M. P. POWER MANAGEMENT COMPANY LTD.versusRENEW CLEAN ENERGY PVT. LTD. & ANR.

                         [2018] 3 S.C.R. 829                             829


        M. P. POWER MANAGEMENT COMPANY LTD.                              A
                                  v.
         RENEW CLEAN ENERGY PVT. LTD. & ANR.
                   (Civil Appeal No. 3600 of 2018)
                          APRIL 05, 2018                                 B
        [RANJAN GOGOI AND R. BANUMATHI, JJ.]
       Contract – Termination of Contract – Appellant issued a
Request for Proposal (RFP) for long term procurement of 300 MV
power from Grid connected Solar Energy Sources through tariff
                                                                         C
based competitive bidding – Respondent no.1 was selected –
Pursuant thereto, Power Purchase Agreement (PPA) was executed
between the appellant and respondent no.1 for sale and procurement
of solar power, for which, respondent no.1 submitted bank
guarantee – Respondent no.1 was unable to fulfill prescribed
conditions within stipulated period – Consequently, PPA terminated       D
by the appellant and further, imposed penalty on respondent no.1 –
Penalty amount was to be encashed from bank guarantee – High
Court set aside the order of termination of the contract, however,
maintained the invocation of bank guarantee – On appeal, held: –
The termination of contract was not fair – Respondent no.1 was
                                                                         E
unable to obtain the requisite land for establishing the power plant
and on its request, the State allotted land to the respondent on lease
– However, land was found to be heavily encroached and there was
stiff resistance every time respondent no.1 tried to approach the
land – Respondent no.1 sought for change of location of the project,
which was granted – Thereafter respondent no.1 purchased another         F
land and undertook the construction activities and the project in
an advance stage of synchronization – The same was notified to the
appellant by communication dated 10.07.2017 stating that the
commissioning of the project was in final stage – However, still
appellant terminated the contract by its order dated 11.08.2017 –
                                                                         G
Respondent No.1 had spent substantial amount in development of
the project in the changed location – The delay in commissioning
the project was due to unavoidable circumstances like resistance
faced at the allotted site and subsequent change of location of the
project – These circumstances, though not a Force Majeure event,
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                                 829
830            SUPREME COURT REPORTS                      [2018] 3 S.C.R.


A     time taken by respondent No.1 in change of location and
      construction of the plant have to be kept in view for counting the
      delay – Further, since the contract permits imposition of penalty,
      respondent no.1 liable to pay penalty in terms of clause 2.5.1 of the
      PPA for delay – But the action of the appellant in terminating the
      contract arbitrary and rightly set aside by the High Court – Insofar
B
      as bank guarantee is concerned, Supreme Court stayed the order
      of the High Court subject to restitution by the appellant of the
      amount covered by the bank guarantee which has been invoked
      which is said to have been complied with by the appellant.
            Dismissing the appeal, the Court
C
             HELD: 1. Respondent No.1 was unable to obtain the
      requisite land, for establishing the power plant and on its request,
      the State Government had allotted 96.73 acres of land at district
      Rajgarh to the appellant on lease. According to respondent No.1,
      upon initiation of measurement and demarcation exercise by the
D     revenue officials, the land was found to be heavily encroached
      and there was stiff resistance which continued every time
      respondent No.1 tried to approach the said land and therefore,
      respondent No.1 could not access the project site and commence
      any construction activities. On request by respondent No.1 by
E     its letter dated 29.09.2016, respondent No.1 sought for change
      of location of the project. The Board of Directors considered the
      request of respondent No.1 and by Resolution dated 29.12.2016
      allowed change of location of the project. Thereafter, respondent
      No.1 purchased the land to an extent of 253 acres in village
      Bansara and Pipriya Rai in Ashok Nagar district within a period
F     of about eighty three days from the date of the appellant’s
      approval. After acquiring the land, respondent No.1 undertook
      the construction activities and the project in an advanced stage
      of synchronization as early as on 10.07.2017. The same was
      notified to the appellant by communication dated 10.07.2017
G     stating that the commissioning of the project is in final stage and
      that the expected date of commissioning of the project is
      31.08.2017 which according to respondent No.1 is ahead of the
      scheduled commissioning date i.e. 07.09.2017 in terms of the
      PPA.[Para 10][834-H; 835-A-D]

H           2. Even when respondent No.1 has undertaken the
  M.P. POWER MANAGEMENT COMPANY LTD. v. RENEW                            831
              CLEAN ENERGY PVT. LTD.

construction activities in the changed location and informed the         A
appellant that the expected date of commissioning of the project
is 31.08.2017, the appellant terminated the contract by its order
dated 11.08.2017. Respondent No.1 stated in its counter affidavit,
that it has got sanction of the term debt facility of Rs.267.37 crores
from PTC India Financial Services Limited and has spent huge
                                                                         B
amount in purchasing the land to an extent of 253 acres in Ashok
Nagar district. Respondent No.1 has also spent substantial
amount in development of the project in the changed location
and reached an advanced stage of commissioning the project by
31.08.2017. The delay in commissioning the project appears to
be due to unavoidable circumstances like resistance faced at the         C
allotted site in Rajgarh district and subsequent change of location
of the project. These circumstances, though not a Force Majeure
event, time taken by respondent No.1 in change of location and
construction of the plant have to be kept in view for counting the
delay. Having invested huge amount in purchasing the land and
                                                                         D
development of the project at Ashok Nagar district and when the
project is in the final stage of commissioning, the termination of
the contract is not fair. [Para 11][835-E-H; 836-A]
      3. The High Court observed that the delay in completing
the project was only for sixteen days. But according to the
appellant, respondent No.1 was granted time period of 210 days           E
to complete the Conditions Subsequent after which the penalty
was leviable for the delay and if the delay exceeded more than
nine months, the appellant could terminate the contract.
According to appellant, the delay was not of sixteen days; but the
said delay of sixteen days is beyond the period of nine months           F
permissible under the PPA. Suffice to note that in cases of delay,
Articles 2.5 and 2.6 provide for levy of penalty. As observed by
the High Court, since the contract permits imposition of penalty,
respondent No.1 is liable to pay penalty in terms of clause 2.5.1
of the PPA for the delay. But the action of the appellant in
terminating the contract is arbitrary and was rightly set aside by       G
the High Court. [Para 12][836-B-D]
      4. While setting aside the termination of the contract, the
High Court maintained the action of invocation of bank guarantee
in terms of clause 2.5.1 of the PPA. This Court has stayed the
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832            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     order of the High Court subject to restitution by the appellant of
      the amount covered by the bank guarantee which has been
      invoked which is said to have been complied with by the appellant.
      Interest of justice would be met by directing respondent No.1 to
      pay penalty amount of Rs.11,95,54,200/- imposed upon respondent
      No.1 by the appellant. [Para 13][836-E]
B
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3600
      of 2018.
            From the Judgment and Order dated 18.08.2017 of the High Court
      of Madhya Pradesh Principal Seat at Jabalpur in Writ Petition No. 12432
C     of 2017.
            Mukul Rohatgi, Sr. Adv., Purushaindra Kaurav, AG, Mishra
      Saurabh, Ankit Kr. Lal, Ms. Anuradha Mishra, Advs. for the Appellant.
           K. V. Vishwanathan, Sr. Adv., Ms. Mazag Andrabi, Ms. Vrinda
      Bhandari, Varun Kapur, Bharat Vinod Sharma, Advs. for the
D     Respondents.
            The Judgement of the Court was delivered by
            R. BANUMATHI, J. 1. Leave granted.
             2. This appeal arises out of the judgment passed by the High
E     Court of Madhya Pradesh, Principal Seat at Jabalpur in and by which
      the High Court allowed the Writ Petition No.12432 of 2017 setting aside
      the order of termination of contract dated 11.08.2017 while maintaining
      the appellant’s action on invocation of bank guarantee in terms of clause
      2.5.1 of the contract.
F           3. Brief facts which led to filing of this appeal are as follows:
             The appellant-M.P. Power Management Company Ltd. initiated
      the process of procurement of power from Grid Connected Solar Energy
      through tariff based competitive bidding for meeting its Renewable
      Purchase obligations in the State of Madhya Pradesh. Accordingly, a
G     Request for Proposal (RFP) dated 06.05.2015 was issued by the appellant
      for long term procurement of 300 MW power from Grid connected Solar
      Energy Sources through tariff based competitive bidding. Out of 100
      bidders who participated in the bidding process, respondent No.1-ReNew
      Clean Energy Private Ltd. was selected on the basis of cheaper merit
      order rates. The appellant issued a Letter of Intent dated 23.10.2015 in
H
  M.P. POWER MANAGEMENT COMPANY LTD. v. RENEW                               833
      CLEAN ENERGY PVT. LTD. [R. BANUMATHI, J.]

favour of respondent No.1 allotting 51 MW capacity at quoted tariff of      A
Rs.5.457/kwh for twenty five years which was accepted by respondent
No.1 by its consent letter dated 26.10.2015. A Power Purchase
Agreement (PPA) dated 10.11.2015 was executed between the appellant
and respondent No.1 for sale and procurement of 51 MW solar power,
for which, respondent No.1 submitted a bank guarantee from respondent
                                                                            B
No.2-Bank for an amount of Rs.15,30,00,000/- valid till January, 2018.
       4. Since respondent No.1 was unable to obtain the requisite land
for establishing the power plant, respondent No.1 requested assistance
from the State Government. Accordingly, the Collector, District-Rajgarh
by order dated 21.04.2016 allotted 96.73 acres of revenue land to MP
New and Renewable Energy Department for further allotment on lease          C
to respondent No.1. This was done by the appellant even though the
land procurement was the obligation of the bidder.
       5. According to respondent No.1, there were difficulties in
accessing the land, because when measurement of land was taken on
29.06.2016, it was found encroached and the project team faced heavy        D
resistance, physical attacks etc. and therefore, respondent No.1 vide its
letter dated 29.09.2016 requested the appellant to allow to change of
location of the project. The said permission sought for by respondent
No.1 was granted by the appellant by its Resolution dated 29.12.2016.
The relevant portion of the Resolution reads as under:-                     E
      “Resolved that condition for not allowing change of location after
      210 days from signing of PPA be relaxed and following Solar
      Power developers be allowed to change the location of their
      respective project, subject to provision of clause 2.5 and 2.6 of
      the PPA.”                                                             F
        6. After permission was granted to change the location of the
project, respondent No.1 purchased lands to an extent of about 253 acres
in villages Bansara and Pipriya Rai in Ashok Nagar district and undertook
the development/construction activities. On 10.07.2017, respondent No.1
wrote to appellant that “commissioning process was in final stages          G
and we expect to commission the plant on 31.08.2017 (tentative
date), which is ahead of scheduled commissioning date of
07.09.2017.”
     7. As per clause 2.5.1 of the PPA, a maximum period of nine
months beyond 07.06.2016 for achieving Conditions Subsequent enables
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834            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     the appellant to terminate the agreement if respondent No.1 failed to
      satisfy the Conditions Subsequent by this date along with penalty which
      was to be calculated as per clause 2.5.1 of the PPA. In the light of the
      abovesaid provisions of the PPA, the appellant by order dated 11.08.2017
      terminated the PPA and imposed a penalty of Rs.11,95,54,200/- on
      respondent No.1. Being aggrieved, respondent No.1 filed Writ Petition
B
      No.12432 of 2017 before the High Court praying that the appellant be
      directed not to give effect to termination and encashment of performance
      bank guarantee. The High Court vide impugned judgment dated
      18.08.2017 partly allowed the writ petition setting aside the order of
      termination of the contract while maintaining the invocation of the bank
C     guarantee.
            8. We have heard the learned counsel appearing for the parties
      and perused the impugned judgment and materials on record.
             9. Clause 2.1 of the PPA required respondent No.1 to fulfil all
      Conditions Subsequent within a period of 210 days from the effective
D     date i.e. 06.06.2017, failing which Article 2.5 of the PPA allowed further
      extension up to nine months for fulfillment of the Conditions Subsequent
      subject to payment of liquidated damages in terms of the PPA. Clause
      2.5 of the PPA reads as follows:-
            2.5 DELAY            IN     ACHIEVING            CONDITIONS
E           SUBSEQUENT
            2.5.1. In case of delay in achieving any of the Conditions
            Subsequent under clause 2.1 (a to h), as may be applicable,
            MPPMCL shall encash CPG (submitted by Seller @ Rs.30 Lakhs/
            MW) as under, subject to Force Majeure:
F
                a) Delay from 0-3 months - 1% per week.
                b) Delay from 3-6 months - 2% per week for the period
                   exceeding 3 months, apart from (a) above.
                c) Delay from 6-9 months - 3% per week for the period
G                  exceeding 6 months, apart from (a) and (b) above.
                d) In case of delay of more than 9 months, MPPMCL shall
                   terminate PPA and release balance amount of CPG.
            10. Since respondent No.1 was unable to obtain the requisite land,
      on request by respondent No.1, the State Government allotted 96.73
H
   M.P. POWER MANAGEMENT COMPANY LTD. v. RENEW                                 835
       CLEAN ENERGY PVT. LTD. [R. BANUMATHI, J.]

acres of land at district Rajgarh to the appellant for being allotted to       A
respondent No.1 on lease. According to respondent No.1, upon initiation
of measurement and demarcation exercise by the revenue officials, the
land was found to be heavily encroached and there was stiff resistance
which continued every time respondent No.1 tried to approach the said
land and therefore, respondent No.1 could not access the project site
                                                                               B
and commence any construction activities. On request by respondent
No.1 by its letter dated 29.09.2016, respondent No.1 sought for change
of location of the project. The Board of Directors considered the request
of respondent No.1 and by Resolution dated 29.12.2016 allowed change
of location of the project. Thereafter, respondent No.1 purchased the
land to an extent of 253 acres in village Bansara and Pipriya Rai in           C
Ashok Nagar district within a period of about eighty three days from the
date of the appellant’s approval. After acquiring the land, respondent
No.1 undertook the construction activities and the project in an advanced
stage of synchronization as early as on 10.07.2017. The same was
notified to the appellant by communication dated 10.07.2017 stating that
                                                                               D
the commissioning of the project is in final stage and that the expected
date of commissioning of the project is 31.08.2017 which according to
respondent No.1 is ahead of the scheduled commissioning date i.e.
07.09.2017 in terms of the PPA.
        11. Even when respondent No.1 has undertaken the construction
activities in the changed location and informed the appellant that the         E
expected date of commissioning of the project is 31.08.2017, the appellant
terminated the contract by its order dated 11.08.2017. As pointed out by
respondent No.1 in its counter affidavit, on 06.06.2016, respondent No.1
has got sanction of the term debt facility of Rs.267.37 crores from PTC
India Financial Services Limited and has spent huge amount in purchasing       F
the land to an extent of 253 acres in Ashok Nagar district. Respondent
No.1 has also spent substantial amount in development of the project in
the changed location and reached an advanced stage of commissioning
the project by 31.08.2017. The delay in commissioning the project appears
to be due to unavoidable circumstances like resistance faced at the allotted
site in Rajgarh district and subsequent change of location of the project.     G
These circumstances, though not a Force Majeure event, time taken
by respondent No.1 in change of location and construction of the plant
have to be kept in view for counting the delay. Having invested huge
amount in purchasing the land and development of the project at Ashok
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836                SUPREME COURT REPORTS                        [2018] 3 S.C.R.


A     Nagar district and when the project is in the final stage of commissioning,
      the termination of the contract is not fair.
             12. The High Court observed that the delay in completing the
      project was only for sixteen days. But according to the appellant,
      respondent No.1 was granted time period of 210 days to complete the
B     Conditions Subsequent after which the penalty was leviable for the delay
      and if the delay exceeded more than nine months, the appellant could
      terminate the contract. According to appellant, the delay was not of
      sixteen days; but the said delay of sixteen days is beyond the period of
      nine months permissible under the PPA. In the light of our observations
      above, we are not inclined to go into the merits of this contention. Suffice
C     to note that in cases of delay, Articles 2.5 and 2.6 provide for levy of
      penalty. As observed by the High Court, since the contract permits
      imposition of penalty, respondent No.1 is liable to pay penalty in terms of
      clause 2.5.1 of the PPA for the delay. But the action of the appellant in
      terminating the contract is arbitrary and was rightly set aside by the
D     High Court.
             13. While setting aside the termination of the contract, the High
      Court maintained the action of invocation of bank guarantee in terms of
      clause 2.5.1 of the PPA. By order dated 22.09.2017, this Court has
      stayed the order of the High Court subject to restitution by the appellant
E     of the amount covered by the bank guarantee which has been invoked
      which is said to have been complied with by the appellant. In our view,
      interest of justice would be met by directing respondent No.1 to pay
      penalty amount of Rs.11,95,54,200/- imposed upon respondent No.1 by
      the appellant.

F            14. In the result, the appeal is dismissed. The respondent No.1
      shall pay the penalty of Rs.11,95,54,200/- to the appellant within a period
      of four weeks from the date of this judgment. No costs.


      Ankit Gyan                                                   Appeal dismissed.
G




H