JUDGMENT :

(Prayer: Original Petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the award dated 19/11/2010 passed by S.Jagadeesan, Judge (Retd) in the Arbitration Proceedings in O.P.No.593 of 2008 in the matter of dispute between the petitioner and respondent and consequently allow the claim of the petitioner.)

1. This Original Petition has been filed to set aside the award, dated 19/11/2010, passed in the Arbitration Proceedings in O.P.No.593 of 2008, in the matter of dispute between the petitioner and first respondent.

2. The brief case of the claimant is as follows:-

The claimant wanted to set up an infrastructure for the manufacture of Green Energy using Wind Mills to generate Electricity. The first respondent, who is a Manufacturer, Contractor in Erection of Wind Energy Devices or Wind Energy Generators (hereinafter referred to as WEG in short), approached the claimant through its sales representatives, claiming that they were the leading manufacturers of WEG and have set up large Wind Mill Farms in the South of India. The representatives of the first respondent Company informed the claimant that the sites in Palladam in Coimbatore District and Tenkasi in Tirunelveli District are potential for wind electrical generators and represented that WEG bearing Model No.P.S.600 KW with 47 m Rotor diameter mounted on a 50 m power was of a proven technology and found to be very effective in wind energy generation. The claimant agreed to purchase 10 numbers of WEGs, for a sum of Rs.3 crores, per wing, electric generator and accordingly, placed an order, on 16/2/2008. The first respondent has to pay for liquidity damage of Rs.6 lakhs per WEGs, which are not commissioned till 25th March 2008.

3. Pursuant to the Purchase Order, first respondent had supplied 10 numbers of WEGs belatedly, in violation of terms of Purchase Order, dated 16/2/2008 and the power generation is far below due to the sub standard machines. The claimant has issued a debit note, dated 17/5/2008, for a sum of Rs.60 lakhs. However, the same was not denied, till 20/10/2008 and thereafter, the first respondent raised the demand for payment.

4. The first respondent, as per the Power prognosis had guaranteed that generation of 14 lakhs unit per WEG at both Tenkasi and Palladam sites and in the event of lessor generation, then the guaranteed amount, i.e., if the variation is more than 10% from the expected performance, then the claimant is entitled to compensate at the power purchase rate of the State Electricity Board at Rs.2.90 per unit. Therefore, the claimant has claimed damages for Rs.93,35,761/-, as damages on account of variation in power generation, as per clause v of the Purchase Order, dated 16/2/2008 and for a direction, restraining the first respondent and their representatives from any manner disrupting, disconnecting or failing to maintain, attend to the repairs, carry out check, maintain the generation data, sent daily generation report to the claimant in respect of the wind energy generators set out in the schedule and for a direction, directing the first respondent to furnish information as required for availing carbon credit and such other benefits in respect of the schedule mentioned WEG and to pay a sum of Rs.6 lakhs being the legal expenses and costs incurred by the claimant till date to defend and prosecute the litigations.

5. It is the case of the respondent that the claimant defaulted in adhering to the payment schedule, as agreed to in the Purchase Order. Only after much persuasions, as evidenced by emails and letters, claimant made belated payments. Delay in Commissioning was solely on the ground of delayed payments. In terms of the Purchase Order, the first respondent has only provided performance guarantee of the WEGs based on power curve and this guarantee was to commence only after one month from the date of commissioning of WEGs and will be valid till two years from the date of commissioning. No gua