M.K. Iyer ORDER
1. The Review Petitioner, Power Grid Corporation of India Ltd., has filed the present Review Petition under Section 94 of the Electricity Act, 2003 (hereinafter referred to as the "Act") read with Regulations 103, 111 and 114 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 for review of order dated 3.12.2018 in Petition No. 242/MP/2017 wherein the Review Petitioner was directed to refund the Bank Guarantee after adjustment of the relinquishment charges to the Respondent, Aryan MP Power Generation Private Limited with 9% interest from the date of encashment till the date of payment.
Brief Facts of the case
2. Aryan MP Power Generation Pvt. Ltd. had filed Petition No. 242/MP/2017 with the following prayers:
"(a) Declare the letter of invocation of Bank Guarantee dated 23.10.2017 and thereafter the encashment of the subject Bank Guarantee dated 23.2.2010 of an amount of Rs. 56.1 crore issued by the Axis Bank Ltd., as illegal;
(b) Direct PGCIL to return the amount encashed under bank guarantee, bearing No. 00070100004994 dated 23.2.2010, for an amount of Rs. 56.10 crore, issued by Axis Bank Ltd., on behalf of the Petitioner with interest.
(c) Direct PGCIL to pay damages of Rs. 10,00,00,000 to the Petitioner towards the business loss, loss of goodwill, reputation, bankability of the assets and creditworthiness due to the illegal invocation and encashment of Bank Guarantee by PGCIL."
3. The Commission, after hearing the parties, in its order dated 3.12.2018, inter alia, had observed as under:
"20. The Petitioner in the second prayer has prayed to direct PGCIL to return the encashed BG. The Petitioner has contended that despite observing the latest development of invocation and encashment of BG by PGCIL in the order dated 31.10.2017, the Commission did not issue any direction with regard to return of BG. It is pertinent to mention that while finalizing the impugned order, it came to the notice of the Commission through the Writ Petition (C) No. 9386 of 2017 filed by the Petitioner and order passed by the Hon'ble High Court in the said Writ Petition that PGCIL invoked the BG on 23.10.2017 and thereafter the Petitioner withdrew the Writ Petition. Accordingly, the Commission considered the fact of encashment of BG and observed that in the light of the said development, the prayers of the Petitioner to direct PGCIL not to encash the BG no more survived and accordingly, the Commission decided that no direction was required to be issued with regard to return of BG. It is noted that BG given by the Petitioner indicates that the BG can be encashed notwithstanding any difference between the Petitioner and the Respondent or any dispute pending between them. Therefore, pendency of the Petition No. 69/MP/2014 cannot come in the way of PGCIL to encash the BG in the absence of any stay on such encashment.
21. In the third prayer, the Petitioner has prayed to direct PGCIL to pay damage to the Petitioner due to illegal invocation of BG. In view of our findings that there was no infirmity or illegality in the action of PGCIL to encash the BG, this prayer is not sustainable.
22. Since, the Petitioner has relinquished the LTA granted and the liability of the Petitioner for payment of relinquishment charges shall be decided in the light of the decision in Petition No. 92/MP/2015, we are of the view that there is no requirement to direct PGCIL to refund the encashed BG at this stage. However, if any amount becomes due and payable after adjustment of the relinquishment charges, the same shall be refunded by PGCIL to the Petitioner with 9% interest from the date of encashment till the date of payment."
4. Aggrieved by the said decision of the Commission, the Review Petitioner has made the following prayers:
"(a) Admit the present Review Petition and review and........