Maha. State Electricity ... vs Mohd. Yusuf Abdul Gaffar
2017 Latest Caselaw 772 Bom

                                               1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                        NAGPUR BENCH : NAGPUR



Appeal against order No. 31 of 2016



Appellants              :          1.  Maharashtra State Electricity 

                                   Distribution Company Limited, through

                                   its Superintending Engineer, Akola

                                   2. Maharashtra State Electricity Distribution

                                   Company Limited, through Additional 

                                   Executive Engineer Shri Pradip Ramdas 

                                   Ghorude, Occ: service, resident of Akola

                                   versus

Respondent              :          Mohd. Yusuf Abdul Gaffar, aged about 32

years, Occ: business, Prop. M/s New Dinar

Trading Company, Plot No. W 38, Phase III,

MIDC, Akola

Shri A. M. Quazi, Advocate and Shri A. R. Kaplay, Advocate for

appellants

Respondent served

Coram : A. S. Chandurkar, J

Dated : 16th March 2017

Oral Judgment

1. By this appeal filed under provisions of Order XLIII, Rule 1

(r) of the Code of Civil Procedure, 1908 (for short, the "said Code"), the

appellants have challenged the order dated 22.4.2016 by which the

Appellate Court has directed that the property of the Additional

Executive Engineer/appellant no. 2 be attached for breach of the order of

injunction dated 30th January 2016.

2. The respondent is the original plaintiff who has filed suit for

permanent injunction seeking to restrain the appellants from

disconnecting the electricity supply to his Industry. In said suit, the

respondent filed an application for grant of temporary injunction and the

trial Court by order dated 18.1.2016 rejected the said application. In

miscellaneous civil appeal filed by the respondent, the Appellate Court on

30th January 2016 allowed the said appeal. It passed an order of

temporary injunction restraining the appellants from disconnecting the

electricity supply to the Industry of the respondent as long as he made the

regular payments of electricity bills along with an amount of Rs. 60,000/-

per month towards repayment of excess amount. After this order was

passed, the appellants issued two bills to the respondent for the month of

January and February 2016 in which besides the demand for regular

consumption, a demand was made for payment of interest on delayed

payments. According to the respondent, this demand was in breach of

the order of temporary injunction issued by the Appellate Court. The

respondent, therefore, filed an application under Order XXXIX, Rule 2A

of the Code seeking action against the appellants for breach of the order

of temporary injunction. This application was opposed by the appellants

by stating that the breach as alleged was not deliberate and that on

account of outstanding dues, the system automatically generated the

"Assessed Delayed Payment Charges" on the current consumption charges

and the interest was shown in the said two bills. The Appellate Court by

the impugned order held that there was disobedience of the order of

injunction by demanding the amount of interest and on that point, it

directed attachment of the properties of appellant no. 2 along with his

detention in civil prison for a period of ten days. This order is the subject-

matter of challenge in the present appeal.

3. Shri A. R. Kaplay, learned counsel for the appellants

submitted that there was no deliberate non-compliance of the order of

injunction issued by the Appellate Court. According to him, the amount

demanded from the respondent included the amount of interest on

account of delayed payment and this demand of interest was made as the

demand notes were automatically generated in the system installed by

the appellants. According to him, there was no deliberate breach of the

order of injunction and the electricity supply to the respondent's Industry

was not disconnected. It is then submitted that after the aforesaid two

bills came to be issued, there was no demand of interest for delayed

payment from the respondent from the month of March 2016 onwards.

In this backdrop, it is submitted that there is no reason to attach the

property of the appellant no. 2 and detain him in civil prison.

4. The respondent, though served, has not chosen to contest

the proceedings. With the assistance of learned counsel for the

appellants, I have perused the impugned order and other documents filed

on record. As per the order of injunction passed by the Appellate Court,

the electricity to the respondent-Industry was not to be disconnected as

long as he made regular payment of electricity consumed and also paid a

sum of Rs. 60,000/- per month towards repayment of the excess amount.

In the bills issued for the month of January and February 2016 the

amount of interest came to be added and the reason for such addition has

been stated in paragraphs 18 and 19 of the reply filed by the appellants

before the Appellate Court. It is stated that there was no order restraining

the appellant from charging such interest and that the said bills were

automatically generated due to which the amount of interest on the

balance amount came to be shown. The Appellate Court while passing

the impugned order has merely observed that the bills for two months

included the amount of interest and on that basis directed attachment of

properties and detention of appellant no. 2 in civil prison.

5. Considering the stand taken by the appellants in their reply

coupled with the fact that the said bills were automatically generated due

to which the amount of interest came to be included, I do not find that

this act of issuing the aforesaid two bills is deliberate resulting in breach

of order of injunction. Firstly, there is no order of restraint passed by

which the appellants were precluded from charging interest. Secondly,

considering the nature and scale of activities of the appellant no. 1, the

automatic generation of bills is possible. Considering the statement made

that from March 2016 onwards, the amount of interest has not been

demanded from the respondent, I do not find that this is a fit case to

direct attachment of the properties of appellant no. 2 and detain him in

civil prison.

6. In view of aforesaid, the order passed by the Appellate Court

in MJC No. 34 of 2016 dated 22.4.2016 is quashed and set aside. It is

clarified that the aspect of demand of interest on delayed payments would

be a matter to be considered by the trial court while deciding the suit on

merits.

Appeal is allowed in aforesaid terms. No costs.

A. S. CHANDURKAR, J

JOSHI