd Respondent, the Appellant is taking advantage of its own wrongful act of not communicating due satisfaction of conditions subsequent relating to Fuel Supply Agreement which was already entered into.
Judgement in Appeal No.184 of 2010
43. There is a difference in the bidding documents originally circulated in February, 2006 and the bidding documents based on which the final bid was given. In the original documents, there was no reference to non fulfillment of conditions subsequent on account of reasons attributable to the Procurer and consequently the termination provision for non fulfillment of conditions subsequent gave only to the Procurer the right to terminate. But in the amended bidding documents, Article 3.1.2 provided for an event of non-fulfillment of conditions subsequent due to Procurer's failure to comply with its obligations. Consequently, the Article 3.4.2 recognized the right of the Seller also. This shows that the right of the Seller (Appellant) was to terminate the agreement on grounds of non-fulfillment of the conditions subsequent when there is no failure on its part and Judgement in Appeal No.184 of 2010 when the failure is attributable only to (Procurer) Gujarat Holding Company (R-2).
71. So from the reading of various Articles of the PPA, it is evident that obligation for executing the Fuel Supply Agreement is with the Appellant namely the Seller. The Seller after executing the FSA within a stipulated time frame has to provide a copy of the same to the Procurer. Admittedly, the Procurer had never stated that he would undertake any responsibility Judgement in Appeal No.184 of 2010 to arrange coal on behalf of the Seller. The Appellant was aware that the bids were invited under Case-1 bidding process and as such there was no question of either specifying the land or ensuring the availability of the Fuel for the project by the Procurer. It cannot be disputed that the bid documents under the PPA were accordingly amended to expressly exclude any obligation on the part of the Procurer to arrange/identify either land or fuel for the project. Under those circumstances, it can not be held that there is any obligation on the part of the Procurer (the 2nd Respondent ) to arrange coal for the project.