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14. Referring to article 3.1.2A along with schedule-II of PPA, the Learned Counsel argued that the respondents were obliged to handover possession of land measuring 50 hectare (125 acres) to the appellant no.1 within three months of execution of the PPA i.e. by 26.09.2013, but the same was handed over to the appellant no.1 after about six months from the date of execution of the PPA, which default also entitled the appellants to terminate the PPA.

15. The Learned Counsel also invoked the principle of Contra Proforentem which provides that in case of any ambiguity in the terms of contract or two possible interpretations of these terms, the court will prefer ____________________________________________________________________________________ that interpretation which is more favorable to the party which has not drafted the contract. He submitted that in the present case, the project documents i.e. RFQ, RFP etc. are standard documents prepared by respondent no.4 RRVPNL, and therefore, the terms of these documents have to be read as well as understood in the manner favorable to the appellants, and if done so, it would be evident that the responsibility of procuring fuel by executing the requisite Fuel Supply Agreement with RSMML was upon the respondents and not of the appellants. The Learned Counsel also referred to doctrine of election to argue that once the parties have chosen a certain route for fulfillment of the terms of the contract, the same cannot be changed midway by insisting upon some alternate route. It is argued that the appellant no.1 through RRVPN, chose the route of competitive bid for the procurement and supply of power whereby it was a liability of procurers through their authorized representatives to sign the FSA, the respondent discoms cannot be permitted to now depart from such terms enumerated in the bidding documents to say that the appellant no.1 was to get the FSA signed and executed.

Issue No.(b):

47. The contention of the appellants in this regard is that the respondents failed to deliver to them 125 acres of land for construction of the power plant within the time prescribed under the PPA, which was the basic requirement for execution of the project and therefore, the respondents have committed flagrant breach of the terms of PPA on this count also. It is pointed out that the respondents ought to have handed over the possession of the land for the power project to appellant no.1 within three months of the execution of the PPA i.e. on or before 26.09.2013 but the land was actually handed over to appellant no.1 in the month of January, 2014 and therefore, the respondents have committee default of the terms of article 3.1.2A of the PPA which clearly entitled the appellants to terminate the PPA.

In addition, the Performance Guarantee of the Seller shall also be released forthwith."

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51. Perusal of the said clause of the PPA indicates that in case of inability of the procurers i.e. respondents to perform the obligations under article 3.1.2A which include handing over the possession of land for the power station, the time prescribed for the same had to be extended on a day-to- day basis subject to maximum additional time of six months and if the said obligation is not performed by the procurers within the said extended time period, the appellant no.1 was empowered to terminate the agreement by giving 7 days prior notice. In the instant case, as per the time period prescribed under article 3.1.2A of the PPA, the respondents were bound to handover the possession of the land to the appellants for the power project on or before 26.09.2013. Since the same was not done, the respondents were entitled to extension of time by further six months i.e. upto 26.03.2014 in terms of clause 3.3.3A of the PPA, and thereafter only was the PPA terminable at the option of the appellants by giving 7 days prior notice. It is the case of the appellants themselves that the possession of the land was handed over to them in the month of January, 2014, i.e. much before the expiry of the extended time period of six months provided in clause 3.3.3A and therefore, they were not entitled to terminate PPA on the basis of such default but only could have claimed extension of time for completion of the project.

Conclusion of the Tribunal:

60. Having regard to the above discussion, particularly on Issue no.(a) hereinabove, it is manifest that the procurers i.e. respondent nos. 1 to 3 have committed default / breach of the terms of the RFP project documents including the PPA as envisaged in article 14.2 (iii) of the PPA, and thus, the appellants have legally and validly terminated the PPA vide notice dated 19.07.2015. No events of default can be attributed to the appellants herein.

61. Hence, the findings of the Learned Commission in this regard cannot be sustained. Accordingly, we hold that the respondent nos.1 to 4 have failed to discharge their contractual obligations towards the appellant arising between the parties in terms of the RFP project documents as well as the PPA, and have committed flagrant breach of the terms of the PPA on account of which the appellants were left with no other option but to terminate the PPA. As a necessary corollary, we also hold the respondents liable to return the amounts of money received by them from the appellants either on account of Performance Bank Guarantees or towards acquisition of equity share of Gurha thermal Power Company Limited, towards the price of land acquired for setting up of power project, towards the ____________________________________________________________________________________ investments made by appellants and also to compensate the appellants for the expenses incurred by them for running, operating and maintaining the appellant no.1 company.