No binding contract was established due to lack of acceptance and proof of performance by the plaintiff under the purported operation and maintenance agreement.

JUDGMENT :

P. VELMURUGAN, J.

The plaintiff-Company has filed the present suit seeking directions to the defendants to pay Rs.3,81,78,011/- towards the outstanding dues to be paid to the plaintiff, with interest at the rate of 18% till the date of realisation and to award costs of the suit.

2. The averments made in the plaint, in a nut-shell, are as follows:

2.1 The plaintiff-Company is incorporated under the provisions of the Companies Act, 1956 on 19.07.1995. The main object of the plaintiff-Company is to harness wind energy with the help of wind turbines and other equipments and from such production, the plaintiff-Company is selling, distributing, supplying and shares energy to Governments, companies, industries, electricity Boards and individuals. In addition, the plaintiff-Company provides various kinds of service including installation, commission, operation and maintenance of all kinds of power generation equipments, machineries and plants.

2.2 On 29.03.2006, the plaintiff-Company entered into an agreement with the defendant-Company for carrying out operation and maintenance (O & M) work of the defendant's 265 W.E.G's (Wind Electric Generators), which was accepted by the defendant-Company on the same date. The work order was entered with certain terms and conditions prescribed, as per which the O & M work has to be carried at Tirunelveli and Kanyakumari Districts at the wind farm installation on turn-key basis. The work includes providing consumables like greases and lubrications, fuses, break pads, etc., torque checking, preventive and regular maintenance work for wind turbines and other installations.

2.3 The plaintiff-Company had been carrying out their best and makes the wind turbines operate at 95% of its efficiency. The agreement includes O & M of wind turbines, electrical DP structures, infer-farm lines up to metering point. The charge arrived at for O & M of each wind turbine per month is Rs.12,000/- and the plaintiff-Company had been sincerely and regularly carrying out work of O & M allotted to it. As such, the defendant is liable to pay the plaintiff a sum of Rs.1,53,60,000/- towards the O & M works done by the plaintiff.

2.4 The plaintiff-Company has engaged its employees to carry out the work. The plaintiff had spent a sum of Rs.1,09,69,801/- in maintaining the defendant-Company's 265 W.E.G's by purchasing materials, spares and paying salary to the employees. All of a sudden, the defendant in the month of August 2006 abruptly stopped its payment to the plaintiff. Due to non-payment, the plaintiff was unable to bear the expenses and pay the salary to its employees. The plaintiff spent huge amount of Rs.1,09,69,661/- towards operating and maintaining and paying salary to the employees for maintenance of 265 WEG of the defendant-Company. The plaintiff- Company performed their part of contract for 265 units as per the O & M agreement.

2.5 The defendant is liable to pay the plaintiff a sum of Rs.2,63,29,661/- towards O & M charges and expenses incurred by it towards maintaining the defendant's 265 WEGs.

2.6 There was no complaint or dis-satisfaction in the work carried out by the plaintiff-Company. Payment was not made to the plaintiff from the month of September 2006 and the defendant-Company promised to pay the dues. Believing the words of the defendant, the plaintiff had been carrying out their work by incurring expenses towards maintaining 265 WEGs belonging to the defendant-Company. The plaintiff is entitled to the amount to which it has performed the service work and to the expenses incurred in maintaining the defendant's WEGs, as per the O & M agreement