Gujarat High Court
Shiv Ice Factory vs Paschim Gujarat Vij Company Limited on 3 December, 2025
NEUTRAL CITATION
C/FA/315/2020 JUDGMENT DATED: 03/12/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 315 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
NO
==========================================================
SHIV ICE FACTORY & ORS.
Versus
PASCHIM GUJARAT VIJ COMPANY LIMITED
==========================================================
Appearance:
MR HARSHAD K PATEL(2844) for the Appellant(s) No. 1,2,3,4,5,6
MR VIRAL J DAVE(5751) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/12/2025
ORAL JUDGMENT
1 The present appeal is filed under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 10.01.2009 passed by the learned 3rd Additional District Judge, Gir Somnath in Special Civil Suit (Electricity) No.7 of 2013, whereby the learned Court has partly allowed the suit filed by the respondent and directed the present appellant to pay an amount of Rs.14,82,214.67/- along with interest at the rate of 6% per annum from Page 1 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined the date of filing of the suit till realization.
2 The case of the appellants before this Court is that the present respondent is the original plaintiff and the appellants are the original defendants in Special Civil Suit (Electricity) No.7 of 2013. The suit was instituted for recovery of an amount of ₹15,76,553.27 along with delayed payment charges and costs. It is averred in the plaint that appellant No.1 is a partnership firm and appellant Nos.2 to 6 are its partners. The firm was engaged in the business of ice production at Borvav on Sasan Road. Appellant No.1 had applied for a temporary electric connection of 50 HP for its ice factory situated in land bearing Survey No.40 paiki of village Borvav, Sasan Gir. The electricity connection was released on 07.12.1997, and subsequently, an application for enhancement of load by another 50 HP was also approved by the respondent electricity company.
2.1 It is the case of the appellants that in the year 1999, the respondent company raised an excessive and false bill, which was challenged before the higher forum and came to be set aside. Similarly, in the year 2000, a bill of ₹10,71,722/- was raised, which was also quashed by the appellate authority. Again, in the year 2002, a Page 2 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined further bill of ₹4,94,639/- was issued, which too was successfully challenged and set aside. Thereafter, on 24.11.2006, the vigilance officer of the respondent company conducted a checking of the electricity connection at the appellants' ice factory, and despite no irregularities allegedly being found, a false case of power theft was lodged. In support of such allegations, rojkam, checking report, and other documents were prepared, and the signature of one Mansukhbhai Suvagiya was obtained.
2.2 On the basis of the said checking report, a supplementary bill of ₹14,82,214.67/- was issued, and a criminal case was also registered against the present appellants. For recovery of the bill amount, a notice dated 06.02.2007 came to be issued, and thereafter the suit was filed claiming the supplementary bill amount along with costs, aggregating to ₹15,76,553.27/- with interest. The appellants appeared before the learned Trial Court, filed their written statement, and examined Mansukhbhai Suvagiya in support of their defence. Upon considering the oral and documentary evidence on record and the submissions advanced on behalf of the respective parties, the learned Trial Court decreed the suit in favour of the Page 3 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined respondent electricity company. The said judgment and decree are the subject matter of challenge in the present appeal.
3 Heard the learned advocate Mr.Harshad Patel for the appellants and the learned advocate Mr.Viral Dave for the defendant.
4 Learned advocate Mr. Patel for the appellants submits that the raid was carried out at midnight at around 01:54 a.m. During the course of the said raid, the meter was found to be intact, and as per the checking report, no tampering was detected in the meter. It is submitted that a false case has been concocted by the respondent electricity company by alleging that there was a scratch near the meter and that certain wires were used to bypass the meter, resulting in incorrect recording of electricity consumption. Learned advocate Mr. Patel further submits that although the meter was sealed after the raid, it was never forwarded to the laboratory for scientific examination to establish whether the sealed meter was recording consumption correctly.
4.1 It is further submitted by the learned advocate Mr. Patel that in the preceding month, i.e., on 16.10.2006, an inspection was carried out and Proforma 15 was filled, clearly indicating that no Page 4 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined power theft was detected at the relevant time. Learned advocate Mr. Patel contends that the officers of the respondent electricity company have repeatedly attempted to implicate the appellants in false cases of power theft, but on all earlier occasions, such attempts failed. It is in this background that a raid was conducted during late- night hours.
4.2 Learned advocate Mr. Patel further submits that although videography and photography are stated to have been conducted as per the rojkam, no such material has been produced before the learned Trial Court to substantiate the allegations of power theft. He submits that despite the fact that everything was found in order during the earlier inspection, a supplementary bill has been arbitrarily issued for the period of six months preceding the date of checking.
4.3 It is submitted by the learned advocate Mr. Patel that the learned Trial Court has committed an error in placing reliance solely upon the evidence of the officer of the respondent company while decreeing the suit against the appellants. In the aforesaid circumstances, learned advocate Mr. Patel prays that the impugned judgment and Page 5 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined decree be set aside and the present appeal be allowed.
5 Per contra, Mr. Viral Dave, learned advocate for the defendant, submits that a rojkam was prepared, wherein it was recorded that the seal near the meter was found to be tampered with. Three wires were found bypassing the meter, and those wires were recovered from the drawer of the table along with a rod, which was used to bypass the meter so as to obtain an incorrect recording of electricity consumption. Learned advocate Mr. Dave further submits that there was no necessity to send the meter to the laboratory, as the meter was admittedly found to be intact. Therefore, no error can be attributed to the electricity company in issuing the supplementary bill by considering the electricity consumption for the period from May 2006 to October 2006, i.e., the preceding six months from the date of checking. He further submits that the present appellant had written a letter to the electricity company requesting that installments be granted for payment of the supplementary bill, which itself indicates that theft had been committed. In this background, learned advocate Mr. Dave supports the judgment of the learned trial Court and prays for dismissal of the present appeal.
Page 6 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined 6 Having considered the submissions advanced by the learned advocates for the respective parties and upon perusal of the record, it emerges that the suit came to be filed for recovery of an amount of ₹15,76,553.27/-, being the supplementary bill amount. The said suit was registered as Special Civil Suit No. 8 of 2008. It is alleged in the plaint that the present appellant had committed power theft as revealed during the checking carried out on 24.11.2006. In support of its claim, the plaintiff produced documentary evidence such as the rojkam, seizure memo, calculation sheet, supplementary bill, panchnama, and other relevant documents. The plaintiff also examined two witnesses: (i) Dhavalkumar Rupsinh Parmar, Deputy Engineer of the respondent-company, examined below Exhibit 44, and (ii) Pravinbhai Surabhai Baldaniya, Deputy Engineer serving at the Veraval Sub-Division Office, examined at Exhibit 45.
6.1 As per the deposition of the witness examined at Exhibit 44, he admitted during cross- examination that he was not a member of the team that conducted the raid and that he had no personal knowledge regarding the alleged power theft. Therefore, his testimony does not lend any substantive support to the plaintiff's case.
Page 7 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined 6.2 With regard to the witness examined below Exhibit 45, he admitted in cross-examination that he had reached the spot of checking at around 1:30 a.m. He further admitted that the meter was recording consumption in a regular manner. He expressed unawareness regarding the laboratory testing. He also admitted that he did not inquire in whose name the electricity connection stood. As regards the acquittal in the criminal case, he similarly pleaded ignorance.
7 On examining the documentary evidence, it emerges from the checking sheet produced below Exhibit 29 that the meter was found to be in an intact condition. Videography and photography of the checking proceedings were undertaken. As per the rojkam produced below Exhibit 30, it was recorded that the colour near the seal of the meter was found to be not in order. It was further noted that three yellow- coloured cables were found bypassing the meter. The rojkam bears the signatures of six officers of the electricity company; however, out of those six officers, only Mr. Baldaniya came to be examined, whose testimony is recorded below Exhibit 44.
7.1 The supplementary bill produced below Exhibit 32 indicates that consumption was assessed for the period beginning from May 2006, and the Page 8 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined amount computed therefrom comes to ₹14,82,214.67/-.
7.2 The present appellant entered the witness box and examined herself below Exhibit 48, and she also examined her husband, Mansukhbhai Ranchorbhai Suvagiya, below Exhibit 53. In her chief-examination below Exhibit 48, it is her case that earlier, in the years 1999, 2000, and 2004, the electricity officers had also carried out inspections and had issued bills which were subsequently set aside by the appellate authority. She further deposed that once again, on 24.11.2006, checking was undertaken and that the electricity officers demanded money from her. She also relied upon the checking carried out on 16.10.2006, pursuant to which Form No.15 was issued, indicating that everything was found in proper order. This fact remained unchallenged during the cross-examination.
7.3 The plaintiff has cross-examined the witness only on the limited aspect that the present appellant had sought installments for payment of the supplementary bill. Similarly, the appellant's husband, who was also examined, was cross- examined by the learned advocate for Page 9 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined the electricity company. In his cross-examination, he admitted that the checking had been carried out in his presence.
8 On considering the overall facts and the evidence on record, it emerges that at the time of checking, the meter was found to be intact. Allegations were made that the electricity consumption was being manipulated by bypassing the meter; however, neither any laboratory report nor any expert evidence was produced to substantiate such allegations. Additionally, though the rojkaam records that photography and videography were undertaken, the said material was not produced before the Court for reasons best known to the respondent. Except for the oral testimony of the electricity officer, namely, Pravinbhai Surabhai Baldaniya, no supporting evidence has been placed on record. On the contrary, the checking sheet reflects that the meter was functioning in proper condition. Merely on the presumption that the colour near the seal was not in proper order, the supplementary bill for alleged power theft for the preceding six months came to be issued.
8.1 It is also undisputed that in the earlier month, upon checking, everything was found in proper Page 10 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined condition. Such material, however, is insufficient to hold the appellants liable for payment of the supplementary bill. It is a settled principle that where the meter is found without defect, the burden lies upon the plaintiff to prove the allegation of theft, and in the present case, the plaintiff has failed to discharge such burden. In this background, in the considered opinion of this Court, the supplementary bill issued by the electricity company is without any basis. The learned trial Court proceeded on the premise that the defendant failed to establish any enmity between the parties, and therefore the plaintiff's case could not be disbelieved; however, such reasoning cannot be sustained in absence of cogent and reliable evidence supporting the allegation of theft.
9 In the opinion of this Court, while recording the aforesaid findings, the learned trial Court has overlooked the facts stated in the chief examination of the present appellant, wherein it has been categorically asserted that repeated checkings were carried out and false bills were issued in the past, which were subsequently set aside by the appellate authority. The learned Court has also failed to consider that in the immediately preceding month, Page 11 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025 NEUTRAL CITATION C/FA/315/2020 JUDGMENT DATED: 03/12/2025 undefined upon checking, everything was found in proper order, and further, in the absence of any laboratory report, the conclusion drawn by the electricity company regarding the alleged power theft rests merely on surmises and conjectures. In such circumstances, the impugned judgment cannot be sustained and deserves to be set aside, and the appeal is required to be allowed.
10 Resultantly, the appeal is allowed. The judgment and decree dated 10.01.2009 passed by the learned 3rd Additional District Judge, Gir Somnath in Special Civil Suit Electricity No.7 of 2013 are hereby set aside.
11 Learned Senior Advocate Mr. Dave requested for a stay of this order.
12 The request is acceded to. This order shall come into operation on completion of the period of appeal.
(M. K. THAKKER,J) M.M.MIRZA Page 12 of 12 Uploaded by M.M.MIRZA(HC01407) on Tue Dec 09 2025 Downloaded on : Wed Dec 10 21:04:51 IST 2025