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2021 (5) TMI 1081 - SC - Indian LawsReduction of the tariff payable by Appellant No. 1 from Rs. 6.10/kWh to Rs. 4.36/kWh and imposition of damages of Rs. 20,00,000/- for delay in commissioning the plant - Whether the Project of the Appellants was delayed by one day in terms of Power Purchase Agreement and whether the Commission was justified in imposing liquidated damages on the Appellant for such delay in commissioning the Project? - HELD THAT:- Reduction of applicable tariff is permissible Under Article 12.2 of the PPA only when there is delay in commissioning of the Project beyond the Scheduled Commissioning Date. As discussed above, there is no dispute that the Scheduled Commissioning date shall be 12 months from the effective date. There is no quarrel between the parties that the effective date is 17.10.2016. The interpretation Clause contains three provisions which are 1.2.1(k), 1.2.1(l) and 1.2.1(m). According to 1.2.1(k), any reference to a month shall mean a reference to a Calendar month as per the Gregorian Calendar. 1.2.1(l) provides that references to any date or period shall mean and include such date, period as may be extended pursuant to the agreement. As per Article 1.2.1(m), any reference to any period commencing from a specified date and until the specified day shall include both such day or dates. The conclusion of the Commission is not agreed upon that the definition of month is with reference only to one month and not more which is wrong a reading of the provision. The Commission applied 1.2.1(m) which refers to a period commencing from a specified date to a specified day for the purpose of including the date of the event. The Commission has committed an error in applying 1.2.1(m) when the provision that is applicable is 1.2.1(k) read with the definition of month in Article 21.1. There is a specific mention of 'twelve months' in the definition of 'SCOD' and Article 1.2.1(k) categorically provides that any reference to a 'Month' shall be a calendar month. Applicability of Article 1.2.1(k) excludes the operation of Article 1.2.1(m) to the facts of this case. The next contention of the Appellant is that actual injection of power into the Grid was on 17.10.2017 and as the Scheduled is 16.10.2017, the reduction of the tariff in view of the delay of 1 day in commissioning is justified. The alternate submission that is made by the Respondents that even assuming that the Scheduled Commissioning Date is 16.10.2017 and not 17.10.2017, the Respondents commissioned the Solar Plants on 16.10.2017 itself - There is no dispute that the power was injected from the solar plants on 17.10.2017. In view of the conclusion reached by us on the issue relating to the Scheduled Commissioning Date being 17.10.2017, it is not necessary to adjudicate the point relating to the requirement of actual injection of power into the Grid to decide the date of commissioning. The judgment of the Appellate Tribunal is upheld and the Appeals are dismissed.
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