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http://www.judis.nic.in 8 of 28 and 617 of 2018

5. Thereafter, he pointed out that the claims of Saheli may be divided into 4 periods, namely, (a) April 2009; (b) May 2009; (c) June- August 2009; and (d) September 2009 to March 2011. According to the learned senior counsel, although April 2009 was within the 90 day notice period under the termination notice, Karthikeya failed to prove that it incurred loss on account of the non-supply of power during the said period. In effect, he contended that Saheli cannot be held liable for the imposition of penalty by TNEB. To put it differently, it was his contention that Karthikeya would have been entitled to damages if the price at which Karthikeya procured power was higher than the price at which Saheli was required to supply power but Saheli cannot be held responsible or accountable for the imposition of penalty and that such penalty is an indirect consequence and not a direct consequence. As regards the second period, namely, May 2009, he submitted that this period is after the expiry of the notice period under the termination notice. Therefore, Karthikeya would not be entitled to the claim for compensation unless it is established that the termination is invalid and that Karthikeya incurred losses as a direct consequence of such termination. In this connection, he relied upon the findings of the First Arbitrator to the effect that the normal charges for power for the month of April 2009 are reflected in Ex.C.14 dated 01.05.2009, which is the bill from the TNEB for the month of April 2009, and because there is no difference between the rate as per Ex.C-32 http://www.judis.nic.in 9 of 28 and 617 of 2018 dated 28.02.2009 and Ex.C14 dated 01.05.2009, Karthikeya failed to prove loss and, therefore, the award of damages of Rs.58,31,331/- is invalid and liable to be set aside. With regard to the second period, he pointed out that Saheli is not liable in respect of the penalty of Rs.7/- per unit, which was allegedly imposed by TNEB. On this claim also, he relied upon the findings of the First Arbitrator. With regard to the third period, namely, June to August 2009, he further pointed out that Karthikeya failed to produce the best evidence in the form of TNEB bills, which were produced for the earlier periods. Consequently, he submitted that Karthikeya had also failed in its obligation to mitigate loss by procuring power from the less expensive source, namely, TNEB. With regard to the 4th period, namely, from September 2009 to March 2011, he pointed out that the Arbitral Tribunal, by a majority consisting of the First and Presiding Arbitrators, concluded that Saheli ceased to be a captive power plant and that, therefore, the PPA was frustrated. Consequently, he submitted that the Award is not liable to be interfered with as regards the finding that the PPA stood frustrated.