- (1.) This writ application is filed by the petitioners for issuing a writ in the nature of mandamus commanding the respondent no.3 to act upon agreement dated November 15, 2006 executed by and between the petitioner company and the respondent no.3 in the matter of determining tariff for supply of energy to the respondent no.3 @ Rs.4.00 per unit for the period from 2008 to 2010 and @ Rs.4.36 per unit for the year from 2010 to 2011.
(2.) The petitioner company and the respondent no.3 entered into an agreement dated November 15, 2006 (hereinafter referred to as the said power purchase agreement) for selling exportable power of 5.3 MW (after the auxiliary consumption) to the respondent no.3. Clauses 8,12 and 15 deal with tariff arbitration and effective date and duration of agreement as follows:- "8. TARIFF: The tariff applicable for the energy to be supplied by the DEVELOPER at delivery point shall be 3.35 paise/unit being the upper price cap set by WBERC. However, the same will be finalised based on actual expenditure incurred for completion of the Project along with cost of connectivity through suitable transmission line up to delivery point and other admissible charges as per Electricity Act, 2003 and Regulations framed there under subject to upper price cap set by WBERC from time to time. This rate shall remain valid for the entire period covered under this power purchase Agreement. 11. REBATE FOR TIMELY PAYMENT AND LATE PAYMENT SURCHARGE: 11.1 The DEVELOPER shall allow a Rebate @ 1 % on the amount of the bill to be Distributing Licensee in case the payment is made within due date. 11.2 Delayed payment surcharge @ 1 % per month or pro-rated for part thereof on the total amount of the bill shall be paid by the Distributing Licensee to the Developer from the due date of the bill in the event non-payment of such bill within due date. 12. ARBITRATION: 12.1 All differences or disputes between the parties arising out of or in connection with these presents, save any question or matter of dispute which falls within the scope and purview of the statutory arbitration under the provisions of Electricity Act, 2003, shall be resolved through arbitration in the following manner. 12.2 In the event of such differences or disputes between the parties and failing settlement of the same through mutual discussions amongst parties concerned within 3 months, any party may by a written notice of 30 days to the other party or parties request for appointment of a Sole Arbitrator to be decided mutually by the parties concerned and in case of disagreement, to be decided by the Hon'ble High Court at Kolkata. The Arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and any statutory modification thereto. The sole Arbitrator shall give a speaking and reasoned award. The decision of the sole Arbitrator shall be final and binding on the parties. The venue of Arbitration shall be at Kolkata. 12.3 The Arbitrator shall reasonably decide in what proportion his fees and cost of arbitration proceeding shall be borne by the parties. The arbitrator with the consent of the parties may extend the time, from time to time, to make and publish the award. 12.4 Notwithstanding the existence of any disputes and differences referred to arbitration, the parties hereto shall continue to perform their respective obligations under this Agreement. 15. EFFECTIVE DATE AND DURATION OF AGREEMENT: This Agreement shall come into force from the date of commercial operation of the power plant and shall remain operative for 10 years provided that this Agreement may be mutually extended, renewed or replaced by another Agreement on such terms and for such further period of time as the parties may agree to. However, the provisions of this Agreement shall continue to operate till this Agreement is formally renewed, extended or replaced, in case Distributing Licensee continue to get power from the plant even after expiry of this Agreement without further renewal or formal extension thereof. In WITNESSWHEREOF the parties hereto have placed their respective hands and seals hereto on the day and year first herein above mentioned."
(3.) The generation of bio-mass based power plant started at Maheshbati, Raina, District Burdwan with effect from July 1, 2008 on commercial basis.;