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TMI Blog2024 (8) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Power Purchase Agreement (PPA):. ..................................................... 17 Re: Applicability of the force majeure clause: ............................................................... 21 Conclusion: .............................................................................................................................. 26 PAMIDIGHANTAM SRI NARASIMHA, J. 1. The short issue arising from these appeals is whether the extension of the Scheduled Commissioning Date1 was occasioned under the force majeure clause of the Power Purchase Agreement2, and consequently, whether the reduction in tariff payable to the respondents is justified. While upholding the decision of the Appellate Tribunal for Electricity3 we have examined the scope and ambit of our appellate jurisdiction under Section 125 of the Electricity Act, 20034. We have held that the restrictive scope of appellate jurisdiction is a product not only of the statutory preconditions, but also a necessary measure to enable freedom to statutory regulator and Tribunal to develop sectorial laws through a principled and consistent approach. 2. Facts: Since the facts and the PPAs are similar in all three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extensions must be filed before it. Pursuant to this letter, the respondents filed a petition before the KERC seeking extension of time for the commercial operation of the project and invoked the force majeure clause in the PPA (Article 8.3). 2.8 During the pendency of the petition, the respondents' solar power project was commissioned on 24.08.2017, within the extended period of 24 months. 3. KERC's order: In its order dated 18.09.2018, the KERC rejected the various causes of delay put forth by the respondents and held that the force majeure clause must be strictly interpreted. First, delay in approval of the PPA by KERC was held to have no bearing on the initial obligations of the SPD in applying for approvals, loans, etc as the respondents had not proved the same. Second, it found that the respondent had applied for conversion of land only on 18.02.2016, over five months after signing the PPA and paid the charges only on 27.12.2016, after which it was allowed on 07.01.2017. Hence, the delay in conversion of land use was attributed to the respondent. Third, the delay in disbursement of loan also did not delay the implementation as the respondent had commenced implementation fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacuation approval were submitted on 25.02.2016, the final approval was only given on 22.08.2016, after a lapse of 5 months. Until this approval is given, the authorities will not prepare the bay SLD and layout drawings with estimation of bay erection. The bay intimation notice was received by the respondents only a few days before the original SCD, and it was 170 days after the grant of final evacuation approval. Hence, there was a delay in the construction of the bay that was not caused by the respondents. 4.3 Relying on other decisions by the APTEL, it held that the date of signing the PPA will not be the effective date, as provided in Article 1.1(xxviii). Rather, the PPA becomes effective only when it is approved by the KERC, which in this case was on 07.09.2015. Hence, 18 months must be calculated from this date. 4.4 The APTEL observed that the appellant had itself approved the extension of time by 6 months after a Technical Committee constituted by it had scrutinised all relevant documents. Hence, the appellant could not take the stance that the respondents were not diligent. Even before the KERC, the appellant had not objected to the grounds raised by the respondents, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoking force majeure as required under Article 8.3(b)(i). Further, he has also argued that the APTEL was not justified in granting late payment surcharge to the respondent as the same was not pleaded before the KERC or in appeal. 5.2 In regard the argument on force majeure, Mr. Nataraj has taken us through the various dates concerning approval for change in land use and the evacuation approval. He has submitted that the delay in securing these approvals is attributable to the respondents, who were required to obtain these permissions within the contractually stipulated period of 365 days under Article 2.1 of the PPA, and to finally commission the project within a period of 18 months. Despite being aware of these timelines, he submits that the respondents delayed the applications and payment of requisite fees. The government departments provided the approvals within a few days from the time when the respondents fulfilled all requirements. He therefore submits that the delay is attributable to the respondents and hence, as per Article 8.3(b)(iv), they cannot claim benefit of force majeure. Consequently, the tariff must be reduced as per Article 5.1 as a higher tariff increases t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions of the learned counsels, we must take note of the scope of our appellate jurisdiction under Section 125, which reads: "Section 125. (Appeal to Supreme Court): Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908..." 7.1 Section 100 of the CPC restricts the High Court's jurisdiction in second appeals to cases that involve 'substantial questions of law'. There are two components to this requirement - (i) there must be a 'question of law'; and (ii) such question of law must be 'substantial'. 7.2 In SEBI v. Mega Corporation Limited11, this Court analysed the meaning of 'question of law' to determine the scope of its appellate jurisdiction under Section 15Z of the SEBI Act, 199212. It held that this phrase is open textured and must be interpreted by looking at the words in their context13. The relevant portions are extracted: "17. The jurisdiction of the Supreme Court under Section 15Z to consider any qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law arising for consideration from the decision of the Tribunal. A question of law may arise when there is an erroneous construction of the legal provisions of the statute or the general principles of law. In such cases, the Supreme Court in exercise of its jurisdiction of Section 15Z may substitute its decision on any question of law that it considers appropriate. 20.2 However, not every interpretation of the law would amount to a question of law warranting exercise of jurisdiction under Section 15Z. The Tribunal while exercising jurisdiction under Section 15T, apart from acting as an appellate authority on fact, also interprets the Act, Rules and Regulations made thereunder and systematically evolves a legal regime. These very principles are applied consistently for structural evolution of the sectorial laws. This freedom to evolve and interpret laws must belong to the Tribunal to subserve the Regulatory regime for clarity and consistency. These are policy and functional considerations which the Supreme Court will keep in mind while exercising its jurisdiction under Section 15Z." 7.3 The above understanding of 'question of law' as a precondition to this Court's e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 2.2 in case of delay, provided that the delay is not attributable to the appellant or due to a force majeure event. 9.1 Article 2.5.1 permits the extension of the SCD in case the SPD is unable to fulfil its contractual obligations due to the appellant's default or there are force majeure events that affect either the appellant or the SPD. The list of force majeure events is set out in Article 8.3(a), and sub-clause (vi) is the most relevant for us. A party can invoke the force majeure clause subject to the conditions set out in Article 8.3(b). 9.2 Article 2.5.7 provides that subject to the other provisions of the PPA, the SPD is liable to pay liquidated damages if it is unable to supply power to the appellant by the SCD. Therefore, the payment of damages under this clause is subject to an extension of time under Article 2.5.1. Article 5.1 provides for the tariff rate payable to the SPD as Rs. 8.40 per unit. However, in cases of delay, subject to extension of time under Article 2.5, it provides that the lower of Rs. 8.40 per unit and the varied tariff applicable as on the date of commercial operation will apply. A plain reading of Article 5.1 makes it clear that the lower t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Default; or b. Force Majeure Events affecting BESCOM; or c. Force Majeure Events affecting the SPD, 2.5.2 The Scheduled Commissioning Date and the Expiry Date shall be deferred, subject to the reasons and limits prescribed in Clause 2.5.1 and Clause 2.5.3 for a reasonable period but not less than 'day for day' basis, to permit the SPD or BESCOM through the use of due diligence, to overcome the effects of the Force Majeure Events affecting the SPD or BESCOM, or till such time such Event of Default is rectified by BESCOM. 2.5.3. In case of extension occurring due to reasons specified in clause 2.5.1 (a), any of the dates specified therein can be extended, subject to the condition that the Scheduled Commissioning Date would not be extended by more than 6 (six) months. ... 2.5.6. As a result of such extension, the Scheduled Commissioning Date and the Expiry Date newly determined date shall be deemed to be the Scheduled Commissioning Date and the Expiry Date for the purposes of this Agreement. 2.5.7. Liquidated damages for delay in commencement of supply of power to BESCOMs. Subject to the other provisions of this agreement, if the SPD is unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement, action or omission to act is not due to the breach by the SPD or BESCOM, of any Law or any of their respective obligations under this Agreement); vi. Inability despite complying with all legal requirements to obtain, renew or maintain required licenses or Legal Approvals; vii. Fire, Earthquakes, explosions, accidents, landslides; viii. Expropriation and/or compulsory acquisition of the Project in whole or in part; ix. Chemical or radioactive contamination or ionizing radiation; or x. Damage to or breakdown of transmission facilities of either Party; b) The availability of the above item (a) to excuse a Party's obligations under this Agreement due to a Force Majeure Event shall be subject to the following limitations and restrictions: (i) The non-performing Party gives the other Party written notice describing the particulars of the Force Majeure Event as soon as practicable after its occurrence; (ii) The suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure Event. (iii) The non-performing Party is able to resume performance of its obligations under this Agreement, it shall give the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons under this Agreement due to a Force Majeure Event shall be subject to the following limitations and restrictions: ... (iv) The Force Majeure Event was not caused by the non performing Party's negligent or intentional acts, errors or omissions, or by its negligence/failure to comply with any material Law, or by any material breach or default under this Agreement..." 10.3 When these clauses are read together, it is clear that the SPD would be entitled to the benefit of Article 8.3(a)(vi) when it is unable to secure the necessary approvals and licenses required under the PPA, provided that there is no negligence or intentional act or omission on its part that caused this situation. 10.4 The entire dispute before the KERC and the APTEL revolves on a question of fact - whether the respondents were negligent or not diligent in securing approvals and hence, is the delay in commissioning attributable to them. The KERC's appreciation of the evidence has led it to the conclusion that the delay in commissioning was due to the respondents' delay in making the applications, despite the approval of the PPA. However, the APTEL has taken note of certain additional factors affectin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance with the notice requirement under Article 8.3(b)(i). We therefore reject the contentions of the appellant that force majeure does not apply in this case. 12. In light of the above findings of fact by the APTEL that the delay is not attributable to the respondents and that the force majeure clause is applicable, it rightly held that the extension of time under Article 2.5 is warranted and the commissioning of the project on 24.08.2017 is within the extended period of 24 months. Consequently, the APTEL also rightly held that there is no occasion for the imposition of liquidated damages under Articles 2.2 and 2.5.7 or for the reduction of tariff under Article 5.1 of the PPA. 13. Conclusion: After considering the learned counsels' submissions in light of the above findings of the APTEL, we find that no substantial question of law arises in the present case. The APTEL has primarily decided a question of fact as to the attributability of the delay, and from the above, it is clear that the APTEL's findings are neither illegal nor unreasonable. Hence, we find no reason to interfere with the same. 14. Lastly, we also reject the appellant's contention that the APTEL's direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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