Order in Case No. 247 of 2019 Page 1 Before the MAHARASHTRA
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Before the MAHARASHTRA ELECTRICITY REGULATORY COMMISSION World Trade Centre, Centre No.1, 13th Floor, Cuffe Parade, Mumbai 400 005 Tel. No. 022 22163964/65/69 Fax. 022 221639761 E-mail: [email protected] Website: www.merc.gov.in Case No. 247 of 2019 Petition filed by Vidarbha Industries Power Ltd. - Generation Business challenging the Termination Notice dated 20 April, 2019 issued by Adani Electricity Mumbai Limited- Distribution Business for termination of Power Purchase Agreement dated 14 August, 2013. Coram I.M. Bohari, Member Mukesh Khullar, Member Vidarbha Industries Power Limited-Generation (VIPL-G) ……..Applicant V/s Adani Electricity Mumbai Limited-Distribution (AEML-D) ………Respondent No.1 Axis Bank Ltd. ……….Respondent No. 2 Appearance: For VIPL-G : Ms. Deepa Chavan ( Counsel ) Shri Venkatesh (Adv.) For AEML-D : Shri Vikram Nankani (Counsel) Shri Ramanuj Kumar (Adv.) For Axis Bank : Shri Sitesh Mukherjee (Adv.) ORDER Date: 16 December, 2019 1. Vidarbha Industries Power Limited- Generation Business (VIPL-G) has filed its Case (Case No. 247 of 2019) dated 30 August, 2019 (Main Petition) under Section 86(1)(f) of Order in Case No. 247 of 2019 Page 1 the Electricity Act 2003 (EA), challenging the legality of the Termination Letter dated 20 April, 2019 (Termination Notice) issued by Adani Electricity Mumbai Limited- Distribution Business (AEML-D) under the Power Purchase Agreement (PPA) dated 14 August 2013 entered into between AEML-D and VIPL-G. VIPL-G has impleaded AEML-D and Axis Bank (one of the Lenders) as Respondents in the matter. 2. On 5 September, 2019, VIPL-G filed an Application (Impleadment Application) seeking impleadment of other Lenders i.e. State Bank of India, Bank of Baroda, Bank of Maharashtra, Oriental Bank of Commerce and Syndicate Bank. Further, on 23 September, 2019, VIPL-G filed another Application (Amendment Application, MA 35 of 2019 in Case No. 247 of 2019) seeking permission to amend the Petition in Case No. 247 of 2019. In the said Amendment Application, VIPL-G has included the details of amendment sought by it and also certain additional grounds for the relief sought in Main Petition. 3. Hearing on Main Petition in the Case No. 247 of 2019 was held on 26 September, 2019. AEML-D sought time to file its response in view of substantial voluminous amendments filed by VIPL-G in the matter. VIPL-G also sought time to file a separate Application confining the grounds for Ad-interim stay sought by it. Same was granted by the Commission. AEML-D was directed to file its reply on VIPL-G’s aforesaid Application. 4. Accordingly, VIPL-G on 27 September, 2019 filed its Interim Application seeking interim relief (Interim Relief Application , MA 36 of 2019 in Case No. 247 of 2019) in the matter. 5. This Interim Relief Application was disposed of by the Commission vide its Order dated 17 October, 2019, inter alia, directing the Parties to maintain the status quo till the Commission decides the Main Petition. For expeditious disposal of the Case No. 247 of 2019 and other Applications therein, all the Parties were directed to complete their pleadings in Main Petition and other applications therein within 15 days. Also, the Commission directed all the Parties to make all efforts/action for protecting the interest of consumers as stipulated below: “ 27. For expeditious disposal of the Case No. 247 of 2019 and other applications therein, all the Parties are directed to complete their pleadings within 15 days. During this status-quo period in the matter, till the Case No. 247 of 2019 is finally taken up by the Commission, the Commission directs the Parties as follows: a) VIPL-G shall take all necessary actions to execute FSA for Unit-1 under SHAKTI Scheme….. Order in Case No. 247 of 2019 Page 2 b) VIPL-G should file its submission demonstrating its readiness to commence its generation of electricity from the Unit-2 on immediate basis independent of any pending claims/litigation. VIPL-G should also include the steps taken for complying with the provisions of Performance Bank Guarantee of Rs 180 Crore as stipulated under the amended PPA approved by the Commission in Order dated 28 September 2018 in Case No. 224 of 2018. c) AEML-D shall be at liberty to continue to procure in the short term its shortfall in power due to non-availability of Butibori power station. d) …..Project Lenders/Axis Bank shall file its preparedness for exercising its rights of substituting the Seller. In addition, Axis Bank can also submit its position as regards financial support to VIPL-G for immediately operationalizing the plant. ” 6. Accordingly, AEML-D submitted status of its compliance on 4 November, 2019 stating that it duly complied with the aforesaid direction issued by the Commission. On 5 November, 2019, the Lenders made their submissions indicating their preparedness for exercising their rights of substituting the Seller and also submitting their inability as regards financial support to VIPL-G for immediately operationalising the plant. 7. On 1 November, 2019, VIPL-G filed another Application (Clarification Application) registered as MA 41 of 2019 in Case No. 247 of 2019, seeking directions to AEML-D in compliance with the Order dated 17 October, 2019 passed by the Commission in M.A. No. 36 of 2019 in Case No. 247 of 2019. Also, on 4 November, 2019, AEML-D filed its submission opposing the VIPL-G’s Application seeking amendment of the main Petition. 8. In the mean-time, on 4 October, 2019, AEML-D filed its replies on the Main Petition and VIPL-G’s Impleadment Application. AEML-D also filed its own Application (AEML- D’s Application) registered as MA 37 of 2019 in Case No. 247 of 2019 seeking deletion of Axis Bank (the Respondent No. 2) from the array of Parties, on the ground of mis- joinder of Parties. 9. At the hearing held on 22 November, 2019, Advocate for AEML-D insisted on disposal of its MA 37 of 2019 before the Main Petition of the VIPL-G was heard. VIPL-G also clarified that it was not pressing its impleadment application. The Advocate for AEML- D confirmed that it was not objecting to VIPL-G’s Amendment Application and stated that VIPL-G may submit a consolidated Amended Main Petition to which AEML-D would reply. The Parties made their extensive arguments on the MA filed by AEML-D seeking deletion of Axis Bank (the Respondent No. 2) from the array of Parties. The written submissions of their arguments were submitted by the Parties thereafter. AEML- D’s Application was dismissed by the Commission vide its Order dated 29 November, 2019 allowing Axis Bank as the necessary responding Party in the Main Petition. In the meantime, VIPL-G filed its Amended Petition on 26 November, 2019. Order in Case No. 247 of 2019 Page 3 The main prayers of VIPL-G in the Amended Petition are as under:- “ a) Admit the present Petition; b) Set aside Termination Letter dated 20.04.2019 and the Procurers Preliminary Default Notice dated 18.01.2019 issued by AEML; c) Declare that the Termination Letter dated 20.04.2019 and the Procurers Preliminary Default Notice dated 18.01.2019 issued by AEML to the VIPL is bad in law and against the clauses of the PPA; (c-1) Declare that Procurers Preliminary Default Notice dated 18.01.2019 issued by AEML to VIPL as bad in law and contrary to the PPA dated 14.08.2013; d) Declare that the PPA dated 14.08.2013 entered between the AEML and VIPL is valid and subsisting; e) Pending the hearing and final disposal of the Petition order / direct the continuation of the transaction under the PPA dated 14.08.2013 entered between the AEML and VIPL; (e-1) pending the hearing and final disposal of this Petition stay the effect, operation and implementation of the Termination Letter dated 20.04.2019 issued by AEML to the VIPL; (e-2) pending the hearing and final disposal of the Petition stay the effect, operation and implementation of the procurer’s preliminary default notice dated 18.01.2019 issued by AEML to the VIPL f) Pending the hearing and final disposal of the Petition restrict and restrain AEML to enter into any other Power Purchase Arrangement and / or Agreement for any long term or medium-term period; (g-1) Pending the hearing and final disposal of the Petition, direct the parties to continue discharge their respective PPA obligations including generation and supply of power by VIPL and payment by AEML towards the same without any set-off. (g-2) Allow the recovery of actual cost of coal by VIPL in respect of Unit 2 in the event VIPL commences the operation of Unit 2. (g-3) Allow the recovery of actual cost of coal by VIPL in respect of Unit 1 pursuant to execution of FSA in respect of Unit 1 in the event VIPL commences the operation of Unit 1. (g-4) Costs of this Petition be provided for.; i. ;” Order in Case No. 247 of 2019 Page 4 10. VIPL-G’s amended Application avers as under : 11.1 The instant Petition has been filed by VIPL-G challenging the legality of the Termination Letter dated 20 April, 2019 issued by AEML-D by which AEML-D has terminated the PPA executed between VIPL-G and AEML-D. AEML-D has issued the Termination Letter in violation of Article 11.1.1, Article 11.2.1 of the PPA, the Memorandum of Undertaking (MoU) dated 29 August, 2018, Letter dated 3 September, 2018 signed between the Parties concerned in the said transaction.