Chrisomar Corporation vs Mjr Steels Private Limited on 14 September, 2017
BALCO did not supply power to CSPTCL for one year in order to
Page 30 of 35
Appeal No. 76 of 2016
claim the benefit of planned or forced outage and whatsoever power
was supplied in the months of April, May and June of 2011 it was
duly and fully compensated. The learned counsel submitted that it is
a settled law that the parties to a contract can modify/alter that
agreement by their conduct and to support his contentions he cited
the judgments of Hon'ble Supreme Court dated 14.09.2017 in the
case of Chrisomar Corp. v. MJR Steels Pvt. Ltd., Civil Appeal No.
1930 of 2008, reported as 2017 SCC OnLine SC 1104.
7.2 The learned counsel further contended that as per the order dated
30.4.2010 of the State Commission, the benefit of planned outage
can be given to a generator only for a maximum period of 15 days in
a year and the order nowhere stipulates that the generators are
entitled for full 15 days of outage even if the supply has been made
for a part of year. He pointed out that the benefit of complete 15
days in lieu of planned outage given to the generator by the State
Commission for calculating its load factor is not only unfair but also
unreasonable. The learned counsel for the Appellant was quick to
submit that the letters exchanged by the parties cannot be
presumed to be a valid agreement for one year and it is evident that
the CSPTCL altered the position of the agreement into a month to
month power purchase agreement and as such the generator
cannot claim the benefit of 15 days planned outage for calculation of
the load factor.