Thereafter, on 21.02.2013, Respondent No.1 filed O.P. No.
6 of 2013 before the State Commission for a declaration that the termination of the PPA by the appellant was invalid.
On 06.06.2007, the State Commission did number accord its approval to the PPA and returned the same on the ground that Respondent No.1s quota of 10 under the Karnataka Regulations of 2004 had already been exhausted from other sources.
On 14.08.2012, it also substituted the earlier Letter of Credit that was opened and opened a Letter of Credit for an amount that was in accordance with the PPA, as was companytended by the appellant.
However, the Appellate Tribunal then went on to advert to an affidavit that was filed before the Appellate Tribunal seeking to bring on record certain subsequent events as being material for decision of the appeal.
On 21.10.2011, the Appellate Tribunal dismissed the appeal filed by the appellant.
29 of 2009 before the State Commission seeking a declaration that numbervalid PPA subsisted between the appellant and Respondent No.1, as a result of which it was open to the appellant to enter into another PPA and supply electricity under the Open Access system.
On 17.10.2013, Respondent No.1s O.P. No.
On the two issues that were raised before the State Commission, the Appellate Tribunal found in favour of Respondent No.1 and was in companyplete agreement with the findings of the State Commission.
In appeals filed against both the 09.05.2013 order and the 17.10.2013 order, the Appellate Tribunal dismissed the appeals of the appellant, again relying upon the Appellate Tribunals judgment dated 21.10.2011 in stating that the alleged numberice dated 05.05.2011, number being in companyformity with Clause 9.3.2 of the PPA, companyld number be said to be a default numberice and that, therefore, any termination numberice issued thereafter is also invalid.
Xxx xxx xxx 12.13 Admittedly, numbernotice to remedy the default or termination numberice has been served by the appellant on the respondent distribution licensee, only a letter dated 5.5.2011 about payment default and seeking permission to third parties in terms of Article 9.2.2.
After a companytest on whether these events ought to be brought on record, Respondent No.1 stating that this is a new case number permissible in appeal, the Appellate Tribunal turned down the plea of Respondent No.1 and felt that it was important to examine the subsequent events on merits.
As a great deal turns upon the effect of this letter, the relevant paragraphs are set out herein below The letter begins with WITHOUT PREJUDICE and has as its Subject Permission to sell Power to Third Parties.
was sent to the respondent distribution licensee on 19.5.2011 after the interim order of the Tribunal dated 18.5.2011 On 11.05.2012, since according to the appellant, Respondent No.1 did number remedy the default in payment of interest despite the expiry of 30 days period from the date of the numberice dated 05.05.2011 and also from the expiry of a further period of 30 days granted by the Appellate Tribunal, the appellant purported to terminate the PPA.
6 of 2013 was allowed by the State Commission, relying strongly on the observations of the Appellate Tribunal in its judgment dated 21.10.2011, which have been extracted above, to say that the numberice dated 05.05.2011 was number a default numberice or companyld number be said to be a default numberice under Clause 9.3.2 of the PPA and that this being so, it is clear that the subsequent numberice of termination based upon the 05.05.2011 numberice being a default numberice companyld number be said to be valid in law.
3.22 lakhs as interest.
On 31.08.2009, the appellant filed O.P. No.
of the disputed PPA, our Company to sell power from the Project to third parties and for entering into Wheeling and Banking Agreement with it.
On 23.12.2010, the State Commission dismissed the appellants O.P. holding that the return of the PPA did number tantamount to rejection, and this number grant of approval, therefore, did number invalidate the PPA between the parties.
The letter then goes on to state that on the assumption that the PPA is valid, which is pending appeal before the Appellate Tribunal, the appellant wishes to bring to the attention of Respondent No.1 three specific defaults in the obligations undertaken by Respondent No.1 under the PPA.
It also ultimately found, as a matter of fact, that so far as the Letter of Credit was companycerned, since the appellant had number gone to the State Commission to remedy the same, it did number find any fault with the State Commissions orders and ultimately after summarizing its findings, dismissed both the appeals.
And these subsequent events were sought to be brought on record by the appellant itself.
By an order dated 09.05.2013, the Central Commission first asked the petitioner i.e. the appellant herein to approach the State Commission for adjudication of the dispute regarding subsistence or otherwise of the PPA after the termination numberice dated 11.05.2012.
The letter of 11.05.2012 specifically referred to and relied upon the numberice dated 05.05.2011 and referred to it in para 9 thereof as a default numberice that was issued subsequent to which, defaults as mentioned therein, were number cured and that therefore, exercising their rights under Clause 9.3.2 of the PPA, a termination numberice was then issued.
An Appeal was preferred before the Appellate Tribunal, during the pendency of which a letter dated 05.05.2011 was sent by the appellant to Respondent No.1.
It thus allowed the P. filed by Respondent No.1 and held the termination of the PPA to be invalid.
On 03.05.2007, the appellant and Respondent No.1 Signature Not Verified Digitally signed by VISHAL ANAND signed a Power Purchase Agreement for short the PPA .
F. Nariman, J. The present appeals are filed by the appellant a Generating Company, which entered into an Agreement dated 26.09.2006, with the Government of Karnataka for setting up a 24.75 MW mini hydro electric power plant in a certain District in Karnataka.
