K. Raviraja Pandian, J.

The Original Side Appeal Nos.57 and 58 of 2009 are filed against the order and decretal order passed by the learned single Judge dated 13. 2009 made in O.A.No.1103 of 2008 and Application No.5331 of 2008 respectively in C.S.No.906 of 2008 on the file of this Court.

2. The appellant the power generating plant is the first defendant in the suit. The plaintiff and defendants No.2 and 3 are the captive consumers. Defendants No.4 to 7 are subsequent power supply agreement holders. Defendants No.8 and 9 are statutory authorities. For the sake of convenience, the parties are referred in this appeal as arrayed in the suit.

3. The plaintiff filed suit in C.S.No.906 of 2008 seeking for the decree and judgment for specific performance of the wheeling agreement signed by the first defendant on 25. 2006 with the Tamilnadu Electricity Board and consequential permanent injunction against the first defendant from discontinuing power supply to the plaintiff during the subsistence of the wheeling permission granted by the Tamilnadu Electricity Board on 25. 2006 and for a further relief of permanent injunction restraining the first defendant from effecting power supply to defendants No.4 to 7 beyond their share holding without supplying the guaranteed supply of units to the plaintiff as per the wheeling agreement.

4. Along with the suit, the plaintiff filed O.A.No.1103 of 2008 seeking for an order of interim injunction restraining the first defendant from effecting any supply of energy to defendants No.4 to 7 without exhausting the supply of energy at 12.5 lakh units per month on firm basis and 2.5 lakh units on non firm basis to the plaintiff. The first defendant filed application under Section 8 of the Arbitration and Conciliation Act, 1996 in Application No.5331 of 2008 seeking for the relief to refer the plaintiff and first defendant to the arbitration as per the terms of the Power supply agreement dated 29. 2005 to get the dispute resolved.

5. The learned single Judge held that the first defendant had not made out a case for referring the dispute between them and the plaintiff to arbitration and dismissed the application No.5331 of 2008 and allowed O.A.No.1103 of 2008 by directing the first defendant to restore the supply of energy to the plaintiff forthwith at 12.5 lakh units per month on firm basis and 2.5 lakh units per month on non-firm basis and further restrained the first defendant from effecting any supply of energy to defendants No.4 to 7 without exhausting the aforesaid supply of energy to the plaintiff. The correctness of the said orders are put in issue in these two appeals.

6. The facts in brief are as follows:

The plaintiff along with defendant Nos.1 to 3 decided to promote a joint venture captive power generating plant for generation of power for their requirements of the factories owned by them. The plaintiff and defendant No.2 and 3 signed power supply agreement with the first defendant. The power generated by the first defendant has to be supplied to the captive users in proportion to their share capital vis a vis the power production. The eighth defendant the statutory authority granted wheeling permission identifying the captive users of the first defendant. The wheeling permission dated 25. 2006 was subject to several conditions.

7. The plaintiff and defendants No.2 and 3 are the beneficiaries of the wheeling agreement. The plaintiff contributed a sum of Rs.45 lakhs and in consideration of the same the first defendant allotted 4,50,000 equity shares to the plaintiff. The plaintiff is entitled to supply of 1.5 crore units per annum on firm basis and 0.30 crore units per annum on non firm basis. The first defendant conceived an idea of selling the electrical energy to third parties and obtained additional wheeling permission from the 8th defendant. Based on the additional wheeling permission, the first defendant reduced the supply to the plaintiff in the months of August and Sept