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The petitioner is a company involving in the production of captive power generation. The raw material for the aforesaid purpose is the natural gas. Agreements have been entered into between the petitioner and the first respondent. These agreements include a power supply agreement with its supplementaries. The arrangement between the parties is to the effect that the petitioner shall supply a specified power at a price, which is less than Rs.0.47 paise than the one supplied by the Tamil Nadu Electricity Board. The first respondent has also become a shareholder in the petitioner company. Apart from these arrangements, two Memorandum of Understanding were entered into between the parties for the supply of 1 and 0.5 MW respectively with the price fixed at Rs.7.25 per KWH as against the earlier one of Rs.3.31 per KWH.

(1) STEEL AUTHORITY OF INDIA LIMITED V. GUPTA BROTHER STEEL TUBES LIMITED ((2008) 10 Supreme Court Cases 63).

11. The fundamental and basic facts are not in dispute with respect to the agreements and communication between the parties. Thus, the liability to supply cannot be denied. On this, the Tribunal has rendered a factual finding that this is not a case of supply not made due to inability but a deliberate refusal to augment higher revenue through the sale in favour of third parties. The Tribunal has also found that it was not correct to state that there was inadequate of raw materials viz., gas for the power production. These findings being factual cannot be assailed and therefore, they formed the foundation on the other issues.