High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated.: 27.09.2007CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.958 of 2007and M.P.No.1 of 2007Ponni Gounder.. Appellant[2nd Plaintiff]-Vs-1. The Superintending Engineer T.N.E.B. Tatabad, Coimbatore2. The Assistant Engineer TNEB, Coimbatore3. Gopal4. Karuppanna Gounder5. R.K.Ramasamy6. P.Velusamy7. Valliammal8. Savithri9. Shanmugavadivu10. Lakshmanan11. P.Kuppusamy12. Aruchamy.. Respondents[Defendants1 and 2, Plaintiffs 1,3,5,7and 9 to 14].APPEAL filed under Section 100 of the Code of Civil Procedure against thejudgment and decree dated 17.03.2006 in A.S.No.36 of 1992 on the file ofthe Second Additional Subordinate Judge, Coimbatore, reversing thejudgment and decree, dated 22.02.1990 in O.S.No.3328 of 1981 on the fileof the First Additional District Munsif Court, Coimbatore.For Appellant : Mr. C.R.Prasanan.J U D G M E N TThe second plaintiff in O.S.No.3328 of 1981 on the file of the FirstAdditional District Munsif Court, Coimbatore, who succeeded in the suit,but lost before the lower appellate court in A.S.No.36 of 1992 is theappellant in the above second appeal. For the sake of convenience theparties are referred to as per their ranking in the suit. https://hcservices.ecourts.gov.in/hcservices/

2. The suit was filed seeking for permanent injunction restraining thedefendants from disconnecting the agricultural electricity serviceconnection of the plaintiffs on the ground that the plaintiffs aredisputing the correctness of the amounts in the bills and the amountsstated in the bills are excessive and inaccurate. 3. The suit was contested by the first defendant by filing a writtenstatement, inter-alia contending as follows:-The suit is unsustainable both in law and facts; the bills issuedrepresent the actual consumption charges and no surcharge or any otherpenal charges were levied; if really the plaintiffs have any intention topay the arrears, they would have paid the same under protest or could havewritten such complaints to the defendants, but no such complaint was sentby the plaintiffs which will show that they do not want to pay thearrears; the averment in the plaint that the plaintiffs have not receivedbills for the last six months is not correct; the first defendant isclaiming only the amount legally due to them and are taking action inaccordance with the Act and Rules; the plaintiffs are defaulters and theyhave not even paid the consumption charges; on the above said pleadingsthe suit was sought to be dismissed.4. After framing appropriate issues the suit was taken up for trialand during trial on the side of the plaintiffs, five witnesses wereexamined and Exs.A-1 to A-16 have been marked. On the side of thedefendants, one witness was examined and Exs.B-1 to B-22 have been marked.On a consideration of the said evidence, the trial court decreed the suit.Being aggrieved by that the defendants filed an appeal in A.S.No.36 of1992 on the file of the Second Additional Sub Court, Coimbatore. Thelower appellate court on a consideration of the evidence on record and thereasonings of the trial court reversed the judgment of the trial court andallowed the appeal. Being aggrieved by that the second plaintiff alonehas filed the above second appeal. 5. It is pertinent to point out that other plaintiffs have paid theentire amounts due from them and they have not filed the appeal.6. Heard Mr.C.R.Prasanan, learned counsel for the appellant/secondplaintiff.7. Though the learned counsel for the appellant put forth severalcontentions, this Court considers that the above second appeal can bedisposed of on the question of maintainability of the suit. In paragraph10 of the plaint it is stated as follows:-"X. The plaintiffs are disputing the correctness of theamounts in the bills and there is ample evidence to showthat the amounts claimed in the respective bills areexcessive and inaccurate. Once the bills are not accurate,all the claims in the bills would be illegal and void under https://hcservices.ecourts.gov.in/hcservices/ the eye of law. The defendants cannot take shelter underSection 24(1) by disconnecting the service connections onthe claim of illegal bills and the plaintiffs cannot bedeemed to be the defaulters".The above said averments contained in the plaint makes it very clear thatthe appellant who was the second plaintiff in the suit has admitted thedemand raised and has also produced the demand notice dated 14.10.1981pertaining to his service connection Nos.62 and 555. Thus, it is clearthat a demand has been actually raised on the appellant and the appellantis questioning the correctness of the demand. In such circumstances, theappellant ought to have filed an appeal to the competent AppellateAuthority as provided for under the Tamil Nadu Electricity Board (Recoveryof Dues) Act, 1978 (hereinafter referred to as "the Act"). 8. For deciding the issue that arises for consideration in the abovesecond appeal, it will be useful to refer to the provisions contained inSection 2 (2) of the Act, which defines "dues" and Section 2 (3) of theAct, which defines "debtor" and Sections 3(1) and 2(a) of the Act and thesame read as follows:-2. (2) "dues" means any sum payable to the Board on accountof, -(i) consumption of electrical energy supplied or(3) "debtor" means a person by whom any dues are payable;3. (1) Every bill for dues payable to the Board by a debtorshall be in the form prescribed by the Board and shallspecify conspicuously the date by which such dues are to bepaid and shall be served in such manner as may be prescribedby rules.2 (a) If a debtor disputes his liability to pay the whole orpart of the dues specified in the bill referred to in sub-section (1) he may, within such time as may be prescribed,prefer an appeal to the appellate authority to be specifiedby the Board."A combined reading of the above said provisions makes it abundantly clearthat the appellant owes money to the Board towards the consumption ofelectrical energy supplied and when such dues have admittedly not beenpaid, the appellant comes under the definition of "debtor" under the Act.Admittedly, the respondents have raised a demand for the dues, as seenfrom the demand notice, dated 14.10.1981, therefore, if the appellant wasaggrieved by the demand on the ground that it is excessive, the appellantought to have filed an appeal to the Appellate Authority under Section 3(2)(a) of the Act. Admittedly, the appellant has not filed any suchappeal, but instead has chosen to file the suit.9. Though the maintainability of the suit has not been raised by therespondents in the light of the availability of an alternative remedy ofStatutory Appeal under Section 3(2)(a) of the Act, in the writtenstatement filed by the respondents, it is stated that the suit is https://hcservices.ecourts.gov.in/hcservices/ unsustainable both in law and facts.10. Considering this aspect, the Courts below ought to have framed anissue regarding the maintainability of the suit, but unfortunately boththe Courts below have failed to frame such an issue. 11. In the light of the above said provisions of the Act when thisCourt asked the learned counsel for the appellant as to how the suit ismaintainable, the learned counsel had no answer. 12. In the decision reported in (2007) 5 MLJ 58 (Nahar Enterprises V.Chairman, T.N.E.B.) it has been held that a bar to file a civil suit maybe express or implied and an implied bar may arise when a Statute providea special remedy to an aggrieved party and consequently, a suitchallenging an additional levy on the ground of alleged theft of energy isnot maintainable in view of effective remedies under relevant electricitylaws. In this case, admittedly, the effective alternative remedy by wayof Statutory appeal is available to the appellant under Section 3(2)(a) ofthe Act and admittedly such a remedy has not been availed off by theappellant, but unfortunately the above said provisions were not brought tothe notice of the Courts below and the Courts below have not taken care toconsider as to whether the suit for bare injunction is maintainable andonly because of that the trial court entertained the suit and decreed it.Though the lower appellate Court has allowed the appeal it has allowed iton a different aspect and the lower appellate court has not gone into thequestion of maintainability of the suit. This Court is of the consideredview that the suit is not maintainable for the above said reasons.13. At this juncture, the learned counsel for the appellant submittedthat the appellant may be given an opportunity to file the StatutoryAppeal available under Section 3(2)(a) of the Act and as the time forfiling of appeal has expired, a direction may be issued to the respondentsto entertain the appeal that may be filed by the appellant withoutreference to the period of limitation.14. Considering the said submission, it is directed that the AppellateAuthority under Section 3(2) (a) of the Act shall entertain the appealfrom the appellant, if such an appeal is filed within a period of four (4)weeks from the date of receipt of a copy of this judgment, withoutreference to the period of limitation prescribed under the Act. https://hcservices.ecourts.gov.in/hcservices/

15. The above second appeal is dismissed. However there will be noorder as to costs. Consequently the connected MP is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srkTo1. The Second Additional Subordinate Judge, Coimbatore2. The First Additional District Munsif, Coimbatore.+ 1 CC To Mr. C.R.Prasanan, Advocate SR NO.60426S.A.No.958 of 2007 and M.P.No.1 of 2007vc[co]gp/9.7.