Jindal Power Limited vs ICRA Limited

,

Mukta Gupta, J",

The hearing has been conducted through Video Conferencing.,

Plaintiff Jindal Power Limited (in short “JPLâ€) has filed the present suit against ICRA Limited, defendant herein, a credit rating agency inter",

alia praying for a decree of declaration, declaring the Credit Rating Rationales dated 24th April, 2020 and 30th April, 2020 passed by the defendant or",

any other similar credit rating rationale downgrading the plaintiffâ€s credit rating from BBB+ (stable outlook) to BBB (negative outlook) as null, void,",

unenforceable and ineffective and also seeks decree of mandatory injunction directing the defendant to withdraw the said credit rating rationales from,

the physical as well as electronic records of the defendant including on the world wide web. By the application under Order XXXIX Rule 1 and 2,

CPC the plaintiff seeks an interim injunction in terms of prayers made in the suit.,

The present suit and the application came up before this Court on 13th May, 2020 when summons in the suit were issued returnable before the",

learned Joint Register for 15th July, 2020 and in the application notice was issued returnable for 19th May, 2020.",

On 19th May, 2020 learned counsel for the defendant entered appearance and stated that he had already prepared the reply and filed the same and",

liberty was granted to the learned counsel for the plaintiff to file rejoinder and the application was listed on 22nd May, 2020. During the course of",

arguments learned counsels for the parties agreed that even in the suit the parties have to lead no further evidence except the documents filed and,

since the arguments in the suit would also be based on the documents filed by the parties, the arguments be heard for disposal of the suit. Thus, after",

hearing learned counsels for the parties on various dates the judgment in the suit and application was reserved on 19th June, 2020.",

Case of the plaintiff is that the plaintiff and the defendant entered into an agreement dated 15th June, 2016 qua the credit rating of the plaintiff",

company. Thereafter the defendant was carrying out the credit rating of the plaintiff company and was bound to follow the SEBI (Credit Rating,

Agencies) Regulations, 1999 (in short the CRA Regulations). Despite the fact that all the parameters for the purposes of rating the plaintiff company,",

were same in the present year, as the preceding year, the defendant vide its communication dated 24th April, 2020 intimated to the plaintiff its proposal",

to downgrade the credit rating from BBB+ to BBB. Plaintiff objected to the same and filed its objections on 26th April, 2020 whereafter the defendant",

vide its letter dated 30th April, 2020 communicated that it has reviewed the credit rating of the plaintiff company and is maintaining the same at BBB.",

The defendant also published the downgraded credit rating of the company on its website.,

Challenging the two letters of the defendant dated 24th April and 30th April, 2020, learned counsel for the plaintiff contends that the same are ex-",

facie wrong and contrary to the agreement between the parties have been uploaded on the website of the defendant. The credit rating of a party does,

not address any other risk including liquidity risk, market value risk or price volatility. The credit rating is only for the purposes whether the company is",

in a position to clear its debts. A perusal of the parameters of the last financial year as compared to the present financial year would show that the,

long term fund based term loans for the financial year 2020 ending is the same as financial year 2019, that is, Rs. 6,863.94 crores. The long term fund",

based cash credit, long term non-fund based, short term fund based and unallocated instrumentsâ€​ value also remain the same. The total bank facilities",

of the plaintiff company along with the non-convertible debentures remain the same. As a matter of fact, the current rated amount has reduced from",

Rs. 6,863.94 Crores to Rs. 6,443.80 crores and the non-convertible debentures from Rs. 335.00 crores to Rs. 56.80 crores as is noted in the letter of",

the defendant dated 30th April, 2020. So the two changes are in favour of the plaintiff and there is no negative rationale permitting downgrading of the",

rating.,

The main business of the plaintiff is with Tamil Nadu Generation and Distribution Corporation Limited (in short “TANGEDCOâ€). The major,

reason why the credit rating of the plaintiff company has been shown in the negative by the defendant in its letter dated 30th April, 2020 is that since",

TANGEDCO is stressed, the outstanding dues to be received by the plaintiff company are uncertain. Learned counsel for the plaintiff submits that",

TANGEDCO is a government concern and thus there can be no uncertainty to receive the outstanding dues. The plaintiff has a letter of credit in its,

against TANGEDCO for a sum of Rs. 120 crores and merely because the plaintiff has presently not invoked the letter of credit it cannot be held that,

the receiving of the outstanding dues by the plaintiff from TANGEDCO is uncertain.,

Referring to Clause-G (i) and (ii) of the agreement dated 15th June, 2016 between the parties, learned counsel for the plaintiff stated that once the",

plaintiff protested to the downgrading of the credit rating, the defendant could not have published the same on its website. The plea of the defendant",

that sub-clause (i) of Clause-G of the agreement between the parties only related to the initial rating and not the subsequent ones is palpably incorrect,

and without any basis. A perusal of sub-clauses (i) and (ii) of Clause-G brings out a distinction between the right of publication and the right of,

disclosure.,

Learned counsel for JPL further submits that ICRA has perversely and irrationally utilized the negative effect of the previous ratings and has added,

COVID-19 as a reason to downgrade the credit rating for this year ignoring the improvements and the positive aspects of JPLâ€s situation such as,

even during the national lock down when no industry was functional JPLâ€s industry was fully functional and that the financial exposure of JPL in the,

previous year has come down drastically for this year. While arriving at a subjective satisfaction of JPLâ€s rating, ICRA has not adopted an objective",

criteria nor was ICRAâ€s action transparent. ICRA by citing COVID-19 which is irrelevant in the case of JPL as JPL is providing essential services,",

downgraded the rating. Reliance is placed on the decision reported as 2016 (7) SCC 703 Cellular Operators Association of India vs. TRA Iand the,

decision of the Bombay High Court Standard Retail Pvt. Ltd. vs. M/s G.S. Global Corp. & Ors., Commercial Arbitration Petition (L) No.404/2017",

decided on 8th April, 2020).",

Learned counsel for the defendant/ICRA countering the arguments of learned counsel for the plaintiff contends that ICRA is a credit rating,

agency duly registered with the Securities and Exchange Board of India (SEBI) and accredited as external credit assessment institution by Reserve,

Bank of India (RBI). Thus even if the relationship between JPL and ICRA is based on a contract and ICRA may not be a statutory body however, it",

is governed by CRA Regulations and various circulars issued from time to time by SEBI and RBI.,

It is further contended that a rating given by any rating agency is an independent opinion based on the likelihood of the issuer to reimburse the,

principal and pay the interest on its debt obligations on the due dates in the future. Though rating is in the form of standardized symbols but the same,

has to be read in conjunction with the rating rational that is correspondingly published. Further an outlook is provided with the rating symbol which,

indicates the potential/possible direction of the ratings over average time on the basis of foreseen development prospects. To formulate the opinion the,

analyst and the Rating Committee members are required to consider various factors, which include the credit strengths and credit challenges. The",

rating process requires a balance of publishing timely ratings that are predictive of an issuerâ€s credit profile while avoiding precipitous ratings that are,

prone to significant reversals and lead to volatile and erratic ratings. Only after balancing the conflicting factors, the rating committee members who",

are independent professionals render their opinion based on their wisdom, knowledge and past experience and expertise, as a result of which the",

element of prognosis is inherent in a rating. Even the highest rated instrument carries certain degree of credit risks. Thus, a credit rating is a predictive",

opinion, dependent on a subjective and discretionary weighing of complex factors within an established methodology. Though learned counsel for JPL",

argues that in terms of Regulation 21 read with Regulation 24(3) and (4) assignment of a rating is a decision of the Rating Committee, however, it is",

nothing more than an opinion as defined under CRA Regulation 2(q).,

It is contended that ICRA has followed the rating process in compliance with the regulations and relevant circulars issued by SEBI from time to,

time and has not violated any of the rating methodologies or the CRA Regulations or the Master Circular. ICRA has been rating the instruments/debt,

facilities of JPL since 2008. Under the rating agreement entered into between JPL and ICRA in 2016 based on the initial rating JPL has already,

availed/raised funds and thus till the funds have been utilized and not repaid by JPL, ICRA would be bound to keep periodic watch/surveillance.",

The Rating Committee after due deliberation accorded the rating on 24th April, 2020 and on the objection of JPL received, the same was put up",

before the Review Committee which comprises of different members/experts, who also decided to maintain the rating at BBB and informed the",

decision to JPL on 30th April, 2020. Subsequent to the institution of the present suit JPL sought withdrawal of the ratings of the Non-convertible",

Debentures (NCDs) since they have been repaid. Consequently, ICRA withdrew the said ratings and shared the draft rational for withdrawal with",

JPL on 19th May, 2020. ICRA also observed that it did not have information to suggest that the credit risk has changed since the time the rating was",

last reviewed, since no protest was received from JPL subsequent to this withdrawal qua NCDs whereby the rating rational dated 30th April, 2020",

was reiterated.,

On the contentions of the parties, following issues arise for consideration before this Court:",

(i) Whether the defendant-ICRA has a right to publish the rating despite being objected to by the plaintiff/JPL?,

(ii) What are the factors required to be considered by ICRA while deciding the rating and whether those factors have been considered by ICRA or,

the finding of ICRA is based on erroneous considerations?,

(iii) In case, the finding of ICRA is based on erroneous factors, whether this Court can grant a mandatory injunction against ICRA directing it to",

review its ratings?,

Findings:,

Before proceeding with the matter it would be appropriate to note the relevant portions of the agreement dated 15th June, 2016 arrived at between",

the plaintiff and defendant qua the credit rating:,

“TERMS OF RATING AGREEMENT,

A. Definitions,

i. “Agreement†refers to the written terms and conditions of this agreement, rating requisition form and all schedules and annexures,",

each as may be amended, supplemented or modified from time to time.",

ii. “Credit Rating†or “Rating†refers to evaluating the capabilities of a company to timely meets its debt obligations expressed in,

the form of standard symbols or in any other standardized manner, assigned by ICRA and used by your Company, to comply with a",

requirement specified by the SEBI (Credit Rating Agencies) Regulations, 1999 and relevant guidelines & circulars issued by Reserve Bank",

of India, from time to time. A Credit Rating does not address any other risk, including liquidity risk, market value risk, or price volatility.",

Any Rating must be construed solely as a statement of opinion and not a statement of fact. A Credit Rating is not an offer, invitation,",

inducement or recommendation to purchase, sell or hold any securities or otherwise deal or act in relation to any issue or Bank",

Facility(ies), to which this Agreement relates or otherwise in connection with any associated transaction, entity, or matter. References in this",

Agreement to “rating†or “credit rating†also encompass any revalidation of Rating and the terms of this Agreement will apply to,

any revalidation Rating.,

iii. “Rating Fee†refers to the initial fee payable in advance by your Company to ICRA in consideration for the Rating to be assigned by,

ICRA to the Bank Facility and shall be exclusive of the applicable service tax payable thereon.,

iv. “Surveillance Fee†refers to the fee payable in advance by your Company to ICRA for the continuous monitoring of the Rating by,

ICRA during the lifetime of the Bank Facility and shall be exclusive of the applicable service tax payable thereon.,

B. Scope of Work and Rating Fee,

I. ICRA shall, after due consideration, assign a Rating (accompanied, if necessary, by an outlook and/or other indicators) to the said Bank",

Facility of your Company.,

II. Upon acceptance of the Rating or notification of use of the Rating by your Company to ICRA in the manner set out in clause D (1) below,",

ICRA shall subject to clause F of this Agreement, keep the Rating under surveillance during the lifetime of the Bank Facility that is such time",

that any amount is outstanding against it or the sanction remains valid, whichever is earlier;",

III. The initial non-refundable fee payable by your Company to ICRA for the enhancement is Rs. 9,77,500. This amount represents the sum",

of the following: Rating Fee of Rs. 8,50,000; service tax of Rs. 1,27,500. The annual Surveillance Fee for the enhancement from the second",

year onwards will be Rs, 4,25,000, exclusive of applicable rates of service tax. The Surveillance Fee, which becomes chargeable after 12",

(twelve) months from the date of assignment of the initial Rating, will be payable in advance. It is hereby clarified that notwithstanding your",

non-acceptance of the Rating or failure to notify ICRA of your acceptance/non-acceptance of the Rating, any use of the Rating by your",

Company, in any manner whatsoever, shall constitute acceptance of such Rating and your Company shall be obligated to pay Surveillance",

Fee after ICRA becomes aware of the use of the Rating. Your Company shall also reimburse ICRA all travel and out-of-pocket expenses that,

it incurs in connection with the Rating process, both initially and during surveillance. Rating Fee/Surveillance Fee shall be paid by your",

Company by way of cheque or demand draft (DD) or transfer through electronic medium in favour of ICRA Limited. All Fees as mentioned,

herein shall not be refundable under any circumstances. ICRA reserves the right to revise the Rating Fee/ Surveillance Fee payable by you,

under this Agreement subject to maximum of 0.05% of the Rating Fee/Surveillance Fee.,

C. Disclaimer,

I. Disclaimer of advice: We are not: (a) providing an audit opinion any financial, legal, tax, advisory, consultative or business services; or",

(b) advising on structuring, drafting or negotiating transaction documentation. You should take independent legal, tax, financial and other",

advice when structuring, negotiating and documenting transactions. You agree that neither a Rating nor any discussions with ICRA's",

analysts constitutes advice on business operations.,

II. Disclaimer of warranties: All information, including the Ratings and other communications, provided by ICRA relating to you, this",

Agreement, the facility or the Transaction is provided “as is†and without representation or warranty of any kind in particular, neither",

ICRA nor its agents make any representation or warranty, express or implied, as to the accuracy, timeliness, completeness, merchantability",

or fitness for any particular purpose of any such information or communication.,

III. We are an independent rating agency and may determine, apply and amend our methodologies and Rating in our sole discretion from",

time to time.,

D. Acceptance/non-acceptance and use of Rating,

I. After ICRA has informed your Company of the Rating it has assigned, your Company shall communicate its decision to ICRA regarding its",

acceptance of the Rating in writing, and intended use of the Rating, in any manner, within 7 (seven) days of the assignment of the Rating. In",

the event your Company fails to notify ICRA of its decision regarding its acceptance/non-acceptance of the Rating, such failure shall be",

treated by ICRA as non acceptance of the Rating. Notwithstanding the foregoing, any use by you of the Rating shall be deemed acceptance",

of the Rating.,

II. During such 7 (seven) days acceptance time period, and thereafter if the Rating is not accepted by your Company within the stipulated",

time, such Rating shall remain confidential subject to the terms of this Agreement, including without limitation, clause N (Applicant",

Confidentiality for Unpublished ratings). On request, an unaccepted Rating may be converted to an accepted Rating, provided such request",

is made by your Company within 2 (two) months from the date ICRA first communicated its Rating decision to you. However, before such",

conversion is made, the Rating initially assigned may have to undergo a revalidation process. No additional fee would be charged to your",

Company for the conversion, unless the Rating initially assigned needs to undergo a revalidation process. The Rating initially assigned",

needs to undergo a revalidation process if either (i) the size of the Bank Facility or structure of the Bank Facility has changed before the,

Rating has been accepted by your Company, or (ii) the request for conversion is received by ICRA after 2 (two) months from the date that",

ICRA first communicated its Rating decision to you.,

III. In case a Rating is not accepted by your Company within the stipulated time, or in case of failure of your Company to notify its",

acceptance or non-acceptance or use of the Rating to ICRA as set out in clause D (I) or clause K III (iv), as the case may be, the assigned",

Rating shall not be subject to surveillance and ICRA shall not be responsible for the continuous monitoring/surveillance of the assigned,

Rating.,

IV. You will only use each requested Rating for its intended purpose and will not, for example, represent an issuer rating as a securities",

rating.,

E. Tenure of Agreement,

I. This Agreement shall remain valid till the earlier of the date that the Rating assigned is withdrawn or the date that there are no longer any,

obligations outstanding under the Bank Facility. This Agreement cannot be terminated by your Company once it has accepted the Rating.,

II. Notwithstanding the clause E (I) above, the provisions of clauses L (Warranty), M (Confidentiality); N (Applicant Confidentiality",

Unpublished ratings), O (Indemnification), P (Limitation of Liability), Q (Warranties with respect to information provided to ICRA), R (Use",

of information) and U (IV) shall survive any termination of the Agreement.,

F. Changes in Rating,

I. Subject to the terms and conditions of this Agreement, ICRA will keep the Rating under surveillance until the earlier of the date that the",

Rating is withdrawn or the date that there are no longer any obligations outstanding under the Bank Facility. Following surveillance, ICRA",

may reaffirm, upgrade, downgrade, suspend, or withdraw the Rating; further, it may assign an outlook, or change or withdraw the outlook",

previously assigned; it may also place the Rating (previously assigned) on rating watch (with or without specified implications) or remove it,

from rating watch.,

II. If at any stage during the lifetime of the Bank Facility, ICRA feels it is unable to carry out continuous monitoring of the Rating(s)",

assigned because of a lack of cooperation by your Company, ICRA will be entitled to carry out a review of the Rating(s) outstanding on the",

basis of the best available information. Further, ICRA shall also be entitled to disclose such Rating(s) or changes in the Rating(s) along with",

the rating rationale(s) in any manner and to anyone it may decide without any reference to your Company.,

III. At any stage, failure on your part to furnish such information as ICRA may require from time to time, or failure to properly answer",

queries in a timely manner that may be raised by ICRA or failure on your part to pay Surveillance Fee as and when due, could result in",

ICRA suspending, withdrawing, or revising the Rating assigned.",

IV. At any point, if ICRA is of the opinion that the circumstances then prevailing justify change, suspension, or withdrawal of the Rating, or",

warrant that the Rating be maintained at the existing level, it shall have the right to take the appropriate rating action, and such a decision",

shall be final and binding on your Company.,

V. The Rating is specific to the terms and conditions of the Bank Facility to be rated as indicated to ICRA by you and any change in the,

terms or size of the same would require revalidation of the Ratings which could result in a change in the Ratings previously assigned.,

G. Dissemination of rating,

I. ICRA shall communicate its rating decision in terms of assignment or change in the Rating to you in writing. The right to accept and use,

the initial Rating will rest with your Company. However, once you have accepted and/or used the Rating assigned, ICRA shall have the right",

to publish the Rating or any change or suspension or withdrawal of the Rating, the rating rationale, and such other relevant information",

employing its regular methods of dissemination.,

II. ICRA reserves the right to disclose the Rating, whether accepted or not, as and when required by the appropriate government, statutory,",

regulatory, judicial and quasi-judicial authorities, auditors, bodies and/or stock exchanges where such disclosure is permitted or required",

by or under any law in force. In case of allegation of misstatement by your Company, ICRA shall have the right to disclose the assigned",

Rating in public documents and/or publicity material and/or other forum.,

H. Revalidation of the Rating,

I. The rating assigned to the Bank Facility of your Company shall require revalidation if there is any change in the size or structure of the,

Bank Facility.,

I. Suspension/withdrawal of rating,

I. ICRA shall suspend/withdraw the assigned Rating in accordance with its suspension/withdrawal policy in force.,

II. Suspension may be revoked on receipt of renewal request from your Company.,

III. Subsequent revival of the suspended rating will not be subject to any acceptance.,

M. Confidentiality,

I. ICRA's confidentiality: ""Confidential Information"" means any information regarding your Company or the Bank Facility rated by ICRA",

under this Agreement that ICRA receives from you, or your respective group companies or authorized agents in connection with ICRA's",

services accompanied by a written notice specifying the confidential nature of such information. The term ""Confidential Information"" does",

not, however, include (i) information that is or becomes publicly known other than by an act of ICRA in contravention of this Agreement;",

(ii)information in our possession prior to the execution of this Agreement; (iii) information that becomes available to ICRA from a third,

party; (iv) information developed independently by ICRA; (v) information that has been aggregated or transformed in such a way that it is,

no longer identifiable as relating to any individual; or (vi) information that is approved in writing by you for public disclosure.,

ICRA shall retain any Confidential Information and not disclose the same to third parties outside of ICRA, but such retained Confidential",

Information will remain subject to the confidentiality obligations contained in the Agreement.,

We may, however: (i) disclose Confidential Information as required by law, regulation, judicial or governmental order, subpoena or other",

legal process or requested or required by any governmental or regulatory authority including any self-regulatory organization, securities",

market or exchange; (ii) publish or otherwise make publicly available (including by press release) any rating(s) or any other opinion,

regarding a particular Bank Facility, entity or transaction that incorporates Confidential Information; and (iii) disseminate aggregated or",

transformed information as permitted by the section titled """"Use of information above. You confirm that, to the best of your knowledge,",

there are no third parties whose rights would be adversely affected by way of such publication or dissemination, ICRA reserves the right to",

use, publish, disseminate, or license others to use, publish or disseminate any information provided by you or your agents or advisors not",

deemed Confidential Information.,

II. Applicant confidentiality: You agree to keep the provisions of this Agreement and any other non-public information with respect to the,

related rating(s) disclosed by ICRA to you confidential and not to disclose such provisions or information to any person or entity except:(i),

to your group companies, officers, directors, employees and agents; and (ii) as required by applicable law, or at the request of any",

governmental authority having jurisdiction. You will be responsible for any failure by any of your group companies, officers, directors,",

employees, or agents to comply with these confidentiality restrictions. If ICRA provides a revalidation that has not been publicly disclosed",

by ICRA, such revalidation must be kept strictly confidential, and should not be disclosed to any person or entity without ICRA's prior",

written consent.,

N. Applicant Confidentiality for Unpublished ratings,

The following additional confidentiality provisions are applicable to any unpublished rating or other opinion delivered by ICRA hereunder,",

i.e., any rating or other opinion not disclosed by ICRA to the general public at the time of delivery by ICRA, including, without limitation,",

any Rating during the 7 (seven) days acceptance period and thereafter in the event that the Company does not accept the Rating.,

For the purpose of this Agreement, ""ICRA's Confidential Information"" means any non-public information that ICRA discloses to either of :",

(i) you or any of your agents; or (ii) if different, any relevant entity on which a rating is requested or whose issuances are requested to be",

rated under this Agreement (each, a ""Rated Entity"") or its agents. ICRA's Confidential Information includes any rating and/or other opinion",

we deliver in connection with this Agreement that we do not also disclose to the general public at the time of delivery,

You agree to keep ICRA's Confidential Information confidential and treat it accordingly. You must refrain from direct or indirect,

communication or disclosure of ICRA's Confidential Information to any persons(s) other than: (i) your employees, officers and directors and",

those of any entities that are wholly owned, directly or indirectly, by your ultimate parent, whose functions reasonably require them to have",

knowledge of ICRA's Confidential Information in order to fulfill their professional duties as agents of the Rated Entity; and (ii) your,

financial and legal advisors, in their capacity as such with a need to know, for information purposes only and to whom we owe no duty or",

responsibility. You will ensure that all above persons listed in sub clauses 9i) and 9ii) comply with all of the provisions in this Agreement,

and any breach of the same will be deemed to be a breach of this Agreement by you.,

(Emphasis supplied),

Issue No.(i):,

To canvass that ICRA could not have published the rating learned counsel for the JPL states that ICRA is not a statutory body and thus, not a",

regulator of the JPL. The relationship between JPL and ICRA is based on an agreement and thus, ICRA is required to abide by the terms of the",

agreement. Grievance of the JPL is that while carrying out the ratings, ICRA assumed the role of a forensic auditor, which it is not vested with.",

Despite JPL having objected to the proposed rating rationale of ICRA dated 24th April, 2020 by a detailed representation dated 26nd April, 2020,",

ICRA sent a mail on 30th April, 2020 informing that it was maintaining the rating “BBBâ€, thus downgrading the rating of JPL. Clause B(II) of the",

agreement between the parties provides that upon acceptance of the rating or notification of use of rating by JPL to ICRA in the manner set out in,

Clause D(I), ICRA shall, subject to Clause F of the agreement, keep the rating under surveillance during the life time of bank facility.",

Learned counsel for the JPL contends that JPL having not accepted the credit rating, ICRA was prohibited from publishing the same in view of",

Clause G of the Credit Rating Agreement. Clause G(I) of the agreement clearly stipulates that only on acceptance of the rating, the same can be",

published. Therefore, acceptance of the credit rating by JPL is a sine qua non for ICRA to publish the rating. Even on 30th April, 2020, JPL refused to",

accept the rating and hence, the same could not have been published. In case acceptance by JPL is not treated as a pre-condition for publishing the",

rating by ICRA, then Clause G(I) of the agreement between the parties would be rendered nugatory. Clause G(II) stipulates that ICRA has a right to",

publish the rating as and when required by government authorities or any other statutory authority. The impugned publication has not been done by,

ICRA pursuant to the requirement of any government or statutory authority. By publishing the credit rating, ICRA has violated Clauses M and N of",

the agreement providing for confidentiality. Reliance of ICRA upon Clause D to defend its action or to plead credit rating binding on JPL is totally,

misplaced as Clause D of the agreement is functioned upon “acceptance/non-acceptance of the credit rating†and “use of the credit rating by,

the clientâ€. On a harmonious reading of Clauses D and G of the agreement, the only conclusion that can be arrived at is that ICRA could conduct its",

rating exercise any time and upon declaring its credit rating, it was upon the JPL to accept or reject the same, which JPL specifically refused on 30th",

April, 2020. Consequently, ICRA was not bound to publish the rating after the same had been refused to be accepted by JPL on 30th April, 2020.",

Reliance is placed on the decisions in (1973) 2 SCC 825 Delhi Development Authority Vs. Durga Chand Kaushis hand (1991) 1 SCC 412,",

M.O.H.Udman and Ors. Vs. M.O.H. Aslam.,

Refuting the arguments of learned counsel for JPL, learned counsel for ICRA submits that on a plain reading of the rating agreement, in",

conjunction with CRA regime as also the RBI circular, the only unambiguous conclusion that can be arrived at is that the publication of the rating",

under surveillance is not subject to the acceptance of JPL. Contingent on the circumstances and consideration of the factors which involve annulment,

of prognosis, ICRA has a right to change the ratings and consequentially bound to publish irrespective of JPLâ€s non-acceptance. It is contended that",

neither the CRA regime nor the circulars of SEBI/RBI mandate the consent of the issuer for publication of the rating action under surveillance. In the,

event, the initial rating is not accepted by issuer and not used to raise funds, the rating rationale cannot be disseminated to the beneficiaries, hence,",

there can be no requirement to disseminate any changes in the same as well. However, if the initial rating is accepted by the issuer, the same is",

disseminated to the beneficiaries and consequentially, if there is any change in the rating, the same would also be required to be disseminated. Thus,",

the contention of the learned counsel for ICRA is that only in the first/initial rating, no publication will follow subsequent to the objection of the issuer,",

however, once the rating is published, then, the issuer would have no say in the subsequent ratings as the same affects the rights of the beneficiaries",

who have invested pursuant to the credit ratings initially assigned by ICRA.,

Learned counsel for defendant further refers to Regulation 15(2) in this regard which mentions about changes in ratings. Additionally, Regulation",

16 also mentions that all published ratings are subject to surveillance, meaning thereby “accepted†initial ratings which are published, have to be",

monitoredâ€. The CRA regulations and the Master Circular provides for option of acceptance by the issuer at the time of initial rating but not during,

the course of surveillance. Even as per Clauses 3.3.6 and 3.3.9 of the Master Circular, surveillance of the rating is critical and dissemination of the",

rationale has to be completed within the specified time limit. Further, any delay in the time lines to disclose on the website affects the beneficiaries.",

Though time for acceptance by the issuer is provided in case of initial rating, however, no such time is provided in case of surveillance which",

mandates that the rating is to be disseminated within five working days of the decision of the rating committee. Thus, from the Master Circular of the",

SEBI itself, it is evident that the acceptance of the issuer is not required for dissemination of rationale for cases under surveillance. In the event of",

non-publication of the rating, the same may amount to an indicative rating which is barred by SEBI. The Master Circular of the SEBI further require",

publication of the rating irrespective of the non-cooperation of the issuer including non-payment of fee in terms of Regulation 16(3) read with Clauses,

2.9, 3.3.3 and 3.3.7 of the Master Circular. Publication of the credit rating and rationale by the credit rating agency in a timely manner plays a critical",

role in protection of the interests of the investors in security markets. Reliance is placed on the decision of Bombay High Court in E.C.L. Finance,

Limited Vs. ICRA Ltd. and Another.,

It is contended by learned counsel for the defendant that as per the CRA regulations and the circulars issued thereunder, ICRA as a responsible",

institute, is expected to pro-actively track all important changes which make an independent assessment and promptly disseminate timely and accurate",

ratings. The primary role of a credit rating agency is to bridge the information and raise symmetry between the company and shareholders. While,

extending loans on credit facilities, banks heavily rely upon the credit ratings given by the agencies including ICRA and in case the revised ratings",

pursuant to the surveillance is not published, the user of the rating will erroneously be relying upon previous rating which may result in loss to the said",

party. Ratings once published cannot be withdrawn without a non objection certificate from the concerned bank and cannot be suspended. Reference,

is made to Clause 3.3 of the Master Circular. After following the procedures prescribed under the agreement and Master Circular of the SEBI,",

publication is carried out in terms of Clauses D, F and G of the rating agreement. The dissemination of the rating through ICRAâ€s website has been",

prescribed by the SEBI under Clause 2.5 and 3.3.1 of the Master Circular. Reliance is placed on the decision of Madras High Court in (2001) 1 BC,

52 First Leasing Company of India Vs. ICRA Ltd.,

A perusal of the agreement between JPL and ICRA clearly indicates that a rating is sought by a party from the credit rating agency to avail a,

bank facility. Only on the credit rating being awarded the credit facility is granted and since the bank takes into consideration the opinion of the credit,

rating agency while granting the credit facility, the agency is duty bound to fairly continue to assess the credit rating of the party which is called",

surveillance rating"" during the lifetime of the credit facility. This fact is further clarified from clauseâ€"B sub-clause (iii) which states that",

notwithstanding JPLâ€s non-acceptance of the rating or failure to notify ICRA of its acceptance/non-acceptance, if JPL uses the rating for the",

purposes of availing a bank facility, the rating as awarded by ICRA would be deemed to have been accepted and JPL would be obligated to pay the",

surveillance fee.,

Further, Clauseâ€"G (I) provides that ICRA is required to communicate to JPL its rating decisions in terms of the assignment or change in the",

rating in writing and whether to accept the same and use the initial rating will be upon the company. In case there is no protest and the rating is,

accepted, ICRA has a right to publish the rating or any change or suspension or withdrawal of the rating on its regular methods of dissemination.",

ICRA further reserves its right to disclose the rating, whether or not accepted by JPL as and when required by the government, statutory, regulatory",

or judicial or quasi judicial authorities etc.,

Case of the ICRA is that it is only that only the initial rating can be accepted or objected to by JPL and subsequent rating cannot be objected to,",

once the initial rating is utilized to avail the credit facility. However, even then it has been reviewed by a Review Committee comprising of other",

persons pursuant to the representation of JPL dated 26th April, 2020 and only after the Review Committee decided to maintain the downgraded rating",

that the letter dated 30th April, 2020 was communicated to JPL and the rating put up on the website.",

For the purposes of ascertaining whether defendant has followed the CRA Regulations, it would be relevant to note the relevant provisions thereof",

as under:,

Monitoring of ratings,

[(1) Every credit rating agency shall, during the lifetime of securities rated by it continuously monitor the rating of such securities,",

unless the rating is withdrawn, subject to the provisions of regulation 16(3).]",

(2) Every credit rating agency shall disseminate information regarding newly assigned ratings, and changes in earlier rating promptly",

through press releases and websites, and, in the case of securities issued by listed companies, such information shall also be provided",

simultaneously to the concerned regional stock exchange and to all the stock exchanges where the said securities are listed.,

Procedure for review of rating,

16 [(1) Every credit rating agency shall carry out periodic reviews of all published ratings during the lifetime of the securities, unless the",

rating is withdrawn, subject to the provisions of regulation 16(3).]",

[(2) If the client does not co-operate with the credit rating agency so as to enable the credit rating agency to comply with its obligations,

under regulation 15 of these regulations, the credit rating agency shall carry out the review on the basis of the best available information",

or in the manner as specified by the Board from time to time.,

Provided that if owing to such lack of co-operation, a rating has been based on the best available information, the credit rating agency",

shall disclose to the investors the fact that the rating is so based.],

[(3) A credit rating agency shall not withdraw a rating so long as the obligations under the security rated by it are outstanding, except",

where the company whose security is rated is wound up or merged or amalgamated with another company, or as may be specified by the",

Board from time to time.],

(Emphasis Supplied),

A perusal of Regulations 15 and 16 which relates to the monitoring of the ratings and not initial rating reveals that the Credit Rating Agency is,

mandated to continuously monitor the rating unless the same is withdrawn, subject to the regulation 16(3) and the Agency is also mandated to",

disseminate the said information regarding newly assigned ratings through press releases and websites during the lifetime of securities related.,

Regulation 16 further mandates periodic reviews of all published ratings during the lifetime of the securities, unless the rating is withdrawn. Thus if the",

security subsists and is pending all published ratings are bound to be reviewed periodically even if the client does not cooperate with the Credit Rating,

Agency and complies with its regulation. Further the Credit Rating Agency cannot withdraw a rating as long as the obligations under the security rated,

are outstanding unless the company whose security is rated is wound up or merged or amalgamated with the another company or as may be specified,

by SEBI from time to time.,

Further the Code of Conduct i.e. IOSCO Credit Rating Agency Code defines “Credit rating action†as “to determine an initial credit rating,",

an upgrade of an existing credit rating, a downgrade of an existing credit rating (including to a default category), an affirmation of an existing credit",

rating, or a withdrawal of a credit ratingâ€. Thus after the initial credit rating is assigned, the action of the credit rating agency in the form of credit",

rating action continues by upgrading or downgrading or maintaining the existing credit rating or withdrawal of the credit rating.,

In this regard it would also be relevant to note clauses 2.9, 3.3.3, 3.3.6, 3.3.7 and 3.3.9 of the Master Circular No.SEBI/ HO/ MIRSD/ DOP2/",

CIR/P/2018/76 dated 2nd May, 2018 issued by SEBI which provide as under:",

2.9 Policy in respect of non-co-operation by the issuer 22,

2.9.1. In case of non-cooperation by the issuer (such as not providing information required for rating, non-payment of fees for conducting",

surveillance), in line with the existing Regulations, the CRA shall continue to review the instrument, on an ongoing basis throughout the",

instrumentâ€s lifetime, on the basis of best available information, in accordance with the rating process and policies set forth in its",

Operations Manual/ Internal governing document.,

2.9.2. In such cases the credit rating symbol shall be accompanied by the suffix “ISSUER NOT COOPERATING†in the same font size.,

The suffix shall be explained below and shall read as “Issuer did not cooperate; based on best available informationâ€​.23,

2.9.3. The rating action(s) in such cases shall be promptly disclosed through press release(s), which shall mention, at least, the following:",

a. Date of Press Release,

b. Details of Instrument,

c. Rating Action and Indicative/updated rating based on best available information,

d. A brief write-up on the non-co-operation by the Issuer/ Borrower and the consistent follow-up done by the CRA for getting the,

information.,

e. Hyperlink/ reference to the applicable ""Criteria""",

f. Limitations regarding information availability (shall have a suitable caveat cautioning the investors/lenders /public),

g. Rating History for last three years,

h. Name and contact details of the Rating,

Analyst(s),

2.9.4. In case an issuer, having not co-operated with a CRA in the past, approaches another CRA for rating, the new CRA shall, in its Press",

Release, disclose the aspect of non-co-operation.",

3.3 Continuous Disclosures and Reporting,

3.3.1 xxx xxx,

Scenario,Timelines â€" immediately but not later than

Acceptance of Rating/ Appeal for Review of Rating

by the Issuer","5 working days of communication of rating by the

CRA to the Issuer

Disclosure of rating as non-accepted Rating,"In case rating is not accepted by the Issuer within a

month of communication of rating by the CRA to the

Issuer, the same shall be disclosed as Non-Accepted

Rating on the CRA‟s website

Dissemination of Press Release on CRA‟s website

and intimation of same to Stock Exchange/

Debenture Trustee","2 working days of acceptance of Rating by the

Issuer

issuer, the same will be disseminated by press release on Credit Rating Agencyâ€s website and intimation to the Stock Exchange/Debenture Trustees",

within two days. However, in respect to periodic surveillance there is no provision of a period of one month from the date of communication wherein",

the issuer has to accept or not accept the rating and within five working days of the Rating Committee Meeting the rating has to be disseminated by,

press release on Credit Rating Agencyâ€s website and duly intimated to stock exchange/debenture trustees. Clause 3.3.9 also provides that despite,

delay where credit rating is reviewed but not completed within the due date on completion thereof the same will be promptly disclosed on the website.,

Thus the combined reading of SEBI CRA Regulations and RBI Master Circular clearly depict that as far as the initial rating is concerned, if the",

same is not accepted, then the same will not be published by the Credit Rating Agency however, once an initial credit rating is accepted and published",

based whereon a party seeks financial facility, during the pendency of the said financial facility, the Credit Rating Agency is mandated to conduct",

periodic surveillance and even if subsequent rating opined by the Credit Rating Agency during the period of surveillance is not accepted by the party,",

the same will still be disseminated by press release on the website of the Credit Rating Agency as also intimated to the Stock Exchange/Debenture,

Trustees.,

The Madras High Court in First Leasing Company of India vs. ICRA (supra) acknowledging the right of ICRA to publish the rating in case of,

change held:,

The respondent is required to disseminate information relating to the ratings and changes to earlier ratings promptly through press,

releases and websites, etc.; in order to provide timely information to the investors as well as the prospective investors. According to the",

respondent, for this purpose of continuous surveillance throughout the life of the instrument and for regular modes of dissemination to the",

investors, the respondent receives a mandate from its clients requesting for carrying out a credit rating exercise. Through such mandate the",

applicant also acknowledged the right of the respondent to publish the rating and any changes in it. Consequently, the respondent is",

required to give a rationale for the rating assigned to the client who acknowledged that if at any time in the opinion of the respondent,

based on any event or change of event, the rating, assigned to the instrument warrants revision. It is open to the respondent to make such a",

revision and to publish such a review in rating in any manner.,

Learned counsel for JPL relied upon the decision of the Bombay High Court in ECL Finance Limited vs. ICRA (supra) however, in the said",

decision the relief sought by the petitioner therein was that no rating action should take place for three months till Covid-19 pandemic subsides and,

Covid-19 pandemic be not used as a basis for downgrading. The only relief granted by the Bombay High Court was that the petitioners therein were,

permitted to present their case before the next meeting of the Rating Review Committee.,

Reliance of learned counsel for JPL on clauses (M) and (N) of the Rating Agreement between the JPL and ICRA to contend that publication of,

the rational breaches the confidentiality provisions is misconceived. Under clause (M) ICRA is entitled to publish its opinion and if an information is,

used as a part of rating rational, ICRA would be bound to disclose the same. Also JPL has placed on record no material to show that which piece of",

information supplied by JPL was classified as 'confidential' which has been published by ICRA. Further clause (N) does not pertain to the rating,

actions under surveillance and applies to initial rating which if not accepted is unpublished and based thereon no financial facility is raised.,

Learned counsel for JPL further relied upon the decisions reported as 1973 (2) SCC 825 Delhi Development Authority vs. Durga Chand Kaushish,

(supra) and 1991 (1) SCC 412 M.O.H Udman & Ors. vs. M.O.H Aslam (supra) to contend that if two constructions of the document are possible, the",

one which will not render a provision nugatory has to be adopted and that the intention of the parties must be gathered from the language used in the,

contract. As noted above, clause (B) of the agreement between JPL and ICRA clearly defines the scope of work and that once the initial credit rating",

is assigned and accepted, ICRA shall subject to clause (F) keep the rating under surveillance during the lifetime of the bank facility, that is, such time",

that any amount is outstanding against it or the sanction remains valid whichever is earlier. Once based on the credit rating a party seeks a bank,

facility it cannot thereafter want the Credit Rating Agency to not conduct periodic surveillance thereof and in case of a change therein not intimate the,

same to the concerned agency and the parties duly affected by the said Credit Rating. The interpretation as sought to be given by JPL would be,

contrary to the public policy and hence cannot be accepted.,

In view of the discussion aforesaid this Court is of the considered opinion that as per the terms of the agreement between JPL and ICRA as also,

the CRA Regulations, Master Circular of RBI, the Credit Rating Agency, that is, ICRA was entitled to publish the initial rating once accepted, based",

whereon JPL took credit facility and thereafter ICRA is mandated to conduct periodic reviews/surveillance of the credit rating and publish the same in,

the best interest of the provider of the financial facility and the other parties.,

Issue No.2,

Learned counsel for JPL contends that rating awarded by ICRA is not a mere opinion but a decision of the credit rating agency after an objective,

exercise for assessing the credit worthiness of a party is conducted. There are well defined objective parameters required to be followed by all rating,

agencies including the defendant. By terming its deliberations as an opinion ICRA is avoiding scrutiny by this Court. The major rating drivers cited by,

ICRA for downgrading the rating of JPL can be classified in four broad categories, that is, (i) elongated receivables cycle, which results in stretched",

liquidity position; (ii) modest debt-coverage metrics; (iii) elevated debt level; (iv) exposure to power off take and raw material availability. The decision,

of ICRA to downgrade the rating is not only perverse but arbitrary as ICRA has perversely relied upon non-signing of incremental Power Purchase,

Agreements (PPAs) and default in payment of TANGEDCO due to COVID-19 situation.,

Learned counsel for JPL submits that though in the financial year 2020 there was no incremental signing of PPA by JPL however, its existing long",

term PPA of 810 MW continued to be in force. JPL has received timely payments for its invoices beyond August, 2019. Payments for February 2020",

invoices were due on 8th April, 2020 and the payments for March, 2020 were due on 4th May, 2020 for a sum of Rs. 113 crores and Rs. 118 crores",

respectively. Due to COVID-19 situation TANGEDCO, resulting in reduced collection paid 50% of the February, 2020 invoice and verbally requested",

JPL not to enforce the letter of credit. While awarding the credit rating ICRA failed to note the rating drivers in favour of JPL, that is, (i) additional",

income of about 430 crores per year from JSPL by way of interest on loans, w.e.f. the 1st quarter of 2019-2020, which gives a quantum jump to the",

loan serviceability by JPL; (ii) new short term PPA of 200 MW with OPJ Industrial Park at 3.90/kwh; (iii) although repayments increased from Rs.,

497 crores in F.Y.2019 to Rs. 695 crores in F.Y. 2020 and are increasing to more than Rs. 800 crores from F.Y.2021 onwards, plaintiff has already",

served repayments of Rs. 695 crores in F.Y. 2020 which amount would increase to Rs. 800 crores in F.Y. 2021. Although repayment of principal is,

getting increased by Rs. 105 crores in F.Y. 2021 as compared with F.Y. 2020, however, due to repayment of Rs. 695 crores in F.Y. 2020, there will",

be reduced interest outgo by Rs. 75 crores in F.Y. 2021, thus the net increase on account of debt obligation is only by Rs. 30 crores; and (iv) out of",

Rs. 800 crores repayment in F.Y. 2021, and post the second moratorium provided by RBI now the revised repayment for F.Y. 2021 stands at Rs. 583",

crores. The Plaintiff having already paid Rs. 56.8 crores to Templeton Mutual Fund towards NCD repayment, now the balance repayment for the",

F.Y. 2021 is Rs. 526.20 crores.,

Learned counsel for JPL contends that a perusal of the rating drivers would indicate that JPL was in a better position in 2020, than in the year",

2019 and despite being in a better position in the year 2020 the rating of BBB+ of the year 2019 has been downgraded to BBB, that is, from",

“stable†to “negative outlookâ€. Non-convertible debentures of JPL have been in the year 2020 fully paid up. Further ICRA failed to consider,

the letter of TANGEDCO written to JPL stating that it was approaching financial institutions with respect to payment of dues of JPL. Therefore, the",

opinion concerning delay in realization of receivables by JPL was also incorrect. Though ICRA published an article in Financial Express that there is,

bound to be 1% fall in power demand by financial year 2021 due to COVID-19 but still ICRA downgraded the rating on the ground that there is,

already a stress in power sector due to COVID-19. This is also contrary to the fact that consumption of power sector continued even during lockdown,

for the reason the same was an essential service. Reliance is placed by the learned counsel for JPL on the decisions reported as AIR 1967 SC 295,

Barium Chemicals Ltd. vs. Company Law Board ;1974 (2) SCC 687 M.A. Rasheed vs. State of Kerala ,1994 Supp (3) SCC 424 S.Ramachandra",

Raju vs. State of Orissa. and 2001 (2) SCC 305 Bishwanath Prasad Singh vs. State of Bihar.,

Refuting the contentions of learned counsel for JPL, learned counsel for ICRA submits that the relevant factors to be considered to ascertain the",

credit worthiness of JPL were duly considered by ICRA. A credit rating agency is required to keep track of all important changes relating to the client,

companies and monitor closely all relevant factors that may affect the credit worthiness of the issuer and reliance is thus placed on the ICRA,

Regulations Code of Conduct-clause-8; Master Circular of SEBI-clause-2.3.1 and clause 2.3 of IOSCO CRA Code. ICRAâ€s risk analysis,

framework for thermal power producers requires balancing of various complex factors such as (i) business risk drivers, which include operating risk",

such as fuel availability and pricing risk; demand and tariff risk which includes consideration of cost competitiveness; counter-party credit risk;,

competitive position; past track record; and force majeure risk; (ii) industry risk drivers, which includes regulatory risk; (iii) financial risk drivers, which",

includes: adequacy of future cash flows; profitability; leverage and coverage indicators; liquidity and financial flexibility; tenure mismatches and risks,

relating to interest rates and refinancing; foreign currency related risks; debt transaction structure; accounting quality and contingent liabilities/off-,

balance-sheet exposures in addition to management quality and corporate governance and parentage. The financial risk assessment is not done in,

isolation but in conjunction with the business and industry risks that the entity is exposed to. Since the prime objective of the rating exercise is to assess,

the adequacy of the issuerâ€s debt servicing capability, the defendant draws up projection on the likely financial position of the issuer under various",

scenarios. The extent of deterioration of credit profile on account of pandemic is being considered for all entities but the same is factored into,

depending upon their sector and their financial position. The limited exemption provided by SEBI under its circular dated 30th March, 2020 to the",

rating agencies on non-consideration of pandemic was that discretion was granted to the credit rating agency to determine whether any default had,

occurred on account of pandemic or independent of pandemic and in the case of default the credit rating of an entity slips down to “Dâ€​ rating.,

Learned counsel for ICRA further states that the downgrading published on 30th April, 2020 was based on multiple reasons after balancing",

various competing factors, some which strengthened the credit profile, whereas some weakened the same. Undoubtedly, plaintiffâ€s revenue from",

TANGEDCO accounted for over 45% of its overall revenues, however, given a high dependence of revenues and receivables from the state",

distribution utilities, JPL faced the risk of an elongated receivable cycle and due to delays in payments from TANGEDCO, the receivable turnover",

period of JPL increased from 121 days in financial year 2018 to 167 days in financial year 2019 and to 200 days in financial year 2020. Sizeable,

amount of funds blocked in the receivables continued to have a bearing on the Plaintiffâ€s liquidity profile, which remained stretched as reflected in",

consistently high working capital limit utilization averaging at 93% in nine months of financial 2020 and over 95% in the third quarter of the financial,

year 2020 and 96% as on 1st April, 2020. Further repayments in the earlier years remained moderate however, increased substantially in the financial",

year 2020. Thus the liquidity position which was considered moderate while awarding the rating rational of July, 2019, was considered stretched in the",

rational dated 30th April, 2020. It is the case of ICRA of that all reasonable factors were considered and no arbitrary factor was considered.",

From the agreement between the parties, CRA Regulations of SEBI and master circulars, it is evident that the rating provided by any rating",

agency is an independent opinion of an expert body on the likelihood of the issuer to reimburse the principal and pay the interest on its debt obligations,

on the due dates in the future. As per Regulation 2(q) of the CRA Regulations, to formulate an opinion on the credit rating, the analyst and the Rating",

Committee are required to consider various factures, some of which represent credit strengths and other factors which represent credit challenges.",

Consequently, the analysts and the rating committee balance such conflicting factors and exercise their independent professional judgment, by relying",

on, amongst other things, their past experience, to apply these various factors to the available information, in the specific context of that point in time",

and consider likely outcomes.,

As per ICRA, the rating methodology used for rating the facilities of JPL were; Corporate Credit Rating Methodology, Rating Methodology for",

Thermal Power Producers and Liquidity analysis of the entities in non-financial sector. The risk analysis framework used by ICRA for thermal power,

producers requires balancing of various factors and can be broadly divided into the following:,

(i) Business risk drivers which include operating risk; demand and tariff risk; counter party credit risk and force majeure risk.,

(ii) Industry risk drivers which includes regulatory risk,

(iii) Financial risk drivers, which includes adequacy of future cash flows; profitability; leverage and coverage indicators; liquidity and financial",

flexibility; tenure mismatches and risks relating to interest rates and refinancing; foreign currency-related risks; debt transaction structure; accounting,

quality; and contingent liabilities/off-balance sheet exposures. Some of the other risks considered are management quality and corporate governance,

and parentage.,

According to ICRA, the reasons to downgrade the ratings of JPL were:",

(i) The ratings downgrade and revision in outlook to Negative factored continued pressures on Plaintiffâ€s debt coverage metrics and,

liquidity profile, owing to its inability to secure incremental long-term/medium-term power purchase agreements (hereinafter referred to as",

“PPAsâ€), as well as to correct its receivables position. The off take risks stand heightened as lockdowns due to Covid-19 have",

adversely impacted the all-India electricity demand, in turn affecting its sales in the short-term/power exchange market. While access to",

thermal coal at competitive rates is supporting the Plaintiffâ€s profitability at present, ability to achieve a sustainable improvement in the",

plant load factor (hereinafter referred to as “PLFâ€) remains crucial for an improvement in debt coverage metrics, considering the",

Plaintiffâ€s sizeable repayment obligations in the near-medium term (annual repayments of more than ~Rs 800 crores from FY2021,

onwards).,

(ii) Of the 810 MW capacity tied-up at present under medium/long-term PPAs for Plaintiff (out of total 3,400 MW installed capacity), Tamil",

Nadu Generation and Distribution Corporation Limited (hereinafter referred to as “TANGEDCOâ€) accounts for nearly 50%. In,

FY2020E, Plaintiffâ€s revenues from TANGEDCO accounted for over 45% of its overall revenues (including revenues from a medium-term",

PPA of 200 MW which expired in August-2019). Given the high dependence of revenues and receivables from the state distribution utilities,",

Plaintiff faces the risk of an elongated receivable cycle. More specifically, delays in payments from TANGEDCO resulted in an increase in",

receivable turnover period for the Plaintiff from 121 days in FY2018 to 167 days in FY2019 and further to 200 days in FY2020E. As per the,

latest position of receivables shared by the Plaintiff (month-wise dues and payments received during FY2020), defendant noted that",

realisation of energy bills had regularised after August 2019, on implementation of the Government of Indiaâ€s directives of LC-backed",

power purchases by Discoms. However, some lags in clearance of bills in the recent months together with significant amounts blocked",

towards past dues continue to constrain Plaintiffâ€s overall receivables position. Sizeable amount of funds blocked in the receivables,

continue to have a bearing on the Plaintiffâ€s liquidity profile, which remains stretched, as reflected in consistently high working capital",

limit utilisation averaging at 93% in 9M FY2020 (over 95% in Q3 FY2020 and 96% as on April 1, 2020).",

(iii) In this context, even in the last rating rationale (dated July 29, 2019), it was duly highlighted that the Stable outlook on the ratings",

reflected an expected improvement in Plaintiffâ€s receivables position by the end of FY2020. Additionally, Defendant had noted a revival in",

activity in medium/long-term PPAs in the industry and Plaintiffâ€s favourable positioning in the tenders, which provided comfort on the",

Plaintiffâ€s ability to secure incremental PPAs. Plaintiffâ€s inability to achieve any of the above parameters was highlighted in July 2019,

as a rating sensitivity.,

(iv) Further, while Plaintiffâ€​s repayments remained moderate at Rs.367 crore and Rs.497 crore in FY2018 and FY2019, respectively, these",

repayments increased to Rs.830 crore in FY2020 (Rs.695 crore, excluding the March 2020 instalment which is under moratorium as per the",

RBIâ€s Relief Package for Covide-19) and are estimated at Rs.818 crore in FY2021. Given the sub-optimal capacity utilisation,P laintiffâ€​s",

debt coverage metrics have remained modest, as reflected in an interest coverage ratio (operating profit before depreciation, interest and",

tax/interest) of 1.4 times in FY2020E. Although additional interest income from its parent company-Jindal Steel & Power Limited (JSPL),

supplements JPLâ€s operational cash flows, its sustained inability to secure additional long/medium-term PPAs for a major portion of its",

installed capacity, and persistent delay in correction of receivables from TANGEDCO, continues to constrain an improvement in its debt",

metrics.,

(v) Consequently, the liquidity position, while considered moderate in the rating rationale dated July, 2019, was considered as",

“stretched†in the rationale dated April 30, 2020. As per the policy for analysis of liquidity, when liquidity profile is stretched, the same",

may counter balance other factors. The basis for the same is that, “In some situations, liquidity attains such primacy that it alone",

constrains an entityâ€s credit rating, as other credit drivers, even if supportive, become secondary. This follows from the premise that to",

succeed in the long term, an entity first needs to survive the short term. Thus, if an entity has a precarious liquidity position, given the high",

probability of default, it would likely be rated in the low non-investment grade, regardless of other credit positivesâ€​ (emphasis supplied)",

As against the reasons for ICRA to downgrade the rating of JPL one of the contentions of JPL is that ICRA failed to consider the SEBI Circular,

dated 30th March, 2020 which provided relaxations for compliances under CRA Regulations, due to the COVID-19 pandemic and moratorium",

permitted by the RBI as under:,

In view of the developments arising due to COVID-19 pandemic and in light of the moratorium permitted by Reserve Bank of India (RBI),

(vide notification no. RBI/2019-20/186, dated March 27, 2020) on loan servicing, working capital facilities etc. for three months, a need for",

temporary relaxations in compliance by CRAs is felt. Accordingly, it has been decided to grant relaxations from the requirements stipulated",

vide circulars as under:,

Recognition of Default,

A. Currently, CRAs recognize default based on the guidance issued vide SEBI circular dated May 3, 2010 and November 1, 2016.",

B. In view of the nationwide lockdown and the three month moratorium/deferment on payment permitted by RBI, a differentiation in",

treatment of default, on a case to case basis, needs to be made as to whether such default occurred solely due to the lockdown or loan",

moratorium.,

C. Accordingly, based on its assessment, if the CRA is of the view that the delay in payment of interest/principle has arisen solely due to the",

lockdown conditions creating temporary operational challenges in servicing debt, including due to procedural delays in approval of",

moratorium on loans by the lending institutions, CRAs may not consider the same as a default event and/or recognize default. Appropriate",

disclosures in this regard shall be made in the Press Release.,

D. The above shall also be applicable on any rescheduling in payment of debt obligation done by the issuer, prior to the due date, with the",

approval of the investors/lenders.,

E. The above relaxation is extended till the period of moratorium by the RBI.,

Extension in timelines for press release and disclosures on website,

A. Considering that the CRAs are dependent on the issuers and third parties for information collection which is impaired due to current,

lockdown, relaxation from timelines for rating action/issue of press release by CRAs stipulated vide SEBI circular dated June 30, 2017 is",

being granted. However, CRAs should endeavour to finish the exercise on a best effort basis. Such cases shall be put up for ratification by",

the Rating Sub-Committee of the Board of CRA.,

B. Further, an extension of 30 days is being granted for making annual and semi-annual disclosures by CRAs on its website for the period",

ended March 2020.,

This circular is issued in exercise of the powers conferred by Section 11 (1) of Securities and Exchange Board of India Act, 1992 read",

with the provisions of Regulation 20 of SEBI (Credit Rating Agencies) Regulations, 1999, to protect the interest of investors in securities and",

to promote the development of, and to regulate, the securities market.",

The present case is not where JPL is defaulting in repayment and that in terms of SEBI Circular dated 30th March, 2020 ICRA could have",

considered whether the default occurred solely due to the lockdown or loan moratorium. Further while assessing, ICRA was required to ascertain in",

terms of Clause-2(C) whether the delay in payment of interest/principal arose solely due to the lockdown condition creating temporary operational,

challenges in servicing debt including due to procedural delays in approval of the moratorium on the loans by the landing institutions. In the present,

case as per JPL itself, since it is in essential services the services or the consumption of the power of JPL continued and hence due to the lockdown",

there was no lockdown in the services of JPL. The delay of repayment of the dues by TANGEDCO, major service provider of JPL, was not on",

account of COVID-19 situation but that being a government agency, the payment by TANGEDCO due to the reduced collection was upto 50% by",

February, 2020. The said stretch situation was even prior to the lockdown and thus on the said stretch situation of the liquidity, the lockdown had no",

Positive Aspects in 2019,Negative Aspects in 2019

(i) Increased activity on tenders floated for the long/

medium-term power tie-ups in the country over the

past one year. (JPL emerged as the L1 bidder for

515 MW)

(ii) Favourable steps being taken by the Government

of India to address the issue of delayed payments by

various State Electricity DISCOMS.

(iii) JPL‟s competitive capital as well as cost

efficient operations supported by the location of its

plant in proximity to various coal blocks and

linkage for part capacity, which enables it to

compete effectively on tariffs.

(iv) The Stable outlook reflects ICRA‟s expectatio

of comfortable credit metrics in the near-term,

supported by PPAs in place for ~32% of its installed

capacity, increased interest income from JSPL,

which is supplementing the company‟s operational

cash flows, and an expected improvement in

receivables position by the end of FY2020.","(i) Inability of Jindal Power Limited (JPL) to secur

long/ medium-term power purchase agreements

(PPAs) for two-thirds of its 3,400- MW installed

capacity

(ii) Delay in realisation of receivables from Tamil

Nadu Generation and Distribution Corporation

Limited (TANGEDCO).

-

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(i) Debt exposure reduced from Rs. 7200 Crs

approx. to Rs. 6500.

(ii) The Plaintiff has bid for 420 MW and is placed

at 2nd rank of preference, the PPAs for which are

likely to be signed soon after the COVID lockdow

is lifted. This would ensure that the power demand is

restored back to normal.

(iii) Receivables stand completely secured with the

new scheme from government where State based

distribution utilities have to provide LC‟s.

(iv)The recent payment by TANGEDCO of Feb 202

which was due by April 4th 2020 was delayed due to

COVID-19 and theP laintiff has not encashed the

LC only at the request of the government. It is to be

noted that the Plaintiff has received 50% of the

receivables and the balance will be paid shortly.

(v) The past dues from TANGEDCO have bee

received as per settlement of legal cases. The

Plaintiff will also be receiving the remaining dues","Same as 2019

(i) COVID â€" 19: The off take risks stan

heightened as lockdowns due to Covid-19 have

adversely impacted the all-India electricity demand,

nin turn affecting its sales in the short-term/ power

exchange market.

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after the APTEL reopens and the final hearing of,

the change in law is completed.,