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SCA/10013/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10013 of 2009
=========================================================
THEOLIA
WIND POWER PRIVATE LTD & 1 - Petitioner(s)
Versus
GETCO
KNOWN AS GUJARAT ENERGY TRANSMISSION CORPORATION LTD & 2 -
Respondent(s)
=========================================================
Appearance
:
MR
BK DAMANI for
Petitioner(s) : 1 - 2.
NOTICE SERVED for Respondent(s) : 1 - 3.
MR
PREMAL R JOSHI for Respondent(s) : 1,
MS SANGITA VISHEN AGP for
Respondent(s) : 2,
MR BD KARIA for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/09/2010
ORAL
ORDER
Heard
learned senior advocate Mr. Mihir Joshi with learned advocate Mr. BK
Damani on behalf of petitioner, learned Advocate General Mr. Kamal
Trivedi with learned AGP Ms. Sangita Vishen on behalf of respondent
no. 2, learned advocate Mr. PR Joshi for respondent no. 1 and
learned advocate Mr. BD Karia on behalf of respondent no. 3.
This
Court has passed an order on 15/9/2010, which is quoted as under:
Heard
learned Senior Advocate Mr.Mihir Joshi with learned advocate
Mr.Damani on behalf of petitioners, learned advocate Mr.Premal Joshi
for respondent No.1, learned
Advocate General Mr.Kamal Trivedi with learned AGP Ms.Sangeeta Vishen
on behalf of respondent No.2 and learned advocate Mr.B.D.Karia for
respondent No.3.
Today, when the
matter is taken up for hearing, learned Senior Advocate Mr.Mihir
Joshi made a voluntary statement without prejudice to the rights and
contentions of petitioners that petitioners are prepared to furnish
bank guarantee for a period of one year as per the requirement of
respondent No.1 GETCO.
Learned advocate
Mr.Premal Joshi appearing for respondent No.1 requests for some tome
to have the instructions on this statement from respondent No.1.
Accordingly, the
matter is adjourned to 23.9.2010.
Today,
learned advocate Mr. Damani placed on record affidavit in response
to letter dated 21/9/2010 issued by GETCO. Copy thereof is served
to other side, therefore, same is taken on record. The averment
made in aforesaid affidavit in para 1 and 2 which are quoted as
under:
1. I say that
the petitioner has stated that without prejudice to its rights and
contentions it was willing to furnish a bank guarantee as per
formate accepted by the respondent from other units/companies. This
was recorded in an order dated 15/9/2010 and also reiterated in its
letter dated 15/9/2010 written by the petitioner company to the
GETCO. Annexed hereto and marked as Annexure I is the copy of the
letter dated 15/9/2010 issued by the petitioner.
2. I
say and submit that the petitioner has now received a letter from
the respondent dated 21/9/2010 which imposes additional conditions
on the petitioner. I state that the issue can not be kept for
re-adjudication by the GERC as observed by the respondent and the
term of the bank guarantee should be as accepted by the respondent
from other units/companies, as per their normal format which has
been annexed along with the letter dated 15/9/2010.
The
formate which has been annexed to aforesaid affidavit page 320 Item
no. 2 where Bank Guarantee is required to be given by petitioner to
GETCO for a period of one year from date on which it having
effective and within one year period petitioner has to complete work
and to generate power. The relevant Item no. 2 is quoted as under:
Whereas the
Vendor has assured the GETCO that the arrangement would be made at
the site for completing the work of laying the —- Kms lines, Byas
and all other work approved vide GETCO’s letter dated —-. For
which the estimate has been paid and work will be completed within
one year from the date on which Bank Guarantee is given by
petitioner. If the work is delayed beyond date on which Bank
Guarantee is given on completion of one year, from that date, Bank
Guarantee is valid for encashing by GETCO.
After
discussing item no. 2 as referred above, it is made clear between
all parties that work will be completed within one year period from
the date of giving Bank Guarantee. Meaning thereby that during this
one year period after completing work, petitioner must have to
generate power and inject within a period of one year from the date
on which Bank Guarantee is given.
Learned
advocate Mr. Karia submitted that let petitioner may approach to
respondent no. 3 Gujarat Electricity Regulatory Commission for
accepting Bank Guarantee by GETCO. After receiving such application
from petitioner, respondent no. 3 Gujarat Electricity Regulatory
Commission will pass necessary order after receiving No Objection
from GETCO.
In
light of aforesaid submission made by all learned advocates
appearing on behalf of respective parties and whatever arrangement
made as referred above, it is directed to each respective party to
abide it and this exercise is required to be completed by parties
within a period of two months from date of receiving copy of present
order. It is made clear by this Court that aforesaid arrangement
and order passed by this Court is without prejudice to rights and
contention of each respective party with a direction to petitioner
to give Bank Guarantee within a period of two months to GETCO.
In
light of this back ground, whatever earlier adverse order is passed
by GETCO against present petitioner, will not come in way of
petitioner.
In
view of above observation and direction, present petition is
disposed of by this Court without expressing any opinion on merits
with a liberty to approach by concern party to this Court in case of
any difficulty.
(H.K.RATHOD,
J)
asma
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