Tamil Nadu Electricity Board v. K. Subbanna Odayar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 18-08-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.521 of 1993Tamil Nadu Electricity Boardrep. by Superintending Engineer,Erode... Appellant/DefendantVersusK.Subbanna Odayar.. Respondent/PlaintiffPRAYER:Appeal filed U/S 100 of C.P.C. against the judgment anddecree, dated 26.11.1991, made in A.S.No.56 of 1991, on the file ofthe learned Sub Court, Gobichettypalayam, reversing the judgment anddecree, dated 29.3.1991, made in O.S.No.538 of 1987, on the file ofthe District Munsif Court, Sathyamangalam.For Appellant : Mr.N.MuthuswamiFor Respondent : Mr.R.T.DoraisamyJUDGEMENTThis second appeal has been filed against the judgment anddecree, dated 26.11.1991, made in A.S.No.56 of 1991, on the file ofthe Sub Court, Gopichettipalayam, reversing the judgment and decree,dated 29.3.1991, made in O.S.No.538 of 1987, on the file of theDistrict Munsif Court, Sathyamangalam. 2. The brief facts of the case, as stated by the appellant, areas follows:The sanctioned load for the service connection No.395, for SriKarthikeya Mills, run by the respondent/plaintiff, was 129 H.P. + 2.4 https://hcservices.ecourts.gov.in/hcservices/ K.W. On 7.7.1986, the Anti Power Theft Squad had made a surpriseinspection and it had found that the respondent/plaintiff hadconnected the machines of the Mills, for a total load of 153 H.P. +16.4 K.W. As such, there was an unauthorised additional load of 24H.P. connected to the machines. Therefore, the appellant ElectricityBoard had issued a letter, dated 14.7.1986, informing therespondent/plaintiff that the service connection would bedisconnected from 22.7.1986. Against the said notice therespondent/plaintiff had filed a suit, in O.S.No.530 of 1987, for adeclaration to declare that the respondent/plaintiff had not usedunauthorised additional load. The suit which was originally numberedas O.S.No.597 of 1986, on the file of the District Munsif Court,Gobichettipalayam, had been transferred to the District Munsif Court,Sathyamangalam, and it was re-numbered as O.S.No.530 of 1987. 3. Subsequently, an initial assessment notice, dated 19.7.1986,assessing Rs.2,42,246/-, as the loss caused to the appellantElectricity Board, had been issued to the respondent in the presentsecond appeal, directing him to pay a sum of Rs.1,21,173/-, being 50%of the total assessed loss, within a period of 15 days. Challengingthe said notice the respondent had filed another suit, in O.S.No.538of 1987, for a declaration to declare that there was no unauthorisedadditional load and for a mandatory injunction, restraining theappellant Electricity Board from disconnecting the serviceconnection, pursuant to the notice, dated 19.7.1986. Originally, thesaid suit had been filed and numbered as O.S.No.625 of 1986, on thefile of the District Munsif Court, Gobichettipalayam. Later, the suithad been transferred to the District Munsif Court, Sathyamangalam andre-numbered as O.S.No.538 of 1987. 4. Based on the averments made on behalf of the plaintiff, aswell as the defendant, the trial Court had framed the followingissues for consideration:"1) Whether the plaintiff in the suit isentitled to the relief of declaration and forpermanent injunction?2) What other reliefs the plaintiff is entitledto?"5. Both the above mentioned suits had been tried together andthe trial Court, after considering the contentions raised on behalfof the plaintiff, as well as the defendant in the said suits, hadfound that one Mayilsamy, the Supervisor of Sri Karthikeya Mills, whowas present at the time of the inspection by the Anti Power TheftSquad, on 7.7.1986, had given a letter on behalf of the Mills thatcertain machines had been connected with electricity at the time of https://hcservices.ecourts.gov.in/hcservices/ the inspection. It had also been admitted that the total loadconnected at the time of the inspection was 153 H.P. and 16.4 K.W.The said letter had been marked as Ex.B-4. The trial Court had heldthat, since Mayilsamy, who was P.W.1, had accepted his signature onthe letter, the onus was upon the respondent to prove that it wasobtained under threat. The trial Court had also held that the suitshad been filed, prematurely. The suit, in O.S.No.538 of 1987, hadbeen filed against the initial assessment notice, dated 19.7.1986,and the suit, in O.S.No.530 of 1987, had been filed only for adeclaration. Since the respondent had not exhausted the appealremedies available under the terms and conditions of the supply ofelectricity, before filing the suits, the said suits had beendismissed by the trial Court, by a common judgment and decree, dated29.3.1991. 6. Aggrieved by the judgment and decree of the trial Court,dated 29.3.1991, the plaintiffs in the said suits had filed two firstappeals, in A.S.No.56 of 1991, as against O.S.No.538 of 1987, andA.S.No.57 of 1991, as against O.S.No.530 of 1987, on the file of theSub Court, Gobichettipalayam. 7. The First Appellate Court had framed the following points forconsideration"1. Whether the plaintiff had utilisedadditional load of electricity?2. Whether both the suits are premature innature?3. Whether the plaintiff is entitled to thereliefs sought for in the suits?"8. During the pendency of the first appeal therespondent/plaintiff had filed a writ petition, in W.P.No.2159 of1988, for conversion of the service connection, from low tensionservice to high tension service. The writ petition had been disposedof, on 8.7.1988, with a direction to process the application of therespondent and to provide high tension service, if the applicationwas in order, without reference to the alleged malpractice by therespondent. Further, the respondent had been directed to deposit asum of Rs.1,21,173/-, the amount demanded in the notice, dated19.7.1986. The said amount had been deposited before the Sub Court,Gobichettipalayam, and it had been withdrawn by the appellantElectricity Board during the month of August, 1988.9. The lower Appellate Court had allowed the appeals on theground that the appellant Electricity Board had failed to prove that https://hcservices.ecourts.gov.in/hcservices/ the letter, marked as Ex.B-4, had been returned by P.W.2 on behalf ofthe Mills since he had only admitted his signature on the letter. Theburden of proving the letter, marked as Ex.B-4, was upon theappellant Board. Further, it was held that there was no unauthorisedutilisation of additional load by the concerned Mills. The firstAppellate Court had also rejected the contention of the appellantElectricity Board that the suits were premature in nature and thatthey had been filed without exhausting the appeal remedies.10. Aggrieved by the judgment and decree of the first AppellateCourt, dated 26.11.1991, the appellant Electricity Board hadpreferred the present second appeal stating that the lower AppellateCourt had erred in failing to note that the respondent had committeda malpractice by connecting unauthorised additional load andtherefore, the action taken by the appellant Electricity Board is inorder. The first Appellate court had not taken note of the fact thatthe respondent had admitted the use of unauthorised additional load,which is clear from Ex.B-4. The finding of the lower Appellate Court,with regard to the signature on the letter, marked as Ex.B-4, thatthere was no admission of the contents of the letter, is erroneous.The lower Appellate Court ought to have come to the conclusion thatthe suit filed against the provisional assessment notice is notmaintainable in law and that the suits are premature in nature.11. The appellant Electricity Board had filed the present secondappeal raising the following substantial questions of law:"1. Whether the suit filed by the respondent against aprovisional assessment notice is maintainable in law whenthe terms and conditions of supply which are binding on theparties contemplate a particular procedure in the matter ofconduct of enquiry before a final assessment is made.2. Whether the finding of the lower appellate Courtthat only the signature of the respondent's representativecould be taken to have been admitted and not the contentsthereof is sustainable in law particularly when the samehas been written in the letter head of the respondent.3. Whether the reasoning of the lower appellate Courtto hold that only the signature of the respondent in Ex.B-4could be taken to have admitted and not the contentsthereof is sustainable in law.4. Whether in the light of the evidence on record,unauthorised additional load is not established and if sowhether the appellant is not entitled to issue theprovisional notice in terms of the terms and conditions ofsupply." https://hcservices.ecourts.gov.in/hcservices/

12. At this stage of the hearing of the second appeal, thelearned counsel appearing on behalf of the respondent had submittedthat the present second appeal has been filed only against thejudgment and decree, dated 26.11.1991, made in A.S.No.56 of 1991, onthe file of the Sub Court, Gobichettipalyam, reversing the judgmentand decree, dated 29.3.1991, made in O.S.No.538 of 1987, on the fileof the District Munsif Court, Sathyamangalam. No second appeal hadbeen filed against the judgment and decree, made in A.S.No.57 of1991, reversing the judgment and decree, dated 29.3.1991, made inO.S.No.530 of 1987. Hence, the present second appeal is notmaintainable, as it is hit by the principle of res judicata. 13. The learned counsel Mr.N.Muthuswami, appearing on behalf ofthe appellant Electricity Board, had not refuted the statements madeby the learned counsel appearing on behalf of the respondent. 14. In such circumstances, this Court is of the considered viewthat the other issues involved in the present second appeal need notbe gone into, at this stage. As such, the second appeal is liable tobe dismissed, as it is not maintainable in law, since the appellanthad not challenged the judgment and decree made in A.S.No.57 of 1991,arising out of the judgment and decree, dated 29.3.1991, made inO.S.No.530 of 1987. Hence, the second appeal stands dismissed. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1. The Subordinate Judge, Gobichettypalayam, 2. The District Munsif, Sathyamangalam.Copy to: The Section Officer,VR Section, High Court,Madras.+1cc to Mr.N.Muthuswami, Advocate Sr 39099+1cc to Mr.R.T.Doraisamy, Advocate Sr 39311CK(CO)km/7.9.S.A.No.521 of 1993