Junior Engineer Tamil Nadu Electricity Board at Thiruppapuliyur South Arcot District v. L.Premchandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 3.9.2009 Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.1338 of 19951. Junior Engineer Tamil Nadu Electricity Board at Thiruppapuliyur South Arcot District 2. Tamil Nadu Electricity Board rep. by its Superintending.. Appellants / Respondents/ Engineer, Cuddalore Defendantsvs.L.Premchandran .. Respondent / Appellant / Plaintiff.The Second Appeal has been filed under section 100 of C.P.C.against the judgment and decree dated 22.12.1992, made in A.S.No.218of 1992, on the file of the Sub Court, Cuddalore, reversing thejudgment and decree dated 25.2.1992, made in O.S.No.741 of 1990, onthe file of the Additional District Munsif Court, Cuddalore. For Appellants : Mr.N.Muthuswami For Respondent : Mr.K.V.Sajeev Kumar J U D G E M E N TThis second appeal has been filed against the judgment anddecree, dated 22.12.1992, made in A.S.No.218 of 1992, on the file ofthe Sub Court, Cuddalore, reversing the judgment and decree, dated25.2.1992, made in O.S.No.741 of 1990, on the file of the AdditionalDistrict Munsif Court, Cuddalore. 2. The appellants in the present second appeal were thedefendants in the suit, in O.S.No.741 of 1990. The plaintiff in thesuit, who is the respondent in the present second appeal, had filedthe suit praying for a declaration and injunction, to declare thatthe demand made by the defendants for Rs.9,763/- and Rs.2,945/-, intheir bill, dated 21.8.1990, is illegal and not binding on theplaintiff and for a permanent injunction restraining the defendantsfrom collecting the said amount and from disconnecting the supply ofelectricity to the plaintiff's factory. 3. The plaintiff had stated that he is the proprietor of AlpsIce & Cold storage factory, situated at Imperial Road, Cuddalore. Thedefendants are supplying electricity to the factory belonging to theplaintiff, through the service connection No.262, (State Transport). https://hcservices.ecourts.gov.in/hcservices/

4. The plaintiff had further stated that the first defendant, inhis letter, dated 8.3.1990, had directed the plaintiff to providewith the shunt capacitor, in respect of his service connection,before 30.4.1990, failing which, it was stated that a penal levy of10% would be included in the bill for 1/90 and 3/90, if the cycle isrelating to odd months and 2/90 and 4/90, if the cycle is for evenmonths. Thereafter, further time was granted, upto 30.6.1990, forthe providing of shunt capacitor, subject to a penal levy. 5. It has been further stated that the plaintiff had receivedanother letter from the first defendant, dated 30.7.1990, grantingseven days time. The plaintiff had sent a reply, dated 2.8.1990, tothe first defendant, informing him that the shunt capacitor had beeninstalled, as early as 27.4.1990. Thereafter, the plaintiff hadreceived the demand of Rs.64,096/-, as electricity consumptioncharges. The bill amount included Rs.9,763/-, as penal levy, for2/90, 4/90 and 6/90 and Rs.2,945/-, as short assessment, for 4/90.The plaintiff had given his explanation, by way of two letters, dated3.9.1990, to the first defendant for which the plaintiff had receivedtwo replies, dated 6.9.1990. 6. The plaintiff had further stated that the penal levy ofRs.9,763/-, levied by the defendants, is not correct, on facts, sincehe had already installed the shunt capacitor, on 27.4.1990. Theperson, who had taken the meter reading, had not noticed the shuntcapacitor, which had already been installed. Therefore, the plaintiffhad made a request to the defendants to depute a technical person toinspect the factory and to note the installation of the shuntcapacitor. The plaintiff had also explained in his letter, dated3.9.1990, that the assessment of Rs.2,945/-, as short assessment, isincorrect. The method adopted by the first defendant, for such shortassessment, is also incorrect. 7. The plaintiff had further stated that the representationssent by the plaintiff to the first defendant had not beenconsidered, as per the rules and regulations of the Board. Since thefirst defendant was likely to disconnect the supply to theplaintiff's factory, the suit had been filed by the plaintiff,praying for the reliefs, as sought for therein. 8. The written statement filed by the first defendant has beenadopted by the second defendant. The first defendant had stated that,as per the terms and conditions of the supply of Electricity, all LowTension Consumers, with a connected load of 25 H.P. and above and allLow Tension Consumers using welding transformers had to install shuntcapacitors of rating, as specified by the Board. Those, who did notinstall the shunt capacitors, as required by the Board, before31.12.1989, were to be charged consumption charges, as specified inthe revised terms and conditions of supply. The service of those, who https://hcservices.ecourts.gov.in/hcservices/ did not install the shunt capacitors, within a period of two monthsthereafter, were to be disconnected. 9. It had been further stated that, on the representation madeby the consumers, the scarcity of capacitors made by the Board, byits memo, dated 10.1.1990, had extended the time upto 30.4.1990, forinstalling the shunt capacitors. The consumers had been informed toduly intimate the installations to the Board. It was further statedthat on the failure of the consumers to inform the Board about theinstallations, consumption charges would be levied at 10% of thecurrent consumption bills, with reference to the previous twoassessments. In case of odd month assessments, such levy would bemade on the assessments made in 1/90 and 3/90 and in the case of evenmonth assessments, such levy would be made on the assessments made in2/90 and 4/90. According to the memo, if the consumers had failed toprovide the shunt capacitors before the extended period i.e.,30.4.1990, they would be permitted to install the shunt capacitors,on or before 30.6.1990, subject to levy of consumption charges. Ontheir failure to install the shunt capacitors, even after theextended date, the electricity service connection would bedisconnected without any further notice and that reconnection wouldbe done only after the installation of the shunt capacitors. Inaddition to the said conditions, consumption charges would also belevied on the failure to install the shunt capacitors for the furtherperiod of default, till the date of the disconnection of the service. 10. It had also been stated that a notice, dated 8.3.1990, hadalso been issued to the plaintiff directing him to install the shuntcapacitor. Even though the said notice had been served on theplaintiff, on 9.3.1990, he had not intimated the installation of theshunt capacitor, within the permitted time. Thereafter, a notice,dated 30.7.1990, had been issued to the plaintiff stating that theelectricity supply would be disconnected, if the shunt capacitor wasnot provided, within seven days after the receipt of the said notice.Since the plaintiff had not installed the shunt capacitor, prior to30.6.1990, 10% penal charges had been levied on the bills of 2/90,4/90 and 6/90, amounting to Rs.9,763/- and the charges were includedin the bill of 8/90, which was payable in the month of September,1990. Further intimation had also been given by a letter, dated6.9.1990. However, the plaintiff had failed to pay the charges.Meanwhile, the tariff rate for the plaintiff's service connection hadbeen increased from 1.4.1990. The assessor, who had taken thereading, in respect of the service connection of the plaintiff, on22.4.1990, had calculated the current consumption charges for theentire period upto 22.4.1990, at the old rate. In fact, he shouldhave calculated the amount at the old rate for the consumption ofelectricity, till 31.3.1990 and at the revised rate, from 1.4.1990 to22.4.1990. The short assessment amount worked out to Rs.2,945/- andthe said amount had been included in the bill for 8/90. https://hcservices.ecourts.gov.in/hcservices/

11. The plaintiff had wanted a clarification for the shortassessment by sending a letter, dated 3.9.1990. A reply, dated6.9.1990, giving all the particulars as to how the amount ofRs.2,945/- had been arrived at was sent to the plaintiff. Instead ofpaying the amounts, as intimated to him, along with the currentconsumption charges due for 8/90, the plaintiff had chosen to filethe suit in O.S.No.741 of 1990. 12. It has been further stated that the contention of theplaintiff that he had installed the shunt capacitor, on 27.4.1990, isnot correct. Further, no intimation had been received by thedefendants before 30.6.1990. Therefore, the plaintiff is liable topay the penal levy on the current consumption charges for 2/90, 4/90and 6/90. 13. It had also been stated that the bill amount of Rs.64,096/-for 8/90 was inclusive of the current consumption charges, the penalassessment for non- installation of the shunt capacitor till30.6.1990 and the short assessment for the period, from 1.4.1990 to22.4.1990. In the suit filed by the plaintiff, he has questionedonly the penal levy and the short assessment. He had not questionedthe current consumption charges. Therefore, the plaintiff was liableto pay the current consumption charges before 15.9.1990, in spite ofhis obtaining an order of interim injunction in the suit. A notice,dated 14.9.1990, had been issued to the plaintiff demanding thecurrent consumption charges of Rs.51,385/-. Since the plaintiff hadsent a reply, dated 17.9.1990, containing an erroneous and untenableinterpretation of an order of injunction granted in his favour andsince the plaintiff failed to pay the amount demanded from him, hisservice connection was disconnected for the non-payment of currentconsumption charges, on 20.9.1990. Since the amount demanded from theplaintiff are in conformity with the rules and the regulations of theBoard, he is liable to pay the amounts to the Tamil Nadu ElectricityBoard. Further, the suit filed by the plaintiff has not been properlyvalued and the correct court fee has not been paid. Further, the suitfiled by the plaintiff is not maintainable, as it had been filedwithout exhausting the remedies provided under the relevantprovisions of law. Hence, the suit is liable to be dismissed. 14. Based on the averments made on behalf of the plaintiff, aswell as the defendants, the trial Court had framed the followingissues for consideration: "1. Whether the plaintiff is entitled to a relief ofpermanent injunction against the demands for a sum ofRs.2,945/- and Rs.9,763/- by the notice, dated 21.3.1990?2. Whether the court fee for the suit had been paidcorrectly?3. What other reliefs, the plaintiff is entitled to ?" https://hcservices.ecourts.gov.in/hcservices/

15.Exhibits A.1 to A.9 had been filed on behalf of theplaintiff and Exhibits B.1 and B2 had been filed on behalfof the defendants. One witness had been examined on behalfof the plaintiff. The plaintiff had not adduced anyevidence, either documentary or oral, in support of hisclaims.16. After analysing the evidence on record, the trial Court hadcome to the conclusion that the demand made by the defendants, askingthe plaintiff to pay a sum of Rs.2,945/-, is correct, as thecalculation of the amount had been done properly. It was also heldthat the plaintiff is liable to pay a sum of Rs.9,763/-, asdetermined by the defendants. Since the plaintiff had obtained anorder of interim injunction only in respect of the demand ofRs.9,763/- and Rs.2,945/-made by the defendants, and since theplaintiff had no objection in paying the amount of Rs.51,388/-, thetrial Court had come to the conclusion that the plaintiff was liableto pay the said amounts to the Tamil Nadu Electricity Board. Eventhough it had been stated by the plaintiff that he had installed theshunt capacitor, as early as on 27.4.1990, as stated in his letter,dated 2.8.1990, he had admitted in his evidence that he had notintimated the Tamil Nadu Electricity Board about the saidinstallation. 17. The trial Court had held that the claim of the plaintiffthat he had already installed the shunt capacitor and that thepersons, who had come to his building to note the electricity meterreading, had not noticed the shunt capacitor that had been installed,had to be proved by the plaintiff by sufficient evidence. He had notfiled any document in support of his claims. The fact that theplaintiff had raised the issue only after four months from the timethe defendants had levied an amount of Rs.9,763/-, as the penalcharges to be paid by the plaintiff, shows the negligent attitude ofthe plaintiff. In fact, if the plaintiff had installed the shuntcapacitor, on 27.4.1990, he would have informed the defendants,immediately thereafter, about the said installation. 18. The trial Court had further held that it would not bepracticable for the Tamil Nadu Electricity Board to inspect thepremises of all the consumers of electricity and to verify whetherthey had installed the shunt capacitor. The trial Court had furtherheld that it was open to the plaintiff to have challenged the demandmade by the defendants, by way of an appeal, as provided under therelevant provisions of law. The trial Court had further found fromExhibit B.1, which is a communication sent to the plaintiff, from theoffice of the defendants, that the plaintiff had to pay an amount ofRs.51,388/-, apart from the amounts of Rs.9,763/- and Rs.2,945/-,within 24 hours, failing which, it was stated that the electricityservice would be disconnected. However, it was admitted by theplaintiff that the electricity service connection had been https://hcservices.ecourts.gov.in/hcservices/ disconnected by the defendants only after 7 days from the date of thesaid communication. 19. It was further held that even though the court fee paid bythe plaintiff is correct, he is not entitled to the reliefs, asprayed for in the suit. Accordingly, the trial Court had dismissedthe suit, by its judgment and decree, dated 25.2.1992, made inO.S.No.741 of 1990.20. Aggrieved by the judgment and decree of the trial Court,dated 25.2.1992, made in O.S.No.741 of 1990, the plaintiff in thesuit had filed a first appeal on the file the Sub Court, Cuddalore,in A.S.No.218 of 1992. The first appellate Court had framed thefollowing points for consideration:"1. Whether the appellant had proved that he hadinstalled the shunt capacitor by way of Exhibit A.5?2. Whether the appeal is liable to be allowed?"21. After analysing the contentions raised on behalf of theappellant, as well as the defendants and on analysing the evidenceavailable on record, the first appellate Court had reversed thefindings of the trial Court, by its judgment and decree, dated22.12.1992, made in A.S.No.218 of 1992.22. The first appellate Court had found from the Exhibit, markedas A.1, that the plaintiff had been informed that he had to installthe shunt capacitor by 30.4.1990. Later, the time limit prescribedhad been extended upto 30.6.1990. However, there was no intimation tothe plaintiff that he had to inform the Tamil Nadu Electricity Boardafter the installation of the shunt capacitor. Even in Exhibit A.3,it was intimated that the shunt capacitor had to be installed, within7 days from the date of the said intimation. It was also made clearthat on the failure of the plaintiff to install the shunt capacitor,as stipulated by the Board, the electricity service connection of theplaintiff would be disconnected. 23. It was also found that in spite of the plaintiff havinginformed the defendants, by way of the Exhibits A.4 to A.6, thedefendants, had not inspected the service connection of the plaintiffto find out as to whether the shunt capacitor had already beeninstalled, as claimed by the plaintiff. The first appellate Court hadnot accepted the contention of the defendants that it is not possiblefor the Board to verify as to whether all the consumers ofelectricity had installed the shunt capacitors. In suchcircumstances, the first appellate Court had found that the findingsof the trial Court were incorrect. Therefore, the first appellateCourt had reversed the findings of the trial Court, by its judgmentand decree, dated 22.12.1992, made in A.S.No.218 of 1992. https://hcservices.ecourts.gov.in/hcservices/

24. Aggrieved by the judgment and decree of the first appellateCourt, the defendants in the suit and the respondent in the firstappeal had filed the present second appeal before this Court. Thiscourt had admitted the second appeal on the following substantialquestions of law:"Whether the evidence and the admitted plea of theparties has been totally misconstrued by the lower appellateCourt while delivering the impugned judgment under thisappeal, in the context that the Appellant Board is notentitled to levy the penalty for the reasons attributed to?" 25. The learned counsel appearing for the appellants hadsubmitted that the judgment and decree of the lower appellate Courtis contrary to law and the facts of the case. It was also submittedthat the lower appellate Court had erred in coming to the conclusionthat it is the duty of the appellants to check as to whether therespondent had installed the shunt capacitor, as claimed by him. Thelower appellate Court ought to have held that it is the duty of therespondent, who was the plaintiff in the suit, to inform theappellants about the installation of the shunt capacitor. As it isclear, as per the terms and conditions of the supply, non-installation of the shunt capacitor would attract a penal levy of 10%on the defaulting consumer. 26. It was also contended that the lower appellate Court haderred in holding that the assessment made by the appellants isincorrect. The lower appellate Court ought to have held that ExhibitA.1 is valid and binding on the respondent. Since the respondent hadnot adduced any evidence, either oral or documentary, his claim thatthe shunt capacitor had already been installed, cannot be believed.As such, the first appellate Court ought to have confirmed thejudgment and decree of the trial Court. 27. Per contra, the learned counsel appearing for therespondent had submitted that the first appellate Court was right incoming to the conclusion that it is the duty of the appellants toverify the claims of the respondent that he had installed the shuntcapacitor, as prescribed by the Board. The respondent cannot bepenalised for the default of the appellants in failing to verify asto whether the shunt capacitor had already been installed, as claimedby the respondent. 28. The learned counsel appearing for the respondent had furthersubmitted that there was no intimation from the appellants that therespondent had to inform about the installation of the shuntcapacitor. In such circumstances, the second appeal is liable to bedismissed. https://hcservices.ecourts.gov.in/hcservices/

29. In view of the submissions made by the learned counselsappearing for the appellants, as well as the respondent and onanalysing the evidence available on record, this Court is of theconsidered view that the judgment and decree of the first appellateCourt, made in A.S.No.218 of 1992, reversing the judgment and decreeof the trial Court, dated 25.2.1992, made in O.S.No.741 of 1990, isunsustainable. 30. It is clear that the trial Court had come to the correctconclusion by holding that it is for the plaintiff to prove that hehad installed the shunt capacitor in respect of the serviceconnection No.262, (State Transport) in his factory, according to thedirection issued by the Tamil Nadu Electricity Board. However, it isclear that there was no oral or documentary evidence to substantiatehis claim that he had installed the shunt capacitor and that he hadinformed about such installation. 31. It is also clear, from the evidence available on record thatthe plaintiff had not informed the defendants about the installationof the shunt capacitor. By merely saying that the staff of the TamilNadu Electricity Board, who had come to the premises to take theelectricity meter reading, in respect of the plaintiff's serviceconnection, had failed to note the fact that the shunt capacitor hadalready been installed, cannot be put against the defendants, as adefence by the plaintiff. Even though it was made clear that a penallevy of 10% would be levied on the current consumption charges, onthe failure of the plaintiff to install the shunt capacitor, withinthe specified time, the plaintiff had not shown sufficient care toinform the defendants about the installation of the shunt capacitor.Further, the plaintiff could have availed the appeal remedy providedunder the relevant provisions of law. 32. As such, the conclusion arrived at by the trial Court thatthe plaintiff had failed to discharge the onus of proof, inestablishing his claim that he had already installed the shuntcapacitor, as directed by the Tamil Nadu Electricity Board and thathe was liable to pay the amount, as claimed by the defendants, iscorrect. Therefore, the findings of the first appellate Court thatthe defendants had failed to take note of the fact that the plaintiffhad installed the shunt capacitor, as directed by the Tamil NaduElectricity Board, cannot be sustained. Therefore, the trial Courthad rightly dismissed the suit filed by the plaintiff. 33. In such circumstances, this Court is of the considered viewthat the judgment and decree of the first appellate Court, dated22.12.1992, made in A.S.No.218 of 1992, is liable to be set aside.Hence, the judgment and decree of the first appellate Court, dated22.12.1992, made in A.S.No.218 of 1992, is set aside and the judgmentand decree of the trial Court, dated 25.2.1992, made in O.S.No.741 of https://hcservices.ecourts.gov.in/hcservices/ 1990, is restored. Accordingly, the second appeal stands allowed. Nocosts. LanSd/-Asst. Registrar/ true copy /Sub Asst. RegistrarTo:1.The Sub Court, Cuddalore2.The Additional District Munsif Court, Cuddalore3.The Section Officer, VR Section, High Court, MaduraiS.A.No.1338 of 1995BVN (CO)SS (15.10.2009)