T.N.MOTHILAL v. THE SECRETARY

ORDER ON CMP. NO.62314/2002 IN OP. NO.36874/2002DISMISSED02.06.2009SD/- ANTONY DOMINIC, JUDGEAPPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE DT. 16.9.02 ISSUED BY RESPONDENT TO THE PETITIONER.P2:- COPY OF THE JUDGMENT DT. 30.11.02 IN OP. NO.27959/02 HIGH COURT OFKERALA.P3:- COPY OF THE OBJECTION FILED BY PETITIONER DT. 10.10.02 BEFORE THERESPONDENT.P4:- COPY OF THE NOTICE CUM-STATEMENT DT. 19.11.02 NO.6866/02 ISSUED BYRESPONDENT.P5:- COPY OF THE BILL DT. 2.12.02 ISSUED BY RESPONDENT.TRUE COPY P.A. TO JUDGETSS ANTONY DOMINIC, J.-------------------------O.P. No.36874 of 2002---------------------------------Dated, this the 2nd day of June, 2009J U D G M E N TIn this original petition, the petitioner seeks to quash Ext.P4. 2.Briefly, stated, the facts of the case are that thepetitioner is the owner of a restaurant by name 'Ming Palace'. He isavailing of the energy supplied by the respondent, a licencee underthe Electricity Act. The consumer number is 8554-B. It is statedthat on 16/09/2002, the petitioner was issued Ext.P1 demandingpayment of Rs.5,14,669/- towards the dues allegedly payable forthe period up to March, 2001. Ext.P1 was challenged before thisCourt in OP No.27959/2002. That Original Petition was disposed ofby Ext.P2 judgment directing that Ext.P1 be treated as a notice andgiving liberty to the petitioner to file his objections. In thejudgment, the respondent was also directed to permit the petitionerto verify the account and to consider the matter in the light of theobjection that is to be filed by the petitioner. The petitioner wasalso directed to pay 1/3rd of the amount and it is stated that such O.P. No.36874/2002-2-remittance has been made. 3.Accordingly, Ext.P3 objection was filed, and finally Ext.P4order has been issued confirming the demand. Along with Ext.P4, astatement of the dues also has been given, which shows that theamount demanded is for the period from 1992-93 to 2000-01. Thepetitioner challenges Ext.P4 as one made without any basis. It isalso stated that in pursuance to Ext.P2, the respondent was obligedto allow him to verify the accounts, and that was such verificationnot allowed. According to the petitioner, in view of the provisionscontained in Section 539 of the Municipalities Act, no dues can becovered after the period of three years and that for this reasonitself, the demand calls for interference. 4.The main contention that is raised in the counteraffidavit filed by the respondent is that periodically they wereissuing invoices to the petitioner. It is stated that the petitioner wasnot settling their bills in full, but was making only part payments. Itis stated that such part payments were accepted and that what isdemanded in Ext.P4 is essentially the balance amount, that is due.5.As far as the theory of part payment is concerned, apart O.P. No.36874/2002-3-from the fact that the respondent has failed to submit anydocument in support of this contention. The learned counsel for thepetitioner denies this allegation. He also refers to me Clause 32F ofthe Conditions of Supply of Electrical Energy, which was beingadopted and followed by the respondent, which prohibits such partpayments and provides that such part payments will not beaccepted. In the light of Clause 32F referred to above, and in theabsence of any document in support of the claim of the respondent,I cannot accept the contention in the counter affidavit. Irrespectiveof this, it has to be accepted that in terms of Section 539 of theMunicipalities Act, no dues can be recovered after a period of threeyears. Evidently, Ext.P4 discloses that the demand is for the periodfrom 1992-93 to 2000-01, and the first time demand made was byExt.P1 dated 16/09/2002. Therefore, the three year period has tobe counted from 16/09/2002. So counted, except the duesdemanded for the immediately preceding three years, rest of theperiod in relation to which amount has been demanded has becometime barred when Ext.P1 was served on the petitioner. If that be so, that portion of the amount claimed in Exts.P1 & P4 cannot be O.P. No.36874/2002-4-realised. Therefore, on that basis, Exts.P1 & P4 deserveinterference. 6.Accordingly, I direct the respondent to revise Exts.P1 andP4 excluding the portion that has become time barred as on16/09/2002, when Ext.P1 was issued. It is directed that towardsthe liability arising out of such requantification, 1/3rd of the amountremitted by the petitioner in pursuance to Ext.P2 will beappropriated and if there is any balance amount to be paid, thepetitioner shall pay the same. On the other hand, if the amountpaid is in excess of the amount due, the same will be adjusted inthe petitioner's future bills. The original petition is disposed of as above. (ANTONY DOMINIC, JUDGE)jg