The aspect of the knowledge of the pending proceedings before the Courts in Indonesia of the Appellant is a very important point to be considered to decide this issue. Perusal of the above facts of the case would establish that the there was an on-going litigation involving the mining rights of the coal supplier at the time of signing of coal supply agreement. The learned Counsel for the Distribution License contended that these facts ought to have been known to the Appellant. On the other hand, the Appellant has submitted that the Distribution Licensee (Respondent) did not raise these issues before the State Commission and without dealing with those issues the State Commission has merely dealt with the issue from the action of Foreign Government instrumentality and held that Clause 12.3 of the PPA permits only the action by the Indian Government instrumentality can be the ground for force Majeure. These factual aspects admittedly, have not been placed before the State Commission. Thus, the State Commission did not deal with the various factual aspects raised by the Distribution Licensee before this Tribunal for the first time especially with reference to knowledge of the Appellant about the pendency of the litigation and the amendment to the Coal Supply Agreement. view of our above summary of our findings, we feel that this matter be remanded to the State Commission for examining the issue raised by the Distribution Licensee regarding the knowledge of the Appellant on the on-going litigation and amendment to the Coal Supply Agreement and the facts thereon. Accordingly, we remand the matter back to the State Commission with the direction that these issues must be considered afresh in the light of the materials to be furnished by both the parties and decide the same in accordance with the law. 38. The State Commission is directed to go into the issue in the light of the observations made above. Both the parties must cooperate with the State Commission for the expeditious disposal of the matter by furnishing all the details to the State Commission.

Electricity Act, 2003