IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-1-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA OSA Nos.429 of 2009 and 1 of 2010 and MP No.1 of 2009 in OSA 429 of 2009 Madura Coats Private Ltd Rep. By its Manager - Excise and Legal New Jail Road Madurai 625 001. .. Appellant in OSA.459/2009 Agni Steels Private Ltd No.58/1, Avvaiyar Street Teachers Colony, Erode 638 011, Rep. By its Authorised Signatory .. Appellant in OSA.1/2010 vs Kaveri Gas Power Limited Maruthur Village Therizhandur (PO) Mayiladudurai (TK) Nagai District .. Respondent in both appeals Original side appeals preferred under Order 36 Rule 1 of the O.S. Rules read with Clause 15 of the Letters Patent against the order of this Court made in O.A.Nos.760 and 759 of 2009 dated 17.9.2009. For Appellant : Mr.P.R.Raman in both appeals For Respondent : Mr.Yashodvardhan Senior Counsel for Mr.P.Vinodkumar for caveator COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These two intracourt appeals have arisen from the order of dismissal made by the learned Single Judge of this Court in O.A.Nos.759 and 760 of 2009 seeking for an interim injunction restraining the respondent from effecting electricity supply to anyone without first supplying to the appellants/applicants, at least https://hcservices.ecourts.gov.in/hcservices/ 10.41 and 12.5 lakh units of electrical energy per month on firm basis and 4.15 and 4.16 lakh units per month on non-firm basis per month respectively to the appellants pending disposal of the arbitral proceedings. 2.The Court heard the learned Counsel for the appellants and also the learned Senior Counsel for the respondent. The Court also perused all the materials available including the order under challenge. 3.The case of the appellants/applicants is that they are running their respective businesses; that the respondent is running a gas based power plant in Maruthur Village, Mayiladuthurai Taluk; that the respondent conceived the power plant as a captive power plant as defined under Sec.2(8) of the Electricity Act, 2003; that the appellants participated in the equity; that it is agreed that the entire production of the respondent plant would be consumed by the appellants and two other shareholders; that the respondent has also assured substantial reduction in power cost and stability in operations; that the appellants invested Rs.40 lakhs each in the equity share capital of the respondent in consideration of the supply of 12.5 million KWH and 15 million KWH respectively by agreements dated 15.9.2003 and 11.3.2004; that supplementary agreements were also executed on 14.10.2005 and 21.1.2005 respectively; that the appellant in OSA No.429/2009 has entered into another supplementary agreement dated 16.2.2006; that the appellants shall purchase and make payment for the mutually agreed quantity supplied and maintain the status of a scheduled consumer of TNEB; that the agreements would be in force for a period of six years from the date of commencement of supply and renewed on mutual terms; that the agreements could be terminated by any aggrieved party by giving 90 days notice; that if any dispute between the parties arises, the same shall be referred to arbitration; that while the matter stood thus, the respondent has not supplied the electrical energy as per the terms and conditions; that because of that, the appellants are incurring loss which cannot be compensated in terms of money, and hence the applications. 4.The respondent contested the above applications by filing separate counter affidavits stating that they are not able to meet the demands of all its consumers; that on 3.8.2009, they informed the TNEB that it will not supply any power under third party category and decrease of supply if any is due to the reduction of gas availability to produce electrical energy; that the power supply agreement does not contemplate supply of any specific quantity of power on monthly basis; that the agreements contemplate the total supply of power per year on firm and non-firm basis; that the respondent has met with the commitment during the contract period namely from July 2006 to June 2009, and hence the applications were to be dismissed. 5.The learned Single Judge on enquiry, dismissed both the applications. Hence these appeals at the instance of the appellants/applicants. 6.Advancing arguments on behalf of the appellants, the learned Counsel Mr.P.R.Raman would submit that without appreciating the nature and circumstances of the proceedings, the order has been made https://hcservices.ecourts.gov.in/hcservices/ by the learned Single Judge; that even the appellants have specifically stated that the contracted quantity had not been supplied; that it is pertinent to note that the respondent has included its supply of power to the appellants as a third party purchaser under different agreements and at a higher rate to claim performance of the subject power supply agreements; that this was not at all considered by the learned Single Judge; that supply of power to third party purchasers without first fulfilling the needs of the captive consumers is illegal and against the wheeling agreement entered into with the TNEB; that the fact that the respondent had unilaterally terminated the power supply agreements vide letter dated 6.6.2009, though subsequently withdrawn, has not even been considered by the learned Single Judge; that in the instant case, the conduct of the respondent has got to be taken into account; that apart from that, the case of the appellants that the respondent has been short supplying electrical energy despite generation of sufficient quantity of power has not been considered by the learned Single Judge; that it is pertinent to note that though the agreements between the appellants and the respondent refer to supply of a particular quantity annually, such supply was to be effected on a equated monthly basis and even the billing was done on a monthly basis; that the contracted quantity of electricity cannot be consumed or supplied at one single point; that the appellants have made out a prima facie case and the balance of convenience is also in their favour, and under the circumstances, the order of the learned Single Judge has got to be set aside and interim injunction be granted. 7.The learned Senior Counsel Mr.Yashodvardhan appearing for the respondent in his sincere attempt of sustaining the order under challenge put forth the very same contentions which were raised before the learned Single Judge. 8.The Court paid its anxious consideration on the submissions made. 9.Admittedly, the appellants companies carrying on their respective business, entered into agreements with the respondent company which was formed with the specific purpose of generating electrical energy by running a gas basis power plant in Maruthur Village, Mayiladuthurai Taluk. Thus the respondent was a captive power plant as defined under Sec.2(8) of the Act, and the appellants are captive consumers. The appellants invested each Rs.40 lakhs in the equity share capital of the respondent by holding 4,00,000 shares of Rs.10 each, and the same was in consideration of the supply of 12.5 million KWH and 15 million KWH respectively by agreements dated 15.9.2003 and 11.3.2004. Supplementary agreements were also entered into between the parties. As far as the appellant in OSA No.429 of 2009 is concerned, another supplementary agreement was entered into. It was also agreed between the parties that the agreements would be in force for a period of six years from the date of commencement of the supply of electrical energy, and it could also be renewed on mutual terms. The applicants could purchase on payment for the mutually agreed quantity supplied and maintain the status of the scheduled consumer during the currency of the agreements. https://hcservices.ecourts.gov.in/hcservices/ 10.The appellants sought the assistance of the Court by filing applications under Sec.9 of the Arbitration and Conciliation Act seeking interim injunction as stated above complaining that the respondent has violated the agreements by not supplying the electrical energy as per the terms and conditions agreed upon, and in view of the reduction in the supply of energy, the appellants were incurring loss and the same cannot be compensated in terms of money. It is the case of the appellants that the contracted quantity has not been supplied and without first fulfilling the needs of the captive consumers like the appellants, the supply to the third party purchasers was illegal and also against the wheeling agreements entered into with the TNEB. It was also further contended that the respondent had made an attempt to terminate the power supply by a letter dated 6.6.2009, but the same was withdrawn; that the respondent by assigning fallacious reasons is making an attempt to deviate from its obligation of supplying energy to the appellants as per the agreements though there were generation of sufficient quantity of power, and hence it is a fit case where injunction has got to be granted. 11.What was contended by the respondent before the learned Single Judge and equally here also is that the applications under Sec.9 of the Act are not at all maintainable since the arbitral proceedings have commenced where the appellants can ask for damages as they have done; that the very reading of the agreements would clearly indicate that it was terminable at the instance of either of the parties by giving notice; that the agreements provide for damages if there is a breach of the agreements on either side; that there was a supply of 1.5 million KWH for a period of 12 months and under such circumstances, the appellants cannot have any grievance at all. 12.After considering the submissions and looking into the materials available, this Court is of the considered opinion that it is not a fit case where the appellants are entitled for interim injunction since they do not make out a prima facie case or show that balance of convenience is in their favour. 13.No doubt, the parties are bound by the agreements entered into between them. Clause 1.4 of the Article VI of the agreement dated 11.3.2004 reads as follows: "Either party wishing to terminate this Agreement at any time or at the end of 6 years, shall give ninety (90) days advance notice to the other party. If no such notice is given at the end of 6 years, this Agreement shall be renewed by mutual consent for such further period and on such terms as may be mutually agreed upon." Clause 1.4 of the Article VI of the agreement dated 15.9.2003 reads as follows: "Either party wishing to terminate this Agreement at any time or at the end of 6 years, shall give ninety (90) days advance notice to the other party, failing which this Agreement shall be renewed by mutual consent for such further period and on such terms as may be mutually agreed upon." https://hcservices.ecourts.gov.in/hcservices/ Thus it was clearly stipulated that the agreements were terminable at the instance of either of the parties by giving 90 days advance notice. 14.Clause III.1.5 of the agreement reads thus: "In case KGPL is unable to supply the electrical power to the extent of contracted demand on firm basis, the Consumer may request the KGPL to effect such supply by suitably amending the delivery schedule. On the other hand if KGPL is still unable to meet its delivery commitments, then KGPL shall pay the fixed difference of Re.0.47 (forty seven paise only) per unit to the CONSUMER for such quantity of power not supplied by KGPL as against the contracted demand/revised delivery schedule on firm basis during a contract year. The claim, if in order and payable, shall be settled by KGPL within 30 days of receipt of the claim from the Consumer." 15.The above would clearly indicate that whenever there was a deficiency in supply of electrical power to the appellants by the respondent to the extent of the contracted demand on firm basis, then the respondent should pay a fixed difference as indicated therein. Hence it would be quite clear that when there is any deficiency of supply on the part of the respondent, the appellants are entitled to claim damages as found therein. Being conscious of those clauses in the agreements, the appellants have averred in their affidavits that they were to raise an arbitral dispute and claim inter alia damages from the respondent. Thus it is evident from the agreements between the parties that it was terminable, and in the arbitral proceedings, the appellants could make a claim for damages for any alleged breach of any of the obligations by the respondent. 16.Apart from all the above, the learned Senior Counsel for the respondent brought to the notice of the Court that 1.5 million KWH was supplied within a period of one year as agreed by the parties. Under such circumstances, the appellants cannot be allowed to state that the contracted quantity of electrical energy was not supplied. Therefore, this Court is unable to see any merit in the appeals, and the order of the learned Single Judge has got to be affirmed. 17.In the result, both these original side appeals fail, and the same are dismissed confirming the order of the learned Single Judge. The parties are directed to bear their own costs. Consequently, connected MPs are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv https://hcservices.ecourts.gov.in/hcservices/ To The Sub Assistant Registrar, Original Side, High Court, Madras. 2 cc To Mr.P.R.Raman, Advocate, SR.4064 & 4063. 1 cc To Mr.Vinoth Kumar, Advocate, SR.4525. OSA.Nos.429 of 2009 and 1 of 2010 NSM(CO) RVL 29.01.2010 https://hcservices.ecourts.gov.in/hcservices/