Ntpc Vidyut Vyapar Nigam Ltd v. Oswal Woolen Mills Ltd

NAVIN CHAWLA, J SEPTEMBER 25, 2018/rv/RN/vp

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. (COMM) 495/2016 Reserved on: 5th September, 2018 Date of decision :25th September, 2018 NTPC VIDYUT VYAPAR NIGAM LTD. ..... Petitioner Through: Mr.Vikas Singh, Sr. Adv. with Mr.Bharat Sangal, Ms.Babita Kushwaha, Ms.Deepika Kalia & Ms.Shristi Banerjee, Advs. versus OSWAL WOOLEN MILLS LTD. ..... Respondent Through: Mr.Sakal Bhushan & Mr.Akash Jandial, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. By way of the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") the petitioner challenges the Arbitral Award dated 08.07.2015 passed by the Majority of the Arbitral Tribunal adjudicating the disputes that have arisen between the parties in relation to the Power Purchase Agreement (hereinafter referred to as the "PPA") dated 10.01.2011 executed between the parties. 2. Government of India launched the Jawaharlal Nehru National Solar Mission with an objective to establish India as a global leader in Solar Energy. In pursuit of the above said objective set out by Govt. of India, NTPC Vidyut Vyapar Nigam Ltd. was designated as the nodal agency through the Presidential Directive by the Ministry of Power. Page 2 3. Ministry of New and Renewable Energy, Government of India had issued guidelines for selection of grid connected Solar Power Projects in July, 2010, called MNRE guidelines. 4. Clause 2.5(c) of the guidelines is reproduced as under:- "2.5 Qualification Criteria for Short-Listing of Solar PV Project xxxxx C. Connectivity with the Grid The plant should be designed for interconnection with the State Transmission Utility (STU) at the voltage level of 33 KV or above. Further the interconnections should be at the substation (substation should be 33kV/132 kV or high voltage levels) and not the distribution substation. The project developers should indicate to the TRANSCO the location (Tehsil, Village and District as applicable) of its proposed project. In this regard, the Project Developer shall submit a letter from the State Transmission Utility (STU), along with the RfS, confirming technical feasibility of the connectivity of the plant to the grid substation. The Solar Power developer would have responsibility for approaching STU and entering into transmission evacuation agreement. The responsibility of constructing the transmission line from power plant upto 132/33 kv substation would be of STU." (emphasis supplied) 5. The petitioner had issued a Request for Selection (RfS) on 18.08.2010. Some of the terms of the RfS, relevant for the present adjudication are reproduced hereinunder:- "1.7 Ministry of New and Renewable Energy has issued guidelines for selection of new grid connected solar power projects of PV and Thermal and are available in the web site of MNRE and NVVN at www.mnre.gov.in and www.nvvn.co.in respectively. These guidelines shall form the basis for selection of new projects under 1st batch of JNNSM. The RfS document has been prepared in line with these guidelines." Page 3 6. Clause 3.6(C), Section 3 of the RfS provides as under:- "3.6 Qualification Requirements xxxxxx C. Connectivity with the Grid The plant should be designed for interconnection with the nearest substation of STU at the voltage level of 33 kV or above. The Project developer shall be responsible for entering into transmission evacuation agreement with STU. The responsibility of constructing the transmission line from power plant upto 132/33 kv substation would be of STU. In this regard, the Bidder shall submit a letter along with the response to RfS from the STU confirming technical feasibility of the connectivity of the plant to grid substation at the indicated location as per Format-6.8." (emphasis supplied) 7. A reading of the above Clause would show that it had clearly been represented to the Bidders that the responsibility of constructing the Transmission Line from Power Plant upto 132/33 KV substation would be of the State Tr