25 Issues to be considered in M&A’s in

the Infrastructure Sector

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25 Issues to be Considered in M&A Transactions in the
Infrastructure Sector
This document discusses some issues that have been encountered/may be relevant to consider in M&A transactions
in the infrastructure sector. The list of issues below is merely indicative and not exhaustive.

Vires versus Concession Terms

▪ One would assume that a concession agreement is fully enforceable against the relevant authority. Please do
consider the legal framework from which the rights to the relevant authority and that to the concessionaire
flow. For example, national highways in India vest in the Union and the enabling statute1 gives a limited set of
powers to the NHAI. Hence, there may be limitations on the powers of NHAI itself to delegate the function of
developing, maintain and managing the national highways. Similarly, if the highways are merely ‘entrusted’ and
do not ‘vest’ in the NHAI, there could be limitations on the delegation to a concessionaire.

Change in control
▪ Private sector involvement in infrastructure projects has helped bridge the gap between the available public
resources and the required investment. Amongst the numerous considerations taken into account by a private
player whilst investing in an infrastructure project, the prospects of exiting from the project is a crucial issue.
SPVs are usually floated for investments in the infrastructure sector, either as subsidiaries of a single promoter
group or in collaboration with a JV partner (who could be a foreign investor). As projects are allocated to pre-
qualified bidders having the requisite financial and technical expertise, change in control provisions in
concession agreements seek to discourage divestment of stakes in infrastructure projects typically until the
project is up and running. Such restrictions (which could be restrictions on change in equity interest, control or
management of the project company) usually continue to apply at least up to 18 months from the Project COD.
▪ In many cases such as the Hyderabad Metro
Rail Project, the restriction applies throughout the
term of the concession agreement. For instance,
under the TOT NHAI MCA of 2017, the aggregate
holding of the selected bidder together with
(its/their) associates, in the issued and paid-up
equity share capital of the concessionaire is
prohibited to decline below 51% during the first 2
years of the concession period (which commences
from the date of satisfaction of the conditions
precedent). Each member of the consortium whose technical and financial capacity was evaluated for the
purposes of prequalification, and short-listing is required to hold at least 26% (along with its associates) of such
equity during the first 2 years of the concession period. Identical restrictions are prescribed in the 2018 MCA for
major ports in India with an additional obligation on the successful bidder/consortium members to also maintain
the ‘Management Control’2 of the project company until expiry of 2 years from the COD. Certain concession

1 National Highways Act, 1956 and the National Highways Authority of India Act, 1988.
2
Under the 2018 Major Port MCA, “Management Control” means the possession, directly or indirectly of the power to direct or cause the
direction of the management and policies of the Concessionaire, whether through the ownership of voting securities, by contract or otherwise or
the power to elect or appoint more than 50% (fifty percent) of the directors, managers, partners or other individuals exercising similar authority
with respect to the Concessionaire.

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 agreements (such as the Hyderabad Metro Rail Project) recognize a mere change of 15% in the direct and/or
indirect shareholding as change in control/ownership of the project company.
▪ In most concession agreements, the ‘change in control’ concept is linked to control as defined under the
Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.
However, the concept of ‘control’ has not yet clearly evolved under Indian jurisprudence. In Subhkam Ventures
(I) Private Limited vs. The Securities and Exchange Board of India3, the Securities Appellate Tribunal (SAT) delved
into whether protective provisions in a shareholders’ agreement (i.e. affirmative vote items) amounted to
‘control’. The SAT observed that ‘control’ is a positive power and not a negative power and accordingly held that
a person having the power to appoint majority of the directors, control the management or policy decisions, or
exercise day to day operation control over the business of a company would be in ‘control’ of that company. On
the other hand, provisions meant solely to ensure standards of good corporate governance and to protect the
interests of the shareholders were held to fall short of ‘control’. However, upon an appeal by SAT, the Supreme
Court4 ruled that the aforesaid decision would not be a precedent.
▪ Subsequently, in the matter of acquisition of shares of Jet Airways (India) Limited5, the Securities and Exchange
Board of India (SEBI) held that the acquisition of shares of Jet by Etihad did not amount to a change in ‘control’
as both tests, namely right to appoint majority of the directors and the right to control management or policy
decisions were not fulfilled. In 2016, SEBI also came up with a discussion paper on ‘Brightline Tests for Acquisition
of ‘Control’ under the SEBI Takeover Regulations’. Vide the aforesaid discussion paper, SEBI proposed to
distinguish between protective rights (i.e. veto rights not amounting to control) and participative rights (i.e.
rights which would amount to control). Thereafter, SEBI observed that covenants enable the exercise of certain
checks and controls on the existing management for the purpose of protecting the interest of the investors rather
than formulating policies to run the company would not amount to ‘control’. In the latest of the series of
decisions on ‘control’, the Supreme Court6 relied on the observations of the SAT in the Subhkam Ventures case
regarding positive and negative ‘control’, albeit in the context of insolvency law. Accordingly, the issue has still
not been put to rest.

▪ In contrast, the Competition Commission of India (CCI) has in many cases held that investors with veto rights
have control.

▪ The lack of clarity on the concept of ‘control’ and ambiguous exit provisions in concession agreements often
gives rise to an uncertainty. For instance, concession agreements usually prescribe restrictions on changes in
shareholding, control and management of a concessionaire. However, such agreements are silent on whether
any approval of the concession authority is required if there is a change in shareholding or management of the
holding company (effectively leading in the indirect change in control and/or holding of the concessionaire).
In such a scenario, the selling shareholders of the holding company could argue that since the concession
agreement does not expressly restrict the change in shareholding and/or control of the holding company, no
prior consent of the authority would be required. On the other hand, investors while taking a cautious stand
could argue that the concession was awarded to the project SPV based on the technical and financial credentials
of the bidding consortium/holding company of the concessionaire. Thus, transfer of the stake of existing
shareholders of the holding company to a new investor could be construed effectively as the change in control
thereby requiring prior consent of the authority. Although, the investors would desire that prior approval of the
authority be obtained before investment in the holding company, (i.e. for the proposed indirect investment in

3
Appeal No. 8 of 2009 decided on January 1, 2019.
4
Securities and Exchange Board of India vs. Subhkam Ventures (I) Private Limited, Civil Appeal No. 3371 of 2010 decided on November 16, 2011.
5
WTM/RKA/CFD-DCR/17/2014 decided on May 8, 2014
6
ArcelorMittal India Private Limited vs. Satish Kumar Gupta and Others, 2018(13)SC ALE381

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 the concessionaire), the selling shareholders of the holding company may not want to approach the authority.
This is due to the fear of refusal and/or unreasonable delay in receiving response from the authority. Further,
once the concessionaire has approached the authority for seeking the approval for an investment, the
concessionaire/selling shareholders may be compelled to seek approval from the authority for subsequent
investments as the concessionaire/selling shareholder would have set a precedent of approaching the authority
prior to investments.
▪ In due diligences, we often observe that the shareholding and management of the concessionaire changed
multiple times over the years without any approvals from the authority (despite the concession agreement
expressly requiring the same). More often than not, the selling shareholders do not want to go back to the
authority to regularize the non-compliance as the same could be construed by the authority as a breach of the
concession agreement and consequently a default thereunder.
▪ If the selling shareholders are unwilling to approach the authority for seeking its: (i) prior consent for the
investment; and (ii) post facto regularization of past non-compliances (as discussed above), the parties may
consider intimating the authority of the proposed changes in shareholding and/or control of the project SPV,
after execution of the investment agreements. The intimation may also incorporate details of the change in the
shareholding and management of the concessionaire from time to time until date. It may be agreed in the
investment agreement that the closing of the investment transaction would take place after a mutually agreed
period has passed since the intimation to the authority and no objection and/or show cause has been received
from authority until the scheduled date for undertaking closing actions. Although this will not be a fool proof
mitigation to the issues in question, parties may derive some comfort if the authority has not issued any
objections until the date on which the closing actions were to take place.

Pricing of shares and assured returns

▪ The Foreign Exchange Management Act, 1999 (FEMA) prescribes guidelines for pricing of shares in case of:
(i) issuance of shares by Indian companies to persons resident outside India; and (ii) transfer of shares between
persons resident in India and persons resident outside India7. While parties to a transaction may have certain
pricing for investments or exit in mind, the same cannot be agreed upon unless they are in accordance with the
pricing guidelines prescribed under Indian foreign exchange laws.

▪ An obvious expectation of an equity investor would be a post-tax assured return on its investments at the time
of exit. However, Indian counter parties have often attempted to avoid their obligations to provide assured
returns to non-resident investors despite agreeing for the same under commercial contracts. This is because
assured returns on investments in India under the guise of equity investments are not permissible under FDI
policy of the GOI and under the Indian foreign exchange laws. The principle laid down under FEMA is that a
person resident outside India should not be guaranteed any assured exit price at the time of making an
investment and should exit at the price prevailing at the time of exit. The GOI and the RBI have always
discouraged arrangements that even hint of assured returns as the same would otherwise be akin to a debt
transaction which is regulated differently under Indian laws. In the past, Indian courts have also struck down
innovative investment structures viewing them as colourable devices to circumvent the prohibition of assured
returns.

7
Issuance of shares of an Indian company to a non-resident or transfer of shares from a resident to a non-resident shall not be lower than the fair
market value (FMV) arrived at internationally accepted pricing methodology for valuation on an arm’s length basis, duly certified by a Chartered
Accountant or a SEBI registered Merchant Banker or a practicing Cost Accountant. Cannot be lower than the FMV to be determined in accordance
with pre-approved valuation norms. Similarly, any transfer of shares of an Indian company held by a non-resident to a resident Indian cannot be
at a price which is more than the FMV to be determined in the same manner. In case the issuance or transfer is of shares of a listed company, the
valuation is to be done in accordance with the guidelines prescribed by the Securities Exchange Board of India.

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▪ However, in the recent past, Indian courts seem to have significantly impeded the ability of counter parties to
avoid assured payment obligations, by allowing payouts in the form of damages for contractual breach. Indian
courts have also held that parties cannot be permitted to derogate from their contractual obligations merely by
alleging violation of exchange control regulations at a belated stage.

Case Studies

For instance in Docomo vs. Tata (2017) 142 SCL

252 (Del) the shareholders’ agreement executed
between the parties in respect of investments by
Docomo in Tata Tele Services Limited (TTSL)
provided that if TTSL fails to meet certain
performance indicators, upon request of
Docomo, Tata will find a buyer for Docomo’s
shares in TTSL at a price which is the higher of:
(i) 50% of the price at which Docomo purchased
the shares; or (ii) the FMV of those shares as on
March 31, 20148. Tata could not find a buyer at
the desired price as a result of which Docomo
exercised its ‘put option’ requiring Tata to
acquire its shares at the desired return. The
acquisition of shares of Docomo by Tata was
disallowed by RBI. This led to arbitration
between the parties. The arbitration tribunal held that Tata was in breach of the terms of the shareholders’
agreement as it did not perform its alternate obligations. Hence as per the arbitral tribunal, Tata was liable to
pay damages to Docomo. The Delhi High Court allowed enforcement of the arbitral award observing that the
award was in the nature of damages and therefore there was no violation of the exchange control regulations.
The High Court observed:
“The first part of that clause imposed on Tata an unqualified obligation to find a buyer of the Sale
Shares on the terms that Docomo received the Sale Price by 3rd December 2014. Tata has admittedly
failed to perform this obligation. Tata cannot rely on its purported performance under the second part
of the Clause 5.7.2. The alternatives provided for in the second part were only available to Tata if it
was able to perform in fact and in law. The FEMA Regulations do not excuse non-performance. It is
common ground that there were methods of performance of obligation in question which were
covered by general permissions under FEMA.”
“It was held that the promise was valid and enforceable because sub-regulation 9(2)(i) of FEMA 20
permitted a transfer of shares from one non-resident to other non-resident at any price. The AT held
that Tata could have lawfully performed its obligation to find a buyer at any price, including at a price
above the shares’ market value, through finding a non-resident buyer. Its failure to do so was,
according to AT, a breach entitling Docomo to damages.”

8
The shareholders’ agreement between Tata and Docomo was executed in 2009.

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 In another case of Cruz City 1 Mauritius
Holdings vs. Unitech Limited 239 (2017)
DLT 649, the Delhi High Court in April
2017, has upheld the enforcement of
foreign award in India, notwithstanding
the FEMA restrictions. It held that
violation of FEMA is not a violation of
the ‘public policy of India’9 in so far as
the question of enforceability of foreign
award is concerned.

Cruz City was entitled to exercise a ‘put

option’ on its shares on one of the
shareholders of the Joint Venture
company (JVC) at a price that yielded a post – tax IRR of 15%, in the event of delay in commencement of
construction of an Indian real estate project. It was also separately agreed that in case such shareholder was
unable to honor the ‘put’, Unitech will infuse the required monies in the JVC. The project was delayed, and
Cruz City exercised its put option. Upon failure of the shareholder and Unitech to pay, Cruz City invoked
arbitration and procured a favorable order. The London seated arbitration tribunal passed awards against
Unitech companies to pay an amount of nearly USD 300 million in exchange for Cruz City’s shares in the JVC
with Unitech. Part of the award was sought to be enforced in India which was challenged by Unitech on many
grounds. The Delhi High Court rejected all the objections against enforcement, thus paving the way for Cruz
City to take steps to execute the award in India.

Unitech argued that the award as well as the monetary reliefs granted thereunder, were allegedly in violation
of FEMA, hence the enforcement of the foreign award would result in a violation of the exchange control laws
of India (i.e. FEMA). Violation of a national law (FEMA) would be contrary to the public policy of India. The
court found that FEMA does not render foreign exchange void in case of any procedural non-compliance (such
as failure to seek Government/RBI approval). In fact, FEMA itself permits non-compliance to be addressed
through compounding (i.e. monetary penalties) as well as granting of permissions/approvals after the
execution of transactions.
Unitech further contended that given the violation of FEMA, the RBI is not likely to grant its approval for
remittance under the award and therefore the enforcement should be declined. The court therefore held that
the necessity to seek prior RBI approval before remitting funds offshore from India, is insufficient to refuse
the enforcement of a foreign award. In a passing the court observed “notwithstanding that Unitech may be
liable to be proceeded against for violation of provisions of FEMA, the enforcement of the Award cannot be
declined”.
The court also observed:

“Unitech’ s contention that structure contemplated under the Keepwell Agreement read with the SHA
provided an assured return at a pre-determined rate to Cruz City and this was a flagrant violation of
FEMA and Regulations made thereunder, is also bereft of merit. The Put Option provided to Cruz City
under the Keepwell Agreement could be exercised only within a specified time and was contingent on
the Santacruz project not being commenced within the prescribed period. This was not an open-ended

9Enforcement of international arbitration awards in India, can be challenged on the ground that the same is against the ‘public policy’ of India.
However, Indian courts have restrictively interpreted ‘public policy’ in the context of enforcement of international arbitral award in India.

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 assured exit option as is sought to be contended by Unitech. Cruz City had made its investment on a
representation that the construction of the Santacruz Project would commence within a specified
period. Plainly, if the construction of the Santacruz Project had commenced within the specified period
– that is, by 17.07.2010 – Cruz City would not be entitled to exercise the Put Option for exiting the
investment. Further, the Put Option could only be exercised within a fixed time period of 180 days and
the said option would be lost thereafter.
The reliance placed by Unitech on the RBI circulars dated 09.01.2014 and 14.07.2014 is also misplaced.
In terms of RBI’s circular dated 09.01.2014 optionality clauses granting assured returns on FDI are
proscribed. However, it is doubtful whether the said circular would be applicable to cases where a
foreign investor founds its claim in breach of contract. Plainly, if an investment is made on
representations which are breached, the investor would be entitled to its remedies including in
damages. The aforesaid circulars proscribe assured return instruments brought in India under the
guise of equity. However, in the present case, Cruz City is only seeking to enforce its obligations against
Burley, an overseas entity.”

In the more recent case of Banyan Tree Growth Capital LLC v. Axiom Cordages Limited (Commercial Arbitration
Petition No. 476 of 2019), the Bombay High Court upheld an award for enforcement of a put option of a foreign
investor. Banyan Tree Growth Capital LLC (Banyan Tree) is a close-ended fund incorporated in Mauritius.
Banyan Tree had invested about USD 7.5 million and held 11.25% of the equity shareholding in Axiom Cordages
Limited (Axiom), a company incorporated in India. Thereafter, disputes arose between Banyan Tree and the
promoters of Axiom, inter alia, in relation to the breach of a put option deed under which Banyan Tree had the
right to compel the promoters to purchase their shares in Axiom at a pre-agreed price. An arbitral tribunal
under SIAC upheld Banyan Tree’s contention and Banyan Tree approached the Bombay High Court to enforce
the award. Axiom and the promoters sought to challenge the award on the basis that the put option was illegal
and unenforceable under FEMA and the Securities Contract Regulation Act, 1956 and hence against the
fundamental public policy of India.

The Bombay High Court observed:

“In my opinion, the above contentions of the respondents proceed on a fundamentally erroneous
premise both on facts and on law. At the outset it is required to be noted that on a cumulative reading
of clause 12.2.2 of the SSA read with clause 9 under schedule 16 (Investors Right) to the SSA, it is quite
clear that the put option deed did not provide for an open-ended assured return to Banyan Tree, as
an exit option. It is clear that the put option could be exercised by Banyan Tree within a specified time
and was contingent on the respondents not completing an IPO. Further clause 4 of the put option deed
which provides for 'settlement of the put option' in clause 4.5 thereunder, provided that on Banyan
Tree exercising put option, the promoters would provide valuation certificates from the Auditor's of
Axiom and a Chartered Accountant Specifying the Value of Put Securities in Accordance with the FDI
Regulations, as incorporated in the definition of 'valuation certificates' in the put option deed. Thus if
the target value namely the yield on 15% basis was to be in excess of the value as per the valuation
certificate, only the amounts as per the valuation certificate which was to be as per the FDI regulations
would be remitted to Banyan Tree. Accordingly Banyan Tree would be correct in its contention that
the amounts permitted by the FDI regulations namely the fair market value was to be remitted to
Banyan Tree in foreign exchange. The balance amount if any was to be deposited with a nominee at
an account in India as would be requested by Banyan Tree. It is therefore not correct for the
respondents to contend that the arrangement between the parties under the put option deed provided

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 for any fixed return to Banyan Tree in violation of FEMA. No doubt when the amount to be remitted
materialises, compliances if any required under the FEMA would be made by the Petitioner which the
petitioner, is no manner has resisted. It also needs to be noted that the Arbitral Tribunal has observed
in the award that the Put Option Price was less than the FMV of the Put shares (computed in with the
FDR Regulations) and that payment of Put Option Price would accordingly be permissible under the
FEMA Pricing Guidelines and permissions thereunder.”

It should however be noted that the above precedents have their own peculiar facts. The investor will need to
demonstrate to the courts that the investment terms were not merely a colorable device to circumvent legal
restrictions but adequate grounds and bona fides exist for the claim of such damages.
Additionally, it is important to note that Section 67 of the Companies Act, subject to three specified exemptions,
prohibits a public company from giving, whether directly or indirectly and whether by means of a loan, guarantee,
the provision of security or otherwise, any financial assistance for the purpose of, or in connection with, a
purchase or subscription made or to be made, by any person of or for any shares in the company or in its holding
company.

Bidding for Projects and Blacklisting

▪ RFPs issued by Government authorities such as the NHAI usually require bidders of projects to confirm whether
the bidder or any constituent of the consortium/ JV has been barred by the Central/ State Government, or any
entity controlled by it, from participating in any project (regardless of the mode of implementation of the
project). Entities who are so disbarred aren’t eligible to submit bids, whether individually or as a member of the
consortium. Accordingly, at the time of submission of bid documents, it would be important for entities applying
for the project to ascertain whether any of them are prohibited from participating in the project as envisaged
in the RFP.

▪ RFPs also indicate that bidders (including all of their JV members) failing to physically submit the original
documents would be unconditionally debarred from bidding in NHAI projects for a specified period (which can
go up to 5 years from the date of issue of debarment notice). In this regard, questions have arisen as to the
authority of NHAI or other concessioning bodies to blacklist or debar entities from bidding in projects.
▪ On November 2, 2021, the Department of Expenditure, Ministry of Finance released the ‘Debarment Guidelines
on Debarment of Firms from Bidding,’ (“Debarment Guidelines”) and contain instructions to departments and
organizations under the Central Government. The Debarment Guidelines recognize 2 categories of debarment,
specific debarment, where debarment is limited to a single ministry, and universal debarment, where
debarment extends beyond the jurisdiction of any particular ministry. The grounds for universal debarment are
more limited in nature and an order thereof is required to be issued by the Department of Expenditure, Ministry
of Finance.
▪ Apart from the Debarment Guidelines, specific ministries have issued their own procedures and guidelines for
debarment, such as the Ministry of Roads, Transport and Highways’ ‘Standard operating procedure to
debar/penalize/declare the Contractor/Concessionaire as Non-performer in National Highways and other
centrally sponsored road projects and the Railway Board, Ministry of Railways’; ‘Procedure to be followed by
Railways/Production Units etc. for Banning of Business with a Contractor/Firm in Works Contracts for all
departments’.

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Case Study

In Patel Engineering vs. Union of India and Others (AIR 2012 SC 2342), the Supreme Court delved into the
question of whether it was legally permissible for the NHAI to blacklist a company on the ground that it declined
to enter into a valid contract after it had been declared as the successful bidder. In this case, the Supreme Court
observed that though the NHAI is a statutory body, its authority to blacklist is not based on any express statutory
provision. The Supreme Court noted that blacklisting has the effect of preventing a person from the privilege
and advantage of entering into lawful relationship with the Government for purposes of gains.
As regards the validity of a debarment by the NHAI on grounds which were not expressly stated in the bid
document, the Supreme Court observed as follows:
“The 2nd Respondent, being a statutory Corporation, is equally subject to all constitutional limitations,
which bind the State in its dealings with the subjects. At the same time, the very authority to enter into
contracts conferred under Section 3 of the NHA Act, by necessary implication, confers the authority not
to enter into a contract in appropriate cases (blacklist). The 'bid document' can neither confer powers,
which are not conferred by law on the 2nd Respondent, nor can it subtract the powers, which are
conferred by law either by express provision or by necessary implication. The bid document is not a
statutory instrument. Therefore, the rules of interpretation, which are applicable to the interpretation
of statutes and statutory instruments, are not applicable to the bid document. Therefore, in our opinion,
the failure to mention blacklisting to be one of the probable actions that could be taken against the
delinquent bidder does not, by itself, disable the 2nd Respondent from blacklisting a delinquent
bidder, if it is otherwise justified. Such power is inherent in every person legally capable of entering
into contracts.”
Generally, as regards the State’s power to blacklist, the Supreme Court held that the State can decline to enter
into a contractual relationship with a person or a class of persons for a legitimate purpose. The authority of State
to blacklist a person is a necessary concomitant to the executive power of the State to carry on the trade or
business and making of contracts for any purpose, etc. There need not be any statutory grant of such power. The
only legal limitation upon the exercise of such an authority is that the State is to act fairly and rationally without
in any way being arbitrary - thereby such a decision can be taken for some legitimate purpose. The Supreme
Court further observed that the legitimate purpose that is sought to be achieved by the State in a given case
could vary depending upon various factors.

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Renegotiation of contracts by the Government
▪ Indian PPP contracts do not allow re-negotiation of concession agreements. A project is vulnerable to
changes/cancellation if a new government sets different
priorities from those set by the previous government.
There have been instances in the past where the
government has sought to unilaterally amend contracts
to safeguard public interest much to the detriment and
dismay of the private developers. This could have direct
impact on the cash flows and projected revenues of the
private developers (who have already made significant
investments in the project) leading to defaults under the
financing documents and other contractual defaults.
Also, given the financial and operational stress in Indian
projects space currently, lenders would be apprehensive
in providing cushion to the developer under stress.

▪ During diligences therefore, investors must engage with industry experts to apprise themselves of existing as
well as potential policy and regulatory risks affecting the concerned industry. The investor may also consider if
the seller/promoter should also obtain adequate insurance against political risk events (such as the one
mentioned above) to insulate the investor of the losses arising out of such risks.

Case Study

One of the examples of instances where the Government has sought unilateral change in the terms of a contract
include the attempt of the newly elected Andhra Pradesh Government to re-negotiate renewable PPAs executed
with private developers. The AP Government’s viewpoint was that compared to other states, the price at which
the Government was procuring power from the private developers was steep. The AP Government was also of
the view that the actual costs incurred/being incurred by private developers in implementing the project was
substantially lower than the parameters considered in fixing tariffs. Thus, citing a loss to the public exchequer,
the Government sought to revise the terms of the PPAs.

A similar issue has been faced by a large number of solar power developers in the State of Gujarat (the initial
outcome of which has been in favor of the developers) the outcome of which is pending disposal of an appeal
before the Supreme Court.

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Change in scope of work
▪ Disputes between a concessionaire and the concession authority on change in scope of work10 could have a
considerable impact on the developer’s financials and consequently on the purchase price modelling of the
investor. Obligations of the concessionaire are often broadly worded in the concession agreements thereby
creating ambiguity on what would amount to change in scope of work of the concessionaire. Consequently, the
concession authority and the concessionaire end up disputing whether a work that the authority has asked the
concessionaire to undertake (irrespective the likely cost), is within the scope of the work envisaged at the time
of grant of concession or is a change in scope. If determined that such work is within the scope of work of the
concessionaire, the concessionaire will need to implement the same at no extra cost to the concession authority.
Change in scope related disputes are common in road projects in India.

Case Studies

In a road project in Andhra Pradesh, there was a substantial damage

to the road project due to floods. As a result, the concession
authority required the concessionaire to repair the damage and
bring the project up to speed in accordance with the latest standards
of repair and design. The concessionaire argued that the road project
has been following earlier prescribed standards and that if the
project was to be repaired as per the latest standards the same
would be work outside its scope of work and would entail additional
costs. While the authority argued that the repair and upgradation of the project as per the latest standards was
within the scope of work of the concessionaire, the concessionaire argued that the concession agreement was
not specific on whether the same standards were to be applied (as existed at the time of commencing the project
by the concessionaire) while undertaking repairs or the latest standards were to be applied. This led to a long-
drawn dispute between the authority and the concessionaire. The matter was finally resolved with the concession
authority agreeing to separately bid the requirement of upgradation of the project as per the latest standards,
provided the concessionaire would waive its right to claim damages against the authority for certain defaults by
the authority. This included the delay by the authority in providing the required land for the project to the
concessionaire within the timelines stipulated in the concession agreement.

In another case, the authority required the concessionaire to create additional toll lanes to ensure faster clearance
of the congestion at the toll (as faster clearance of the congestion was one of the responsibilities of the
concessionaire). The concessionaire argued that the data provided to the concessionaire by the authority at the
time of bidding did not envisage such heavy flow of traffic and thus creation of additional toll was not within the
scope of work of the concessionaire and it also involved heavy costs.

It is advisable to assess the merits of a change of scope of work dispute (if any) between the concessionaire and the
authority and its likely impact on the financial position of the concessionaire. Communications among various
stakeholders such as the concession authority, IE and the concessionaire should also be reviewed for better

10Concession agreements (such as in road sector) may allow concession authority to require the concessionaire to undertake additional work
which is beyond the scope of work originally agreed with the concessionaire, provided that such changes / additions do not require expenditures
exceeding a certain percentage (usually 5 %) of the total project cost and do not adversely affect the COD. Upon determination that a particular
work is beyond the scope, the concessionaire is required to draw a plan and apprise the authority of the likely cost for
implementation of such additional work. Post this, the authority may formally issue a change of scope order to the concessionaire for carrying
out such additional work.

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understanding of the dispute and evaluation of merits of the dispute (a general scope of legal due diligence may not
cover review of such internal communications. Much reliance is usually placed on the seller representations).
Further, at the pre-bid stage, detailed discussions with the concession authority at pre-bid meetings regarding any
doubts and ambiguities should be undertaken. Written queries should be submitted in order to receive a written
response. However, even where the bid documents contemplate such processes, concession authorities may not be
as forthcoming as may be desired by the confused bidders.

Sub-contracting of key obligations and approval of key contracts

▪ Key obligations under concession agreements such as engineering, procurement and construction, O&M are
usually completely sub-contracted by concessionaires to a sister/group company (Related Party). While the
concessionaire remains accountable to the concession authority for performance under the concession
agreement, the terms and conditions of the sub-contracts do not pass the concessionaire’s liabilities (in
connection with the sub-contracted work) towards the authority through to its sub-contractor(s). Often the sub-
contracts with Related Parties do not impose any obligations on the sub-contractor to provide any performance
security or pay liquidated damages to the concessionaire for delay or failure of performance of the part of the
sub-contractor.

▪ It is also seen that the terms of the sub-contracts with related parties are inadequately drafted with minimal
checks and balances that one may otherwise typically see. For instance, payments to sub-contractors are not
linked to the progress and performance of the sub-contractor during the term of the sub-contract. This allows
unrestricted cash flows out of the concessionaire despite delayed and/or poor performance on the part of the
related party sub-contractor. This obviously leads to cash shortfall thereby causing additional financial stress on
the concessionaire. Consequently, it directly and adversely affects the ability of the concessionaire to complete
and operate a project.

The investor may require re-negotiation of the terms of the sub-contracts to ensure that the agreement is
watertight, and the performance of the sub-contractor is adequately secured. The same should be a condition
precedent to investment by the investor.
▪ Further, usually the terms of the concession agreements require that any proposed alterations to project
agreements pertaining to the project (which may include sub-contracts) and financing documents of the
concessionaire, shall be submitted to the concession authority for its review and comments prior to their
execution. In our experience, the concession authority would not normally intervene unless the terms of the
revised contracts/financing documents, increase the obligations of the concession authority.

Page | 12
 Case Study

In the case of Delhi Gurgaon Expressway, one of the

3 reasons why the NHAI terminated the concession
agreement of the toll road project was because the
concessionaire fraudulently obtained a loan of INR
1597 crores in 2010, after the project was completed
from IDFC and 4 other banks without seeking prior
approval from NHAI. These lenders objected that in
terms of the process set forth in the concession
agreement, the NHAI should have intimated its
intention to terminate the concession to the lenders
and afforded an opportunity to the lenders to
exercise their substitution rights. However, NHAI was of the view that it did not recognize such lenders as the
loans were provided without NHAI’s approval and hence NHAI was under no obligation to coordinate with the
lenders.

Indian laws prescribe that contracts executed with related parties should be at arms-length terms. It is therefore
advisable that the investor should also seek the review of at least the key project agreements/sub-contracts by
industry experts to understand if the sub-contracts are compliant with the above-mentioned requirements.

Regulatory approvals and non-compliances

▪ Establishment and operation of infrastructure projects entails procurement of wide range of licenses, approvals,
consents, registrations and no objection clearances (Approvals) from various agencies and authorities at the
federal, state and local levels in India. Failure to obtain the required Approvals and/or to comply with the terms
and conditions thereof would usually constitute offences under Indian law. Such offences are usually punishable
with fines or imprisonment or both. However, violations in respect of some Approvals may have far reaching
and severe consequences than what could be commercially assumed in investment transactions. Regularization
of serious legal violations such as with respect to environmental clearances would likely be a non-negotiable
pre-condition for the investor to put its pen to paper.

▪ For instance, setting up and/or operations of identified projects without prior environmental clearance is
prohibited under Indian law. While the Environment Protection Act, 1986 prescribes fines up to INR 1 lakh or
imprisonment of 5 years (of the officials responsible for the affairs of the defaulting company) or both for
violations, the Government, judicial and quasi-judicial authorities have wide powers to take all necessary actions
for protection and restoration of environment including suspending or shutting down projects.

▪ Courts in India have adopted a strong activist stand on tackling environmental issues. The Supreme Court has
widened the scope of Article 21 of the Constitution (the Right to Life) by stipulating that a clean environment is
essential to human survival.

Page | 13
 Case Studies

In Indian Enviro-Legal Action vs Union of India, the Supreme Court also included the ‘Polluter Pays’ principle into
Indian jurisprudence. The court held that

“the absolute liability of harm to the environment extends not only to compensate the victims of pollution,
but also to the cost of restoring environmental degradation. Remediation of damaged environment is a
part of the process of sustainable development.”
Thus, in exercise of their powers under the Constitution, there are many instances where courts have imposed
exemplary damages on corporations for serious environmental violations.

In a landmark judgement, the High Court of Himachal

Pradesh asked Jaiprakash Associates Limited (JAL) to pay
INR 100 crores for flouting environmental laws for setting
up its cement plant in Himachal Pradesh. The
environmental clearance granted to the 25 MW thermal
power plant of JAL was cancelled and JAL was asked to
dismantle the same within 3 months from the date of the
judgement. As per the court, JAL wrongly showed the
project cost as INR 100 crores to circumvent the
requirement of environment impact studies under the
Environment Impact Assessment Notification, 2006 (under which the environmental clearance for projects are
issued). The court found that the actual cost of the project was upwards of INR 500 crores. The court also found
that the power plant had been set up without prior environmental approvals from the Government. While
imposing damages based on ‘polluter pays’ principle, the high court allowed the functioning of the cement plant,
as in its view the closing of the cement plant would affect the livelihood of the people in local area. However, the
high court said that it would not hesitate in recalling the order if JAL does not comply with the conditions
prescribed by the expert appraisal committee of Union environment ministry, while granting environmental
clearance or is guilty of causing pollution. The damages were to be used in improving the ecology and
improvement of the area concerned and to ameliorate the suffering of the people by creating hospitals, schools
and other facilities.

▪ Procuring critical approvals such as environmental clearance from the MOEFCC, approval for use of forest land
for non-forest purposes are usually the obligations of the concession authority in some PPP projects. However,
compliance of the terms and conditions of the same and maintenance of the same during the concession period
is the obligation of the Concessionaire. Having said that, we have also seen projects (such as incase of power
projects) where the obligation of procurement, maintenance and compliance of the terms and conditions of all
Approvals, is that of the concessionaire.

▪ Following key issues with respect to Approvals are often noted in conducting legal due diligences:

− Certain approvals have not been obtained

− The approvals that have been obtained in connection with the project are inadequate i.e. the approvals are
not commensurate with the extent of project infrastructure created by the concessionaire or the activities
being undertaken by the concessionaire at the project

Page | 14
 − The concessionaire is in default of compliance of the terms and conditions of the approval which often
includes failure of the concessionaire in reporting the compliance of the terms and conditions of the
approval by the concessionaire with the appropriate authority

− Show cause notices have been issued by the governing agency to the concessionaire citing non-compliance
of the terms and conditions of the approval by the concessionaire and seeking clarifications as to why such
approval shall not be cancelled/rescinded
▪ Unless the above issues are such which if not resolved upfront, are likely to or will adversely impact: (i) the
ability of the concessionaire to carry on its business; and/or (ii) interests of the investor, parties would ideally
like to go ahead with the envisaged investments while finding solutions to mitigate such risks. Thus,
regularization of such violations may be incorporated in the investment agreements as a condition to closing of
the investment transaction.
It should be borne in mind that a legal due diligence would normally not involve an exhaustive compliance
review and on ground investigation of whether the project is actually being implemented/operated in
accordance with the terms of the approvals. Serious contraventions (especially environment and forest related)
of the terms of the approvals are often revealed during site visits and asset investigations which could have a
material impact on the project. It is advisable to undertake environmental compliance and technical
investigations through relevant experts to understand project risks and their likely impact on the proposed
investments by the investor.

Appropriate warranties and indemnification (backed by insurance if possible) should also be taken.

Change in Law and Force Majeure

▪ Typically, concession agreements provide for amendments if, as a result of ‘change in law’, the concessionaire
suffers an increase in costs or reduction in returns or any other identified financial burden in excess of certain
amount and/or percentage of concessionaire’s realizable fee in an accounting cycle. Such provisions are
incorporated to bring the concessionaire into the same financial position as it would have been, should there
have been no ‘change in law’. In most concessions, relief is available only if such ‘change in law’ event has
occurred during the construction phase of the project.

▪ The definition of what constitutes ‘change in law’ may be limited and/or ambiguous in concession agreements.
This often leads to disputes among parties as to whether an incident is a ‘change in law’ incident or does not
qualify to be. The case of Adani Power’s ultra-mega power plant is a good example of this issue.

Page | 15
 Case Study

Adani had through its SPV, set up a power plant for

supply of power to various state governments/utilities
at competitive prices determined through competitive
bidding process. Substantial amount of coal was
imported from Indonesia and other territories outside
India. However, subsequently the Indonesian
government said that any export of Indonesian coal
could be done only at prices linked to international
prices instead of what previously existed in the last 40
years (i.e. any higher realization of price than local, would have to be retained in the country). As a result, the
import price of coal turned higher then envisaged and considered by the power producers in submitting their
financial bids/tariff leading to higher costs to Adani. Adani argued that such an event is a ‘change in law’ and ‘force
majeure’ within the terms and conditions of the PPAs and needed to be accordingly addressed including by
providing for additional compensatory tariffs in accordance with the terms of the power purchase agreements
(being a result of changing regulations in Indonesia).

The Supreme Court however decided otherwise and said that Adani cannot raise preset tariffs if fuel becomes
costlier due to changes in laws overseas. The court further held that change in law in Indonesia would not qualify
as change in law under the applicable guidelines read with the executed PPAs, change in Indian law, certainly
would11.

▪ The issue is also quite vexed in relation to the lockdown orders issued by both the Central and State
Governments. Although infrastructure and construction work were exempted from its rigours, the lockdown
orders affected the supply of materials and the availability of manpower which had a significant impact on
projects. However, any such indirect consequences arising from orders that would likely be considered law do
not seem to be covered.
The investor should therefore identify the applicable legal, regulatory and political risks concerning the project
(and its various stages) which may not qualify as a change in law or a force majeure event and for consequent
reliefs thereof under the concession agreement. Safeguards against commercial and legal implications of such
risks would therefore need to be adopted by the investor to insulate itself of such risks/events. For instance,
assets such as airports, mines, power have their own specific regulations. A small, expected change to
permissible noise levels, water discharge and quality requirements can have a huge negative impact on revenues
and costs. However, the same may not necessarily qualify as a change in law under the concession agreement.
To mitigate this risk, the investor may not be able to lay any claim on the promoter or the concessionaire,
however the same can be mitigated by seeking appropriate political risk insurance at the cost of the promoter.

11
Although in early April 2019, the Central Electricity Regulatory Commission has offered much respite to Adani by allowing revisions in the terms
and conditions of the power purchase agreements, the developers and the procurers had to face long drawn battle before the courts and
uncertainties around the power project

Page | 16
Payment delays and defaults by Government counter parties
▪ The terms and conditions
of concession agreements do
not usually prescribe adequate
provisions that deter the
concession authority from
delaying payments to the
concessionaire. Any delay in
making payments attracts only
minimal liquidated damages
which allow such delays to
continue inordinately without
censure. Also, the authorities
often fail to provide payment
guarantees (which also exposes
a risk) to the concessionaire
despite requirements under the concession agreements. For instance, PPAs for procurement of power executed
by Government distribution companies of India (DISCOMs) require the government to provide payment
securities to private developers in the form of letters of credit of an amount equivalent to average monthly
invoice amount. However, DISCOMs invariably do not provide such securities to the developers and default in
payments are persistent.

▪ Further, concession agreements envisage inordinately long timelines for payment by the Government to the
concessionaire after the invoice has been raised by the concessionaire. The payment receipt cycle of the
concessionaire and the above defaults by the authority should be borne in mind by the investor while
determining the projected cash flows and receipts of the investee company/concessionaire.

Changes in investment structure of Captive Power Plants

▪ Captive power plants (CPPs), i.e. power plants established by certain industries primarily for self-consumption,
were encouraged by the Government, so as to reduce the burden on the public sector for provision of electricity
and freeing up generation and transmission capacities. The growth of CPPs has been broadly attributed to:
(i) need for backup power arrangements (ii) requirement of continuing supply (iii) the co-generation benefits of
steam and electricity from production process of industries and (iv) need to generate electricity at costs lower
than the high industrial tariffs set to cross subsidize other categories of consumers12.

▪ No license is required for the construction, maintenance and operation of CPPs (with the dedicated transmission
lines, if any). To support captive power supply and consumption, the law allows a CPP the right to open access
for the purposes of carrying the electricity to the captive user. An additional advantage of captive consumption
of electricity is that cross-subsidy surcharge (CSS)13 is not payable by the captive power consumer to state

12
Section 9 of the Electricity Act read with Section 2(8) regulates captive generating plants. A captive generating plant has been defined to mean
“a power plant set up by any person to generate electricity primarily for his own use and includes a power plant set up by any co-operative society
or association of persons for generating electricity primarily for use of members of such cooperative society or association.”
13
Under section 42 (2) of the Electricity Act, the concerned state electricity regulatory commission is under obligation to introduce open access
which are subject to certain conditions such as payment of CSS by a consumer as per the rates prescribed by the concerned commission. The idea
behind CSS is to provide a favourable price of power to one set of customers at the expense of other categories of customer although the cost of
the DISCOM for supplying electricity to all consumers is the same. In India for instance, industrial consumers of electricity pay higher tariff for
power compared to rural customers. As per the Electricity Act, CSS were to be gradually reduced and done away with. But the same are so far

Page | 17
 DISCOMs for availing open access14 of the DISCOM’s distribution network for supply of electricity to the captive
consumer’s premises.
▪ For a power plant to qualify as a captive generating plant, the captive user(s) is/are required to: (i) hold not less
than 26% of the ownership in the power plant and (ii) consume not less than 51% of the aggregate electricity
generated in such plant, determined on an annual basis. Ownership in relation to a generating station or power
plant set up by a company or any other body corporate has been defined as the equity share capital with voting
rights. In other cases, ownership means proprietary interest and control over the generating station or power
plant. Therefore, any person that holds equity shares of a captive generating company with voting rights, could,
if he availed electricity from such power plant, be considered as a captive user, provided that, other
requirements as necessary are also fulfilled. It should also be noted that holding of preference shares or equity
shares without voting rights, would accordingly, not be considered as holding for the purpose of captive usage.
▪ However, an amendment to the current captive power related regulations are likely. The Ministry of Power, GOI
have proposed certain amendments in this regard on October 6, 2016 and May 22, 201815. The aim of the
proposed amendments is to fix a loophole in the current law pertaining to ownership of CPPs. The proposed
amendment mandates captive consumers to hold at least 26% of the equity base of 30% of the capital employed
in the form of equity share capital with voting rights (excluding preference/equity share capital with differential
voting rights). Existing rules for recognizing a group captive company involves ownership accounted by way of
number of shares and this has generally been achieved by issuing another class of shares/through shallow equity
investments with limited voting rights. The requirement for bringing in the equity in proportion of project
cost/capital employed will be onerous as it involves a high upfront commitment. Thus, the aim of the proposed
amendments is that economic ownership of shares of the user should commensurate the economic value of the
ownership of the plant (which is not the case in the law as it stands today).

▪ Given that the captive status of power plants has to be determined on an annual basis, it remains to be seen
how certain existing CPPs which are already commissioned, with alternate structures on capitalization, where
project capital and equity have been already deployed, will rework their equity and shareholding structure by
the time the draft amendment is implemented16. Thus, in the event an investment is envisaged in infrastructure
projects with captive power generation plants, or solely in CPPs, the above sensitivity should be borne in mind
by the investor.

applicable. The GOI has in its latest union budget mentioned that the tariff policy will be revised and the requirement of payment of CSS may be
completely done away with.
14
““Open access” means the non-discriminatory provision for the use of transmission lines or distribution system or associated facilities with such
lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the Appropriate
Commission” - Section 2 (47) of the Electricity Act
15
https://powermin.nic.in/sites/default/files/webform/notices/Draft_Amendments_in_the_provisions_relating_to_Captive_Generating_Plant_i
n_Electricity_Rules_2005_0.pdf
16
We note that the Government is considering further revisions to the proposed amendments. However exhaustive details of the same are not
available online.

Page | 18
Renewable Purchase Obligations
▪ With an aim to promote generation and purchase of electricity from renewable energy sources, Indian electricity
laws require certain
designated entities to
purchase a certain
percentage of their total
electricity needs from
renewable power
sources. These
designated entities are
distribution companies,
captive power consumers
and other open access
consumers (i.e.
consumers using the
network of distribution
licensees for
procurement of energy). Applicable regulations also provide for purchase of renewable energy certificates
(RECs) in lieu of purchasing renewable power by obligated entities from the National Load Dispatch Centre17.
The terms of the PPAs executed between the state procurers and private developers in the renewable sector
often prescribe that in the event the state procurer is unable to draw electricity from the power plant, the
developer can sell such power to any third parties. In the recent past, to arm-twist power developers to
renegotiate power tariffs, the State Government of Andhra Pradesh refused to draw electricity from the
renewable power plants. In such an event, sale of power to designated entities (so as to fulfill their renewable
purchase obligations) could be an alternate solution to the power developer. However, the issue lies in the fact
that the supply of power from the power plant to such designated entity would be dependent on availability of
bandwidth on distribution/transmission networks connecting the power plant and the premises of the
designated entities. Further, such arrangements for supply of power from the power plant to the designated
entities would be intermittent as the moment the state procurers demand the electricity from the power plant,
the power developer is required to oblige in terms of the PPA executed with the state procurer.

▪ There are often disputes between designated entities and the government implementation agencies whether
renewable purchase obligations are applicable when the power is sourced by a captive consumer or any third-
party consumer from co-generation plants using non-renewable fuel for generation of electricity. In a number
of instances, State DISCOMs have argued that purchase of power from co-generation plants using non-
renewable fuel for generation of power need to comply with renewable purchase obligations prescribed by the
concerned state electricity regulatory commission. However, there seems to be some clarity on this aspect
where the courts/Appellate Tribunal for Electricity (APTEL) have held that in addition to generation of power
through renewable sources, the function of the state electricity regulatory commissions is also to promote
generation of power from co-generation sources. Hence, where the power has been sourced by a designated
entity from co-generation power plant, renewable purchase obligations are inapplicable. However, state
regulations on this subject may expressly provide otherwise, thus necessitating a review of local laws as
applicable.

17
RECs are issued by the National Load Dispatch Centre towards green power generated by registered developers. The RECs are issued on monthly
basis and can be traded over power exchanges by the registered developer.

Page | 19
Inadequate stamping of project contracts
▪ Stamp duty is a type of tax and an important source of revenue for the government. Indian stamp laws require
payment of stamp duty on instruments executed for a transaction. Simply speaking, any document by which
any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded, is
an instrument. Depending upon their jurisdiction the Central Government and the State Governments prescribe
the rate of stamp duties to be paid on various instruments. The rate of stamp duties may either be fixed amount
or ad valorem (i.e. in proportion of the estimate value of the goods involved, consideration or the transaction
concerned).

▪ Contracts for infrastructure projects such as EPC contracts, O&M Agreements, Project Implementation and
Management Agreements, Guarantees, Share Purchase Agreements, etc., when executed in certain states
attract ad valorem duty. Hence the amount of stamp duty payable on such instruments is substantial. However,
during legal due diligences we often see that such agreements are either under stamped or not stamped at all.
Failure to pay required stamp duty on the contract attracts substantial penalties. Failure to adequately stamp
instruments does not render a contract invalid, however such inadequately stamped documents are
inadmissible as evidence before Indian courts until the shortfall in duty and penalty for such shortfall is duly
paid. Under section 34 of the Maharashtra Stamp Act, such penalty can be up to 4X the amount of deficient
stamp duty. Inadequately stamped instruments can also be impounded by the concerned revenue authority.
▪ For an investor, it would be ideal that defaults in payment of stamp duties on the instruments of the investee
company are regularized by the selling shareholders/investee company as a pre-condition to investment by the
investor. However, negotiations witness a hard push from the sell side to avoid approaching the revenue
authorities as the stamp duty that may be adjudicated and penalties that may be imposed by the stamp
authorities may be considerably high.

In order to insulate themselves from any loss or liability as a result of default in payment of stamp duty, investors
seek specific indemnities from the selling shareholders. An estimate of the likely penalties for the stamp duty
defaults is also drawn by the investor and the same or a portion thereof is also usually considered by the investor
in financial modelling for determination of the purchase price.

Given high stamp duties parties are also seen executing investment agreements outside India as the incidence
of tax (i.e. the liability of stamp duty) arises after such document is brought in India. The duty will be payable
even if a copy of such document is brought into India physically or electronically.

Latent defects in construction contracts

▪ According to Section 16 (2) of the Sales of Goods Act, 1930, if a seller deals in goods of a description and the
buyer purchases such goods, then there is an implied condition that the goods will be of merchantable quality.
However, the act also provides that if the buyer had also examined the goods, then there shall be no implied
condition as regards defects which such examination ought to have revealed. Courts in India have defined
‘merchantable quality’ at various instances. The Madras High Court has held “goods are of merchantable quality
if they are of such a quality and in such condition that reasonable man acting reasonably would after a full
examination accept them under the circumstances of the case in performance of the offer to buy them, whether
he buys for his own use or to sell again18”.

▪ As regards the liability of a seller under Section 16(2) of the Sales of Goods Act, the Bombay High Court has held
that in case goods of a particular description are sold by a seller who deals in such goods, he is always, in the

18
Sorabji H. Joshi and Co. vs. V.M. Ismail, AIR 1960 Mad 520.

Page | 20
 absence of agreement to the contrary, responsible for the latent defects in the goods which render them non
merchantable, whether the buyer examined them or not for all such defects, whether latent or discoverable, on
examination in cases where the buyer has not in fact examined the goods. Hence contractors seek a limited
defects liability period upon the expiry of which the risks in respect of defects and remedying the same would
be borne by the owner. However, latent defects which are inherent in material or construction of the project
may not be apparent during the initial operations of the project and may surface after the expiry of the defects
liability period. This aspect becomes important where the EPC contracts have been given by a concessionaire to
a related party company as such contracts would normally not provide for any defects liability period or even if
they provide so, the same would be substantially smaller than the industry standards. Thus, as a part of
investment negotiations, the investor may therefore consider if the EPC contracts executed by the
concessionaire needs to be re-negotiated to adequately allocate the risks in respect of defects to the EPC
contractor.

Exchange Control – repatriation of award proceeds

▪ While Indian foreign exchange laws have been relaxed over the last decade, a full capital account convertibility
is not permitted. FEMA is the primary legislation dealing with the law applicable to transactions in foreign
exchange. Foreign exchange transactions under FEMA are categorized into 2 broad divisions: (i) capital account
transactions, and (ii) current account transactions. Payments for all current account transactions can be freely
remitted outside India, unless specifically restricted. Conversely, all capital account transactions are restricted,
unless specifically permitted.

▪ A capital account transaction is defined under FEMA to mean a transaction which alters the assets or liabilities,
including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of persons
resident outside India. Current account transaction means a transaction other than a capital account transaction
and includes, without limitation, the following:

− Payments due in connection with foreign trade, other current business, services and short-term banking
and credit facilities in the ordinary course of business

− Payments due as interest on loans and as net income from investments

− Remittances for living expenses of parents, spouse and children residing abroad; and

− Expenses in connection with foreign travel, education and medical care of parents, spouse and children

▪ Proceeds of decrees of Indian courts may be considered ‘capital account transactions’. Consequentially,
repatriation of such proceeds outside India may be restricted under FEMA regulations. Thus, one typically takes
a view that the RBI’s prior approval is required for such repatriation of proceeds. The Delhi High Court in the
case of Cruz City supra., nevertheless allowed the remittance of award money. The court stated,
“notwithstanding that Unitech may be liable to be proceeded against for violation of provisions of FEMA, the
enforcement of the Award cannot be declined”. The Court further held India’s exchange control policy was
designed to facilitate flow of foreign exchange subject to reasonable restrictions and not to prohibit the flow of
exchange. The court therefore held that the necessity to seek prior RBI approval before remitting funds offshore
from India, is insufficient to refuse the enforcement of a foreign award.

Page | 21
Indemnity obligations
▪ Indian acquisition transactions are never complete without protracted debates and negotiations on
indemnification obligations of the parties. Section 124 of the Indian Contract Act, 1872 (Contract Act) defines a
contract of indemnity as, “A contract by which one party promises to save the other from loss caused to him by
the conduct of the promisor himself, or by the conduct of any other person, is called a “contract of indemnity”.
The provisions relating to indemnity are not exhaustive under the Contract Act and the law around indemnity
has developed in India through judicial precedents. It should also be noted that apart from the provisions of
indemnity, Section 73 of the Contract Act provides right to parties to claim damages in case of breach of contract
(i.e. compensation for loss or damage caused due to breach of contract).
▪ In negotiating indemnity provisions in acquisition transactions, it therefore becomes imperative that the
investor should have a clear understanding of the key differences between the right of indemnification and the
right to damages under Indian laws as the parties often confuse the two rights as one. This is because indemnity
rights are often found to coincide with the measure of damages. In such cases, whether the right is called a right
to indemnity or a right to damage, the result is the same. The 2 concepts are quite distinct from one another
and the same should be borne in mind in negotiating indemnity obligations in infrastructure contracts and
investments agreements in infrastructure acquisitions.

▪ For damages, it is essential that there is a breach of contract. However, for a right of indemnification, breach of
contract is not essential. It is for this reason that ‘specific indemnities’ are negotiated for certain events which
do not constitute breach of contractual obligations. A comparison of section 73 (damages) and section 124
(indemnity) seems to suggest that while statutory constraints are placed on the right to claim damages such as:
(i) the loss should be direct and immediately foreseeable (ii) the party claiming the loss should have taken the
measures to limit the loses (iii) the loss is not a consequential loss, etc.; indemnification rights may not be subject
to such constraints. However, parties usually require that the aforesaid limitations are incorporated under the
contract whilst negotiating indemnity provisions.

▪ Under the Contract Act, indemnity claims can be brought against third parties. Courts in India stipulated that
section 124 deals only with one particular kind of indemnity which is an indemnity arising from loss caused to
the indemnified by the conduct of the indemnifier or by the conduct of any other person. It has been clarified
that Section 124 does not deal with those classes of cases where the indemnity arises from loss caused by events
which do not depend upon the conduct of the indemnifier or any other person, or by reason of liability incurred
by something done by the indemnified at the request of the indemnifier19. However, courts have also observed
that since the Contract Act is not the exhaustive law of indemnity, equitable principles that have been applied
by Courts of England could be applied by Indian courts. Further, an indemnity can be enforced without the
occurrence of an actual loss (while a suit for damages lies upon occurrence of loss/damage) in cases wherein
the promisor incurs an absolute obligation/liability, and the contract of indemnity covers that
obligation/liability. Thus, on the happening of an indemnification event, a party (indemnified party) can compel
the indemnifying party to set aside a fund for meeting its indemnity liabilities or to pay the indemnity amounts
directly to a third party.
▪ While a court may order damages more than the actual loss that has been incurred (in the form of special or
pre-estimated liquidated damages), and in some instances less than the actual loss incurred, indemnification
generally puts a person in the same position as he was before the loss.

19
Gajanan Moreshwar Parelkar vs. Moreshwar Madan Mantri, AIR 1942 Bom 302

Page | 22
 Case Study

Although the above position in case of indemnities have been reiterated by Indian courts from time to time,
the Supreme Court in the case of State Bank of Saurashtra vs Ashit Shipping in 2002, held whilst considering
an indemnity bond, that the question of making good a loss arises only when there is proof that the loss is
suffered. In another case of insurance (which is an indemnity in a broader sense) the Supreme Court held that
it is only upon the proof of actual loss, that the assured can claim reimbursement of loss to the extent it is
established. This is quite important from the perspective of indemnity insurance (indemnifying the acquirer)
in acquisition contracts.

The observations in these cases raise a concern whether in the event of enforcement the effect of
indemnification right would be procedurally or substantially different from the contractual right to damages.

▪ The advantages of right of indemnification cannot however be ignored particularly where a party wishes to seek
recourse from the indemnifying party for losses beyond a breach of contract. Also, even in cases of a breach of
representations and warranties, or other breaches of contract, the right to indemnification can potentially be
more advantageous, given the prospective scope of claiming an amount which is higher than what would be
claimed as damages. However, as stated above, it is quite possible that in cases of breach of contract, a court
may view the right to indemnity as coinciding exactly with the right to claim damages.

▪ Clarity is also required on few questions surrounding right of recourse of the acquirer, such as: (i) does the
limitation on liability in an indemnity clause preclude a party from claiming damages for breach in excess of the
indemnity limits, outside of the indemnification clause? (ii) does a loss to the investee company always amount
to a loss to the investor for the purposes of seeking indemnification? and most importantly (iii) where damages
and indemnity coincide, to what extent are the limitations relating to damages claims relevant to
indemnification claims?

Non-compete provisions
▪ Restrictive non-compete provisions are fairly common in definitive investment documents in India (such as
share purchase agreements and share subscription agreements). Standard provisions would include restriction
on promoters and shareholders in engaging from business activities which directly or indirectly compete with
the business of the target company after acquisition. From a legal standpoint, enforcement of the same is
problematic as Section 27 of the Contract Act provides that every agreement by which anyone is restrained from
exercising a lawful profession, trade or business is void. However, such restrictions are permitted where the
transaction involves sale of goodwill provided such limits are reasonable (including in respect of period and
area/location of operations).
▪ Typically, a share acquisition transaction does not give an acquirer the interest in goodwill of a company. Since
there is no sale of goodwill, it can be argued that non-compete provisions in investment agreements are
unenforceable under section 27 of the Contract Act20.

▪ The jurisprudence on the non-compete issue seems to be evolving in India with certain courts adopting a much
liberal outlook on enforceability of non-compete provisions (although conflicting views are also present).

20
Bacha F. Guzdar v. CIT AIR 1955 SC 74 - An acquirer who buys shares of a company does not buy interest in the property (and hence, goodwill)
of the company.

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 Case Study

In one case of share purchase transaction21, the seller sold his company at a huge premium to the buyer. The
seller also agreed to not undertake any business that competes with the target’s business in India and abroad
for a period of 5 years. The single judge bench of the Delhi High Court held that Indian law prescribes complete
embargo on such restrictions (with the sole exception of sale of goodwill). The court held that the sale of the
shares did not tantamount to the sale of business and goodwill. The court further held that even if the parties
intended to sell goodwill, the non-compete restrictions were very wide as they imposed a complete embargo
on seller’s employment and were therefore unreasonable.
However, a single judge bench of the Delhi High court disagreed with the above decision in another case22.
In this case, 2 doctors (pathologists and radiologist) sold their entire shareholding in their diagnostic business.
The investment agreement prohibited these sellers in engaging in any business which competes directly or
indirectly with the business of the target. While the term and geographical limit of the non-compete were not
specified in the investment agreement, the seller did agree in the agreement that the non-compete restrictions
were fair and reasonable, and their experience would enable them to work gainfully in a non-competing
business. Despite being retained in the target, the sellers started undertaking competing business in the same
city during the term of their retainership. The single judge bench of the Delhi High Court held that non-compete
restrictions are enforceable where the transaction involves sale of all shares of a company as with the shares,
the goodwill of the company also passes to the acquirer. Although the transaction documents were silent on
the term and location for non-compete, the court held that 5-year restriction within the city would be a
reasonable restriction. The above judgement was affirmed by a Division Bench of the Delhi High Court with one
disagreement from the view of the single judge. The Division Bench held that the sellers cannot be restrained
from carrying out their activities as professionals. As per the Divisional Bench restriction would however prevent
the doctors from corporatizing their business.
A decision of the European Commission (EC)23 indicates that the duration of post-JV non-compete is not more
than 3 to 5 years in Europe. In this case, Siemens and Areva created a full-function JV, Areva NP (Areva JV). The
shareholders' agreement included a non-compete clause which covered not only the lifetime of the Areva JV but
also, a period of 8 to 11 years after loss of joint control by Siemens over the Areva JV. The post-JV duration was
later reduced by an arbitral award to 4 years.
In assessing the post-JV non-compete, the EC found that the 4 year duration could not be justified and the parties
committed to reduce it to 3 years. The EC primarily relies on the duration for which confidential information
acquired by the parent would continue to be relevant. The EC order clarifies that the assessment of permissible
duration of the non-compete will vary across sectors. Impact of access to confidential information, duration of
customer/supplier contracts and customer loyalty are some factors which would be relevant to determine
duration of non-compete.

Although, the first two examples go to show that some courts are of a view that the non-compete restrictions would
be enforceable as goodwill passes where there is a 100% sale of shares, other High Courts may opine otherwise. The
ambiguity around non-compete clauses in acquisition transactions will remain until the issue is finally laid to rest by
the Supreme Court.

21
Le Passage to India Tours & Travels (P) Ltd. v. Deepak Bhatnagar (2014) 209 DLT 554.
22
Lal Pathlabs (P) Ltd. v. Arvinder Singh 2014 SCC OnLine Del 2033.
23 EC decision dated June 18, 2012 addressed to Areva SA and Siemens AG.

Page | 24
Another issue that arises as regards non-compete provisions is whether payment of a non-compete fees by a person
resident in India to a person resident outside India would amount to a ‘current account transaction’ or a ‘capital
account transaction’ under FEMA. Such determination may also vary on the manner in which the non-compete fees
is payable. If the non-compete fee is treated as a ‘capital account transaction’, then prior approval of the RBI would
be required in such case.

Taking cues from the observations, non-compete restrictions in share acquisition transactions should be carefully
drafted with specific considerations in mind that: (i) the restrictions should be reasonable in terms of their duration
and geography (ii) the investment agreements should clearly set out that goodwill is pertinent to the investment
transaction and (iii) the post-closing restrictions should be linked to sale considerations instead of employment
agreements with individuals.

Subsistence of representations and warranties

▪ Acquisition transactions have protracted negotiations on the representations and warranties that an investor
would like the seller to provide. To limit their liabilities, sellers often negotiate provisions to limit their exposure
to liabilities against breach of representations and warranties. As such, the seller would seek to incorporate:

− Timelines within which an investor may bring a claim for breach of representations and warranties; and/or

− Period after which identified representations and warranties may fall

▪ From a careful reading of Section 28 (b) of the Contract Act24 one can note that clauses which seek to extinguish
the contractual rights of any party or discharge any party from any liability under a contract on the expiry of a
specified period so as to restrict any party from enforcing his rights are void.
▪ There are numerous judicial precedents which confirm the position. The Madras High Court in Oriental Insurance
Co Ltd v Karur Vyasya Bank Ltd reported in AIR 2001 Mad 489 held

“… its is clear that by the Indian Contract (Amendment) Act, 1997, the original Section 28 has been replaced
by a new paragraph in which such extinction of right unless exercised within a specified period of time, if not
beyond the period of limitation, is also rendered void. As observed earlier, in the absence of any specific
reference in the amended Act, it is prospective in nature and the same cannot affect the contract made
earlier. However, the law as it now stands after this amendment not only the curtailment of limitation period
is impermissible, but also the extinction of right, if sought to be brought by the agreement within a specific

24
“Section 28 – Agreements in restraint of legal proceedings, void-

Every agreement,
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal
proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto or discharges any party thereto, from any liability, under or in respect of any
contract on the expiry of a specified periods so as to restrict any party from enforcing his rights,is void to that extent.
Exception 1: Saving of contract to refer to arbitration dispute that may arise. This section shall not render illegal contract, by which two or more
persons agree that any dispute which may arise between them in respect of any subject or class of subject shall be referred to arbitration and that
only and amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Exception 2: Saving of contract to refer question that have already arisen – Nor shall this section render illegal any contract in writing, by which
two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force
for the time being as to reference to arbitration
Exception 3- Saving of a guarantee agreement of a bank or a financial institution:
This section shall not render illegal a contract in writing by which any bank or financial institution stipulate a term in a guarantee or any agreement
making a provision for guarantee for extinguishment of the rights or discharge of any party thereto from any liability under or in respect of such
guarantee or agreement on the expiry of a specified period which is not less than one year from the date of occurring or non-occurring of a specified
event for extinguishment or discharge of such party from the said liability.

Page | 25
 period, which period is less than the period of limitation prescribed for the suit under the contract in question
is also rendered void"25 .
▪ It should be noted that Section 28(b) seems to prohibit only extinguishment of contractual rights or liabilities
after a specified time period so as to restrict any party from enforcing his right i.e. restricting the right to sue. It
still needs to be analyzed as to whether this should be read to mean that clauses in a contract which limit the
validity of representations and warranties to a specified period are also invalid under Section 28(b). While
Section 28 (b) prohibits the restriction on extinction of right of the aggrieved and of the liability of the breaching
party if the former does not bring a claim within a specified period, there is nothing in Section 28(b) which
prohibits parties from restricting the tenure of representation or warranty i.e. period for which the warranty
subsists.

▪ In Pearl Insurance Co v Atma Ram reported in AIR 1960 Punj 236, the Punjab and Haryana High Court had held
that a contract which did not limit the time within which the insured could enforce his rights, but only limited
the time during which the contract would remain alive was not hit by section 28.
▪ Clauses which require a claim for breach of representations and warranties to be asserted in a specified period
of time or which prescribe a period for the operation of the contract have to be distinguished from conditions
imposed in a contract which put an embargo on the right of enforceability of the claim after a specified time
period. The former can utmost be construed as a condition precedent for filing of the suit – that violation of
right should be asserted within the period agreed to between the parties26. Whereas, in the latter case, if
agreements provide for a time period for filing suit (after occurrence of the cause of action within the validity
of the contract) lesser than that in the Limitation Act, 1963 (Limitation Act), the same would be void.

▪ Thus, if the cause of action arises during the validity of the contract, the right to bring a claim cannot be
restricted to a time period lesser than that prescribed under the law of limitation. However, there is nothing in
law to prohibit a contract which prescribes a time period for its validity after which all rights and liabilities
thereunder stand extinguished if no cause of action arises during such time.

▪ Accordingly, although it may not be possible to restrict the time period within which a claim for breach is to be
brought, it may be possible to restrict the tenure of a representation or warranty under a contract and avoid
claims which arise after the expiry of the same. This should be borne in mind by the investor during its
negotiations of representations and warranties.

25
Another precedent is Union of India (UoI) through Textile Commissioner v Bhagwati Cottons Ltd, G P B Fibres Ltd And Indusind Bank Ltd reported
in 2008 (5) Bom CR 909.
26
The Food Corporation of India v. The New India Assurance Co. Ltd., AIR 1994 SC 1889

Page | 26
Difficulties of borrowers vis a vis bank guarantees
▪ From the above, one may note that
the first part of Section 28 i.e. sub-
section (a) deals with restriction on
enforcement of rights or limiting the
time of enforcement of rights while
second part of Section 28 i.e. sub-
section (b) deals with extinguishment
of rights or discharge of liability
leading to restriction on enforcement.

▪ Section 28 of the Contract Act

provides for certain exception to the
above restriction. One of these being
Exception 3 which was introduced vide
Banking Law (Amendment) Act, 2012 which came into force on 18th January 2013. The said Exception 3 deals
with guarantee agreements of a bank or a financial institution.

▪ As per the said Exception 3, a contract in writing by which any bank or financial institution stipulate a term in a
guarantee or any agreement making a provision for guarantee for extinguishment of the rights or discharge of
any party thereto from any liability under or in respect of such guarantee or agreement on the expiry of a
specified period which is not less than one year from the date of occurring or non-occurring of a specified event
for extinguishment or discharge of such party from the said liability, shall not be illegal under Section 28 of the
Contract Act.

▪ Due to the said Exception 3 and in view of Circular dated 10.02.2017 (IBA Circular) issued by Indian Bank’s
Association, banks in India are:

− Incorporating a minimum claim period of one year in bank guarantees even in case of bid bonds or
performance guarantees where the underlying contract/transaction is valid for a much shorter period

− Demanding payment of guarantee commission for the entire claim period of one year

− Not releasing the cash margin/security until the expiry of claim period of one year
▪ The aforesaid action of the banks is leading to various difficulties being faced by borrowers/applicants, viz:

− Based on commercial and business requirements, bank guarantees are issued for various tenors. Bid-bond
guarantees for example requires a small tenor of few days such as 7-15 days. The IBA circular and the issuing
bank’s interpretation now makes it mandatory for the borrowers/applicants to keep their liability open for
one year.

− This causes severe hardships as the borrowers/applicants are forced to keep the bank guarantees alive for
such period. In this regard, the issuing banks are charging guarantee commission till the expiry of the claim
period.

− The government, government entities and many other beneficiaries neither return the original bank
guarantees nor issue a release letter to discharge the guarantee obligations of the issuing bank. This in turn
keeps the underlying obligations of the borrower/applicant open till such time the beneficiary does not
return the original bank guarantees or issue a release letter.

Page | 27
 − This limits the borrowing powers as the liability of the borrower/applicant continues to show as a
contingent liability in the books of both the bank and the borrower/applicant, though in reality the
performance/payment obligations no more subsist under the bank guarantee.

− Further, security offered by the borrower/applicant by way of cash or collateral also get stuck thereby
creating a huge stress on the liquidity.

▪ Investors must take into consideration the above practical difficulties while investing in a project concessionaire.

Deemed Public Companies

▪ Under Indian corporate law, a private company which is a subsidiary of a public company is a ‘deemed public
company’. Consequently, all exemptions otherwise available to a private company under the Companies Act
(including in respect of various compliances) would not apply to such deemed public companies.
▪ This is relevant where an investor proposed to ultimately invest in a private company and intends to benefit
from private company exemptions. If, pursuant to such investment, there is a change in control/shareholding
of such investee private company at its holding company level, basis which it becomes a deemed public
company, such a deemed public company would no longer be entitled to any private company exemptions.

▪ To illustrate, under the Companies Act, from a financing perspective, companies are restricted from financing a
purchase of their own/holding company’s shares. While private companies are exempt from such restriction,
this exemption would cease to be available once the investee company becomes a deemed public company.
Likewise, from a corporate governance perspective, interested directors of public companies are not permitted
to vote on matters while in private companies, ‘interested directors’ can vote so long as they disclose their
interest in a particular transaction. This exemption would not be available to a deemed public company.
Investors should be conscious of these provisions given the key impact on their investment from governance,
administration, financial and investment structuring perspective.

Employee Claims: Non-compliance of social security legislations

▪ Employee claims, especially those that arise from
non-compliance of social security legislations such as the
Employees’ Provident Funds and Miscellaneous Provident
Act, 1952 (EPF Act), continue to expose the target
company to risks, which should be adequately addressed
by the investor in the definitive documents in any M&A
transaction. Generally, the investor would seek
representations relating to the target company being in
compliance of, and having paid, all statutory contributions
fully and regularly.
▪ In terms of the EPF Act read with the Employees' Provident Funds Scheme, 1952, employers are required to
contribute, depending on the nature of the establishment, 10% or 12% of the ‘basic wages’ of the employees to
the employees’ provident fund (Fund) maintained by the Employees Provident Fund Organisation. It is not
uncommon for employers in India to structure the compensation package of their employees by segregating the
compensation into various heads, in addition to ‘basic wage’ (such as education allowance, conveyance
allowance, medical allowance etc.), with a view to reducing their liability to make contributions to the Fund
(which is required to be determined on the basis of ‘basic wages’).

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 Case Study

In the recent judgement of The Regional Provident Fund Commissioner (II) West Bengal vs. Vivekananda Vidyamandir
& Ors (the Vivekananda Decision), the Supreme Court reiterated the test laid down in its earlier decisions in Bridge
and Road Co Ltd [(1963) 3 SCR 978] and Manipal Academy of Higher Education vs. Provident Fund Commissioner
[(2008) 5 SCC 428], and held that ‘basic wages’ would not take within its ambit any special incentive or production
bonus given to more meritorious workmen who put in extra output which has a direct nexus and linkage with the
output by the eligible workmen. However, wage which is universally, necessarily and ordinarily paid to all across the
board, are basic wages, and should therefore be included in the calculation of contribution to be made to the Fund.
A review application which was filed in relation to the Vivekananda Decision was dismissed by the SC on August 29,
2019.

Higher period of limitation for the Government/Concession Authority

▪ The Indian law of limitation viz. the Limitation Act prescribes the time limit which is given for different suits,
appeals and applications to an aggrieved person within which it can approach a court for redress or justice. It
has a very wide range, considerably, to include almost all the court proceedings. However, where any special or
local law prescribes any period of limitation for any suit or proceedings other than what is prescribed under the
Limitation Act, the limitation prescribed under such local or special law will prevail.
▪ A limitation period commences when the cause of action arises, that is, when a party becomes entitled to make
a claim27. The Limitation Act prescribes a higher period of limitation for Government for pursuing a claim as
compared to a private party. The fact that the government is given 30 years to bring certain claims against
private parties as opposed to private parties who are given usually 3 years under the Limitation Act, is a legal
testimony of the fact that government machinery moves very slowly. The same may apply in case of a concession
agreement enabling the Government/concession authority to bring in a claim against the concessionaire after
the passing of a considerably long period since the occurrence of the cause of action.
▪ Delay in referring a claim is not curable and can result in its dismissal unless such delay is condoned by the court
having required jurisdiction. The court may condone the delay if it is convinced that there was a ‘sufficient cause’
in referring of such claim. Determination whether there exists sufficient cause, is subject to discretion of the
courts. Traditionally, the Indian courts have been lenient in condoning delays by the Government in preferring
claims. However, in some instances, the courts have expressed that delay in preferring a claim by the
Government due to procedural red tape should not be a sufficient cause.

27
The question as to when a cause of action has arisen may vary from case to case and has been a matter of judicial interpretation in numerous
cases.

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 Case Study

Section 120 of the MPTA provides that no suit or other proceeding can be commenced against a Board of Trustees or
any member or employee thereof, for anything done, or purporting to have been done, in pursuance of the MPTA,
until expiration of 1 (one) month after notice in writing has been given to the Board of Trustees or him stating the
cause of action, or after 6 (six) months after the accrual of the cause of action.
As per Section 79 of the Mines Act, 1952 (Mines Act) no court can take cognizance of any offence under the Mines
Act unless the complaint has been made:
(i) within 6 months from the date on which the offence is alleged to have been committed, or
(ii) within 6 months from the date on which the alleged commission of the offence came to the knowledge of the
Inspector (as defined under the Mines Act), or
(iii) in cases where the accused is or was a public servant and previous sanction of the Central Government or State
Government or of any other authority is necessary for taking cognizance of the offence under any law for the
time being in force, within 3 months from the date on which the sanction is received by the Chief Inspector (as
defined under the Mines Act), or
(iv) in cases where a court of inquiry has been appointed by the Central Government under Section 24 of the Mines
Act within 1 year after the date of the publication of the report.

Liquidated damages and penalty

▪ As is common practice worldwide, construction contracts provide for contractor to pay liquidated damages to
the employer for various non-performances such as the failure of the contractor to perform its obligations within
the time prescribed in the agreement. In India, provisions for contractual damages are enshrined of the Contract
Act. Section 73 and 75 deal with compensation for loss or damage arising on account of breach and
compensation for damage that a party suffers on account of non-fulfilment of a contract after such party
rightfully rescinds the contract. Section 74 on the other hand, is available when the contract provides for a pre-
determined amount as compensation, or where there is any other stipulation by way of penalty28.
▪ Often in contractual disputes one is forced to delve into the questions such as the extent of jurisdiction of Indian
courts to award compensation on a clause on liquidated damages; the measure of damages under section 74 of
the Contract Act; and when the clause provides for a genuine pre-estimate of loss or damages is there still a
need to prove it?
▪ Firstly, it would be prudent to understand that there is a stark difference of the position in English law in respect
of liquidated damages vis a vis Indian law which was clarified by the Supreme Court in Fateh Chand v. Balkishan
Dass29. In this case, the Supreme Court considered section 74 as it stands and contrasted it with the position
under English common law. It found that under English common law, a mutually agreed genuine pre-estimate
of damages is considered by courts as liquidated damages and claims thereon are sustained. Stipulations in a
contract in ‘terrorem’ are treated as penalty and courts refuse to enforce such clauses, awarding only a
reasonable sum as compensation30. According to the Supreme Court, section 74 is a conscious attempt by the

28
While liquidated damages are such damages as have been agreed upon and fixed by the parties in anticipation of breach, un-liquidated damages
(such as under Section 73) are such damages as a required to be assessed.
29
AIR 1963 SC 1405
30
In English Law if the stipulation in the contract specifying the amount of money required to be paid by a defaulting party to the other for breach
is a genuine pre-estimate of damages likely to be caused, it is called liquidated damages and are recoverable under law. If there is no genuine pre-
estimate of loss, the same will be termed penalty and the said penal clause would be considered void. The enforceability of penalty i.e the
detriment imposed in the provisions of the contract is disproportionately excessive in comparison with the legitimate interest of the innocent

Page | 30
 legislature to move away from complex rules and presumptions under English common law, to distinguish
between stipulations providing for liquidated damages and those in the nature of penalty. Section 74 provides
uniform principle which apply to named sums as well as any other stipulation in the nature of penalty. Thus, if
a stipulation is found to be a genuine pre-estimate of the damages, the court shall award the amount decided
by the parties. However, if the stipulation is found to be in the nature of a penalty then, unlike the English Law,
where the clause becomes void and irrecoverable, as per the Indian law, the court shall assess the extent of the
loss or damage suffered by the aggrieved party and shall award reasonable compensation to it. The focus of the
section thus is on reasonable compensation. Compensation is said to be reasonable if it is awarded in
accordance with settled principles of law. Though, the court has unqualified jurisdiction to award such
compensation as it deems reasonable, it is subject to the maximum amount that has been stipulated by the
parties within the contract.
▪ While the principles laid down in the case of Fateh Chand supra. have endured for over half a century, the latest
precedent is the 2015 decision of the Supreme Court in Kailash Nath Associates v Delhi Development Authority
and Another31.
▪ In India, the clear principles that emerge from the line of precedents on the subject can be summarized as:

− legal injury is an absolute essential for award of compensation under section 74;

− section 74 merely dispenses with the proof of ‘actual loss or damage’, it does not justify award of
compensation when no legal injury results as a consequence of breach;

− the party complaining of a breach can receive a named amount as compensation in instances where exact
loss or damage is difficult to prove, provided it is a genuine pre-estimate of damage, fixed by both parties
and found to be so by court;

− in other instances, the measure for damages is ‘reasonable compensation’, subject to the limits set out in
the clause on liquidated damages. Such compensation is to be fixed on settled principles found, inter alia,
in Section 73;

− while awarding compensation due regard is to be given to conditions existing on the date of breach;

− jurisdiction of courts to award compensation is unqualified except as to the limit stipulated; and

− the provision applies with equal force to amounts already paid or those payable in future.
▪ The bone of contention in almost all cases has been the use of the expression ‘whether or not actual damage or
loss is proved to have been caused thereby’ in section 74. The question uppermost in the minds of people
dealing with clauses on liquidated damages is: ‘What is the reason for courts to delve into the issue of reasonable
compensation when an amount, which is termed as a “genuine pre-estimate” is already stated in the contract?’
This is usually followed by: ‘Is it not counterintuitive to seek to fix compensation by reference to section 73
despite there being a named sum in the contract?’

party (such as monetary loss) is not recognized under English Law. The House of Lords in Dunlop Pneumatic Tyre Co., Ltd. v. New Garage and
Motor Co., Ltd. 1915 AC 79 had laid down that if a stipulation is such that it operates “in terrorem” of the offending party to secure the performance
of contract and if such sum is extravagant, unconscionable and disproportionately large then it shall operate as a penalty. Penalty clauses are void
and irrecoverable in nature. Though the penal sum operates as a form of punishment on the defaulter irrespective of any loss, the liability of the
defaulter is restricted only for those damages which can be proved against him. The English Law thus is said to impose the requirement of proving
actual damage in case a stipulation is by way of a penalty.
31
(2015) 4 SCC 136

Page | 31
▪ In Maula Bux v Union of India32, the Supreme Court explained that the expression is intended to cover different
classes of contracts. In case of breach of some contracts it may be impossible for the court to assess
compensation arising from the breach. It is in these circumstances that the sum named by parties may be taken
into consideration as the measure of reasonable compensation, provided it is a genuine pre-estimate and not
in the nature of a penalty. Where loss in terms of money can be determined, the party claiming compensation
has necessarily to prove the loss suffered and, in such instances, the courts are bound to assess the
reasonableness of compensation claimed. It is while doing so that the courts will apply the principles under
section 73. It is important to understand that the courts are reluctant to countenance a position that is
predicated on making a windfall out of a contractual breach. Therefore, unless damage or loss is shown to have
been suffered, and the extent thereof measured and assessed, the courts will refuse to enforce a clause on
liquidated damages. What also needs to be borne in mind is that this principle applies to both named amounts
in contract as liquidated damages as well as any other stipulation in the nature of a penalty. Further in either
case, the liquidated amount or penalty is the upper limit and the courts cannot grant compensation beyond that
amount.
▪ One of the other tests to sustain a clause on liquidated damages is to ascertain whether it was mutually agreed
upon by the parties possessing equal bargaining power. In Phulchand Exports Limited v O O O Patriot33, the
Supreme Court considered section 74 of Contract Act and held that the clause for reimbursement for the seller’s
failure to deliver the shipment and of the amount paid by the buyer, was neither in the nature of threat, nor
was it in the nature of penalty and even in the absence of such a clause, where the seller has breached their
obligation at the threshold, the buyer is entitled to the return of the price paid plus damages. The seller sought
to set aside the arbitral award granted earlier on the grounds that it was punitive and, therefore, contrary to
public policy, to which the court held that when experienced business people enter into commercial contracts
and have equal bargaining power, the agreed terms of contract must be respected as the parties may have taken
into regards, matters of their knowledge. Further, in ONGC vs. SAW Pipes Ltd.34, the Supreme Court further held
that that if the parties knew when they made the contract that a particular loss is likely to result from such
breach, they can agree for payment of such compensation. In such a case, there may not be any necessity of
leading evidence for proving damages, unless the court arrives at a conclusion that no loss is likely to occur
because of such breach. However, when the terms of the contract are clear and unambiguous, then its meaning
is to be gathered only from the words of the contract. The Supreme Court also stated that where an agreement
is executed by experts in a field, it would be difficult to hold that the intention of the parties was different from
the language used. In such a case, it is for the party who contends that the stipulated amount is not reasonable
compensation to prove the same.
▪ Parties committed to reducing litigation and providing commercial certainty opt for a liquidated damages clause
in commercial contracts, particularly when the sector is subject to regulatory regimes such as
telecommunications. While determining the nature and enforceability of liquidated damages clause contained
in an interconnect agreement, the Supreme Court in Bharat Sanchar Nigam Limited v Reliance Communication
Limited35, clarified that before demarcating a damages clause as liquidated damages or penal, the loss was
measured based on costing, pricing and maintenance of a level playing field. Since the amount represents a pre-
estimate of reasonable compensation, section 74 was not violated. Moreover, when the damage is difficult to
calculate, it enhances the presumption that the agreed sum is a genuine attempt to estimate the loss and
overcome difficulties of proof at the time of trial.

32
(1969) 2 SCC 554
33
(2011) 10 SCC 300
34
(2003) 5 SCC 705
35
(2011) 1 SCC 394

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▪ Another point of consideration is with the implications of Goods and Service Tax (GST) on the payment of such
damages under a contract, and that among other factors, contractual terms are relevant to judge whether the
payment of liquidated damages would attract taxation. It is relevant to consider the decision of the Appellate
Authority for Advance Authority in the case of Maharashtra State Power Generation Company Limited36, where
it was held that liquidated damages falls under clause 5(e) of Schedule II attached to CGST Act liable to payment
of GST at the rate of 18% payable as per Section 13 of CGST Act, when the same is imposed on the defaulting
subcontractor by the principal.

▪ In conclusion, to ensure that an enforceable claim of liquidated damages arises at the end of a hard-fought
litigation, it is necessary to spend some time on the clause on such damages when it is being drafted. The
principles outlined above, come from some of the most important decisions on this point in the jurisdiction and,
if followed assiduously, will assist in ensuring enforcement of a decree/award of amount as liquidated damages
before the Courts in India.

Enforceability of Take or Pay Provisions

▪ Take or pay contracts/clauses37 are common in the energy industry and in particular for gas sales. Take or pay
provisions are also common in electricity sales agreements in India particularly because they were permitted in
the context of supply of electricity under Indian electricity laws. However, take or pay clauses which fall outside
the scope of a prescribed law (such as in a contract for gas sales/supply), have not been often litigated and the
law on such clauses is therefore not yet certain in India. In the case of ONGC v. Association of NGC Industries of
Gujarat AIR 1990 SC 1851, the Supreme Court briefly seems to have approved a take or pay clause in a gas
purchase agreement, despite the absence of a statutory provision of law. However, the Supreme Court did not
examine or opine on the rationale for upholding the same. Thus, the law relating to take or pay is not free from
doubt.

▪ There is a risk that a take or pay clause may not have its intended effect under Indian law as the payments for
the deficiencies towards taking a product could be construed by the Indian courts as liquidated damages and
the payments to be made under a take or pay clause could be taken to be an upper limit of the amounts actually
to be paid and could therefore be subject to the challenge of reasonable approximation in courts. Further, one
may also argue before the courts that the amount of damages is not commensurate to the actual damage that
may have been suffered by the supplier on account of failure of the buyer to take the product. This is because,
upon payment of the damages, the product remains in the hands of the supplier and may not be available for
supply to the buyer at a future date. In such case, sale of the product by the seller to a third party would be an
unjust enrichment on the part of the seller.
▪ It however seems that internationally, take or pay does not necessarily qualify to liquidated damages –
particularly in the oil and gas industry. We note that courts in USA have found that so long as the purchaser
either buys the gas or makes the deficiency payment no breach has occurred and therefore there are no
liquidated damages because the payment of the deficiency amount is not a remedy but instead a second
alternative means of performance. Failure to take and pay for gas merely constitutes a decision not to perform
the first alternative obligation and is not a repudiation of contract. Repudiation of contract does not occur until
the buyer refuses to make the required deficiency payments. Hence the deficiency payment obligation is not a
provision designed to provide the measure of damages when the buyer fails to take or pay for the gas under the
contract. We also note that courts in England have maintained that the rule in respect of penalties will only

36
2018 (17) GSTL 451
37
Broadly, in a take of pay contract/ clause, a company either takes the product from the supplier or pays the supplier for the deficiency. Typically,
upto an agreed upon ceiling, the company has to pay the supplier even for the products it did not take. This payment is usually lower than the
usual price for supply of gas.

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 apply where there is a breach of contract. If a sum has to be paid (under take or pay) for making service available,
the same would be regarded as a primary obligation (debt) and not a secondary obligation (damages).
▪ Thus, contrary to the argument to liquidated damages, it could be argued that the take or pay amount is merely
a pre-determined amount payable by the buyer to the seller on a specific omission and is not in the nature of
damages clause/penalty provision. However, in the absence of any decided case law, the ability of the Seller to
recover the entire contracted take or pay amount (refuting Section 74 of the Contract Act) is not free from
doubt.

▪ Although we have not come across any case law where the courts have upheld the obligation for payment of
minimum fixed charges in long term agreements for supply of goods/services (as a primary obligation and not
as an amount payable on breach within the meaning of Section 74 of the Contract Act), some relevant decisions
(in addition to the NGC Industries case supra.) may be worth highlighting:

− The obligation for payment of minimum guaranteed amounts pursuant to long term electricity supply
contracts has been upheld by the courts. In Amalgamated Electricity Co. v. Jalgaon Borough Municipality38,
the respondent contested the validity of an obligation for consumption of an agreed minimum quantum of
electricity, pursuant to a five-year electricity supply agreement. Under the agreement, the respondent had
agreed to a minimum consumption of electricity for 16 hours a day. The Supreme Court held that such
obligation embodies “what is known in common parlance as the doctrine of minimum guarantee i.e., the
Company39 was assured of a minimum consumption of electrical energy by the Municipality40 and for the
payment of the same whether it was consumed or not. That was the reason why the Company was prepared
to charge a minimum rate of … (which was) was actually the consideration for the minimum guarantee
allowed to the plaintiff …”

− The Supreme Court largely based its decision on the proviso of Section 2241 of the Indian Electricity Act,
1910 which states as follows:

“Obligation on licensee to supply energy: Where the energy is supplied by a licensee, every person within the
area of supply shall, except insofar as is otherwise provided by the terms and conditions of the licence, be
entitled, on application, to a supply on the same terms as those on which any other person in the same terms
as those on which any other person in the same area is entitled in similar circumstances to a corresponding
supply.

Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of energy
for any premises having a separate supply unless he has agreed with the licensee to pay to him such
minimum annual sum as will give him a reasonable return on the capital expenditure, and will cover other
standing charges incurred by him in order to meet the possible maximum demand for those premises, the
sum payable to be determined in case of difference or dispute by arbitration.”

− The Supreme Court further justified the levy of the minimum charges by observing that in order for the
electricity supplier to supply electricity to the consumer at the concessional rates “it had to lay down lines
and to keep the power ready for being supplied as and when required. The consumers could put their
switches on whenever they liked and therefore the plaintiff had to keep everything ready so that power is

38
AIR 1975 SC 2235
39
i.e. the Electricity Supplier
40
i.e. the Consumer
41
Section 22 stated as follows: “Obligation on licensee to supply energy : Where the energy is supplied by a licensee, every person within the area
of supply shall, except insofar as is otherwise provided by the terms and conditions of the licence, be entitled, on application, to a supply on the
same terms as those on which any other person in the same terms as those on which any other person in the same area is entitled in similar
circumstances to a corresponding supply.”

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 supplied the moment the switch was put on. In these circumstances, it was absolutely essential that the
plaintiff should have been ensured the payment of the minimum charges for the supply of electrical energy
whether consumed or not so that it may be able to meet the bare maintenance expenses.”

− The above observation appears to lay down some rationale for a prima facie justification of the levy of a
minimum charge under a long-term supply contract involving the establishment of some infrastructure and
facilities and keeping them in a state of readiness for performance de hors a statutory backing for such levy.
The Supreme Court has relied on this case while giving its decision on the NGC Industries case supra – which
did not have any applicable statutory legislation analogous to the aforementioned Section 22. It stated that
“If any authority regarding the rationale of such a clause is needed, it is to be found in the decision of this
Court in Amalgamated Electricity Co. Ltd. V. Jalgaon Borough Municipality”.

− Another case that may of relevance is Mahavir Khandsari Sugar Mill v. MSEB42. The purchaser agreed to
consumption of a minimum guaranteed power from MSEB in a long-term electricity supply agreement of 7
years. The value of the same was pre-determined pursuant to which minimum monthly charge was payable.
The agreement also provided that the purchaser will, inter alia be “additionally liable to continue to pay the
minimum charges and the minimum guarantee payable thereunder” in the event of suspension of supply by
MSEB due to breach or default of the purchaser.

− MSEB discontinued electricity supplies due to recurring defaults by the purchaser in payment of its
electricity dues and claimed payment equivalent to charges the minimum guaranteed amount for the prior
periods and for the residuary unexpired period of the contract. The purchaser contended that the
obligation to pay the minimum guaranteed amounts was in the nature of a penalty and therefore
unenforceable. The Court upheld the obligation to pay the minimum charges on the basis of the decision
of the High Court in Gujarat Electricity Board v. Shree Rajaratna Naranbhai Mills Co. Ltd.43 wherein the court
had apparently held that : “… the provision of minimum charge in the agreement between a consumer and
a licensee is but one of the modes of providing for reasonable return to the licensee for the investment that
it has made and on the capital outlay that it has made and merely because the agreement provides for a
minimum charge, it cannot be said that the terms are unreasonable or that a monopoly concern has taken
undue advantage over the consumer in the area of supply … the agreement did not come to an end nor was
the Board disentitled to levy minimum charges during the period of discontinuance of supply.”
Similar arguments were raised by the purchaser that the MSEB had not spent a large amount in installing the
supply lines and therefore the minimum charges are unconscionable. The court rejected this argument and
said there may be other arrangements required to be undertaken by MSEB which may also be of a recurring
nature.

− The Court further upheld the levy of the minimum guaranteed charge for the unexpired period of the
contract and stated that MSEB “expected some reasonable profit from the investment it was making and
from the facility that it was giving to defendant No. 1. Plaintiff bound itself to supply energy for a period of
7 years and in consideration of its commitment expected the 1st defendant to consume a certain minimum
of units … Where the parties themselves fixed the liquidated damages payable in the event of a breach of
the agreement, Court will be slow to interfere with the terms of the agreement reached between them.”
▪ From an investor’s perspective, take or pay contracts provide a degree of certainty of revenue and hence are
protective of its investment. Therefore, the enforceability of such obligations is significant.

42
AIR 1993 Bom 279
43
(1975) 16 Guj LR 90

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NET Metering
State governments have adopted Model Net Metering Regulations, 2013 which were framed by the GOI with few or
no changes in the respective regulations framed by the them to provide for Grid Connected Rooftop Solar PV plants
(GRPV). However, implementation of the same has not been robust for many reasons. While sale of power to the
grid by residential and commercial customers is permitted, the policies for the same differ from state to state.
Implementation of net metering has not been effective, given that the state promotion of grid interactive rooftop
solar generation adversely affects DISCOM’s business as the grid interactive rooftop projects are able to offer
competitive tariffs. Net metering policies across states are inconsistent and seem to restrict the development of
rooftop solar based on system size, connection type, metering type, developer model (OPEX/CAPEX) and approval
time and procedure. For instance:
▪ In Gujarat, consumers are not allowed to choose a third party owned installation;
▪ Approvals in states like Maharashtra, Karnataka and Tamil Nadu for developers could take between three to six
months, while in some other states the timelines are between 25 and 30 days;

▪ Certain states do not allow industrial net metering (e.g. Tamil Nadu). Even though there is enough roof space to
increase capacity, the industries would be forced to consume the same;

▪ In some cases, electricity transmitted to the grid is not recognized by the meter and the same is read as energy
consumed rather than supplied; and
▪ Certain states cap net metering only up to 1 MW, despite the availability of space to generate more.

The forum of regulators has identified the following gaps in the net metering systems in India and have made
recommendations to resolve the gaps:

Technical aspects
▪ Restrictions in terms of individual capacity based on sanctioned load and maximum GRPV capacity.

▪ Different limits on GRPV capacities connected to direct transformer.

▪ Limited provisions on real time monitoring of solar generation and participation in system operations, required
for large penetration of GRPV systems.

Commercial aspects
▪ Limited business models options available to consumers and developers.
▪ Absence of additional clauses related to change of ownership and overall flexibility in existing PPAs and
connection agreements.

▪ No remuneration for excess generation in present energy accounting and commercial settlement principles.

Further, many states have forced the existing connections to move from net metering to gross metering which has
put project developers/ rooftop owners in a dilemma as it is difficult for them to renegotiate the commercials of the
PPAs that have been executed by them keeping the net metering requirements in mind.

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 Curtailment of Power
The above has been a long pending issue where the government owned DISCOMs have arm twisted power producerS
by curtailing the procurement of power under the terms of their PPAs. There has been limited acknowledgement
from central and state governments about the commercial motives behind such curtailment. Although PPAs do allow
the producers to sell the power to third parties in the event of curtailment of power, it is difficult to find procurer
on immediate basis to be able to utilize the available capacity of the power producers. Also, uncertainty over demand
schedules by the DISCOMs is another pain point for the producers as they are not able to commit and negotiate
supply to third parties in the event of curtailments.

However, we have seen certain activism from regulatory commissions towards the issue. For instance, the Tamil
Nadu Electricity Regulatory Commission, for the first time, pulled up the state load dispatch centre (SLDC) for
curtailment in an April 2019 order issued in response to a 2017 petition of the National Solar Energy Federation of
India. The SLDC was asked to submit a quarterly report of curtailed renewable energy/RE generation with clearly
documented reasons for each back down order and told that “any whimsical backing down instruction would attract
penal action under section 142 of the Electricity Act 2003 on concerned officials.”
The Ministry of New and Renewable Energy has time and again asked states to refrain from curtailment. It has
decided to increase the compensation for curtailment to up to 100 per cent of the average generation per hour
during the month, under the latest amendment introduced to the solar competitive bidding guidelines. However,
whether a power producer will be able to enforce such penalties on the DISCOMs is another question given the
dominance of the government owned procurers under the terms of the PPAs.

Having said the above, the government has also attempted to focus on measures to increase grid flexibility to
improve renewable energy penetration such as increasing flexibility of coal-based power plants, enlarging
geographic and electrical balancing areas, expanding transmission in strategic locations, and installing grid-scale
storage systems. Grid management techniques are also being contemplated by introducing better forecasting and
scheduling mechanisms and deviation settlement mechanisms across states.

We hope you have enjoyed reading our manual. For further information please reach out to:

Sujjain Talwar – Partner Aakanksha Joshi –Partner Megha Agarwal- Associate Partner
E: sujjaintalwar@ elp-in.com E: [email protected] E: [email protected]
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