Gujarat High Court
Dakshin Gujarat Vij Company ... vs Roongta Textile (P) Ltd Now ... on 30 July, 2021
Bench: A. P. Thaker
C/FA/6356/1999 JUDGMENT DATED: 30/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 6356 of 1999
With
R/FIRST APPEAL NO. 6358 of 1999
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DAKSHIN GUJARAT VIJ COMPANY LIMITED. & 1 other(s)
Versus
ROONGTA TEXTILE (P) LTD NOW ASVASANTI TEXTILES PVT LTD.
================================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2
MR DAXESH T DAVE(248) for the Defendant(s) No. 1
================================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 30/07/2021
ORAL JUDGMENT
1. These appeals are preferred under Section 96 of the Civil
Procedure Code against the common judgment and decree
passed by the concerned Trial Court.
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2. Since both the suits i.e. Special Civil Suit No.204 of 1994
and Special Civil Suit No.232 of 1997 are disposed of by the
common judgment by the Trial Court, these appeals are heard
together and the same are being disposed of by this common
judgment.
3. Brief facts of First Appeal No.6356 of 1999 :-
3.1 Being aggrieved and dissatisfied with the judgment and
decree dated 07.05.1999 passed by the learned 4 th Civil Judge,
Senior Division, Bharuch in Special Civil Suit No.204 of 1994,
whereby the Trial Court has directed the appellants to pay
Rs.4,05,905.60 paise (Rupees Four Lakh Five Thousand Nine
Hundred Five and Sixty paise only) with running interest at the
rate of 15% p.a. from the date of suit till its realization the
appellants have preferred the present appeal. It is contended by
the appellants that it is a statutory Board established under the
Electricity Act. It is contended that respondent's i.e. original
plaintiff's meter was checked on 07.12.1992 and after following
necessary formalities, the said meter was taken for testing and
another meter was placed. It is also contended that on
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22.12.1992, supply of the electricity was disconnected since the
respondent was found committing theft of electricity and the
supplementary bill was issued to the respondent for
Rs.6,81,801/- (Rupees Six Lakh Eighty One Thousand Eight
Hundred one Only). Challenging the said bill, the respondent has
filed the aforesaid Special Civil Suit which came to be allowed by
the impugned judgment and decree.
3.2 The appellants have challenged the aforesaid judgment
and decree on the grounds that the Trial Court has failed to
appreciate that the entire proceedings of sealing of the meter,
checking, preparing Rojkam, testing were carried out by the
Officers of the appellants in their regular course and the same
was done in the manner as the same was required to be done. It
is also contended that the Trial Court has failed to appreciate the
fact that the plaintiff failed to prove that there was any
irregularity the aforesaid proceedings. It is contended that simply
because the respondent does not understand Gujarati language
would not vitiate the Rojkam in the proceedings of the appellants
herein. It is also contended that the respondent has first time
raised this dispute when he has approached the Trial Court and
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that too, at the time of filing of the suit. It is further contended
that the bill was issued to the respondent as per the tariffs and in
accordance with the rules by calculating the average bill and the
respondent failed to prove that it was not in accordance with the
law. It is also contended that the Trial Court has also failed to
appreciate the fact that the oral evidence of Mr.Roongta that he
did not understand the contents of the documents would not
vitiate the documents or the genuineness of the documents and
the same cannot be doubted on the grounds that executant has
no knowledge of the content thereof as it was in Gujarati
language. It is also contended that when there was
documentary evidence, then, there cannot be oral evidence to
exclude the documentary evidence. According to the appellants,
the entire Chapter VI of the Evidence Act has been given go-bye
in the present case while appreciating the entire evidence. It is
further contended that the Trial Court ought not to have gone
into the matter of correction of the bill, especially, when the
respondent has failed to prove that the bill is not in accordance
with the law. On all these grounds, the appellants have prayed to
quash and set aside the impugned judgment and decree dated
07.05.1999 passed by the learned 4 th Civil Judge, Senior Division,
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Bharuch in Special Civil Suit No.204 of 1994.
4. Brief facts of First Appeal No.6358 of 1999:-
4.1 Being aggrieved and dissatisfied with the common
judgment and decree dated 07.05.1999 passed by the learned
4th Civil Judge, Senior Division, Bharuch in Special Civil Suit
No.232 of 1997 dismissing the suit filed by the appellants to
recover the amount of supplementary bill for Rs.6,81,801.07
paise (Rupees Six Lakh Eighty One Thousand Eight Hundred One
and Seven paise Only) from the respondent, the appellants has
preferred this appeal.
4.2 It is contended that the appellants have filed the aforesaid
Special Civil Suit to recover the amount of supplementary bill for
Rs.6,81,801.07 from the respondent on the ground that the
respondent - factory had tempered with the electrical meter and
it was a case of electricity theft / pilferage. It is contended that
the proper procedure was followed by the appellant - Board on
07.12.1992 and it was carried out in the presence of Atul
Roongta and it was found that the plastic seal on iron box was
suspicious and the meter was taken away and was replaced with
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another meter. It is contended that Atul Roongta who made a
voluntary statement to that effect and signed it. It is also
contended that on 24.12.1992, the mater was tested in Board in
presence of Atul Roongta and he voluntarily signed the
statement made before and after the Laboratory Test. It is
contended that during the laboratory test, it was found that
there were yellow plastic seals on the said meter and sealing on
the right side was not proper and the liquid was found between
top and bottom at plastic seal and liquid was found sprayed on
upper and lower portion of the seal. It is contended that the
paper seal on right and left side of the meter was in torn
condition and screw was found shining. According to the
appellants, the respondent was found guilty of tempering with
the meter and it was a case of theft of electricity and, therefore,
supplementary bill was issued after due calculation.
4.3 It is contended that the respondent has preferred appeal
after depositing 30% of the bill which was properly heard and
decided. Against that, the respondent preferred a writ petition
before this court and as per the order of the Court they
deposited Rs.1,00,000/-. In the said writ petition, this Court has
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directed the Board to rehear the matter after giving opportunity
of hearing and to decide the appeal assigning the reasons. It is
contended that accordingly, after giving opportunity of hearing
and assigning the reasons, the appeal was rejected. Since, the
respondent did not pay the amount, the suit in question was
filed, wherein also, the respondent deposited Rs.36,364/- in
Special Civil Suit No.204 of 1994 filed by the respondent.
4.4 It is contended by the appellants that the respondent has
also filed the written statement at Exhibit 8 wherein has denied
the rights and legalities of the suit and stuck to the averments
and contentions made in Special Civil Suit No.204 of 1994.
4.5 It is also contended that the Trial Court has not appreciated
the entire evidence on record and has erred in analyzing the
same. It is contended that there is ample evidence to show that
there was tampered with the seals of the matter and there was a
theft of electricity and that fact has not been appreciated by the
Trial Court in its proper perspective. It is contended that the Trial
Court has not considered the oral and documentary evidence
produced at Exhibit 78, 79, 81 and 82. It is contended that as per
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the evidence of the plaintiff - Board, the case has been proved
by the plaintiff and, therefore, the Trial Court ought to have
granted the decree in favour of the plaintiff instead of dismissing
the suit of the plaintiff. On these grounds, the appellants have
prayed to allow the appeal and to quash and set aside the
impugned judgment and decree and to allow the suit filed by the
appellants herein.
5. Brief facts of the Special Civil Suit No.204 of 1994:-
5.1 The original plaintiff - company is a Limited Company
having its Head Office at Bombay and it is manufacturing knitted
fabrics at Ankleshwar and the day to day manufacturing
activities are being looked after by working Director Mr.Roongta.
It is the case of the plaintiff - company that it is doing job work
and if there is no job work than it remains closed for that
particular period. It is further the case of the plaintiff - company
that the consumption of electricity is varying from day to day
and it is not constant. According to the plaintiff - company, in the
year 1992, it had connected load of 58 H.P. from the defendant -
Gujarat Electricity Board and at the time of filing of the suit, it
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was 78 H.P. load.
5.2 According to the plaintiff - company, the meter put by the
GEB on 28.01.1991 was sealed and fixed inside of an iron box,
which was again sealed by the defendant - Board and installation
was checked by flying squad from Baroda and Ankleshwar and
they have found the said meter sealed etc. quite alright. It is
further case of the plaintiff - company that on 07.12.1992, 4 to
5 persons from the Gujarat Electricity Board came to the
plaintiff's factory and visited the place where the meter was
placed in an iron box and found that seal intact. They cut the
seal of an iron box, opened it and removed the electric meter
packed and sealed the said meter, then they prepared a paper
written in Gujarati and asked Mr.Roongta, the working Director of
the plaintiff - company to sign it, who refused to sign at the first
instance, but on threatening to disconnect electrical supply
immediately, to avoid disconnection and to keep the factory
working, Mr.Roongta, working Director was compelled to signed
the said papers which were written in Gujarati language.
According to the plaintiff - company, the Engineer from the
Electricity Board has not explained in English to Mr.Roongta and,
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therefore, the Director made a remark that he has no doubt
regarding the meter or sealed as it is Gujarat Electricity Board's
property and on second page of this paper, he has made an
endorsement that prior intimation should have been given and
as and when the said meter to be tested in the laboratory thus
his signature was obtained without making him understand in
English. According to the plaintiff - company, Mr.Roongta was
educated in English medium right from K.G. to graduation at
Bombay and was brought up in such society wherein he has no
contact of Gujarati language. It is further case of the plaintiff -
company that the defendant's Engineer has also obtained the
signature on same blank printed in Gujarati written paper on
07.12.1992. It is also case of the plaintiff - company that
thereafter, the concerned Engineer put another meter as
replacement which was monitored daily and kept under their
observation for a period of almost two years.
5.3 It is the case of the plaintiff - company that on 22.12.1992,
the defendant - Board suddenly disconnected the plaintiff's
electrical supply and issued the supplementary bill No.705030
for Rs.6,81,801.07 paise. According to the plaintiff - company, on
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24.12.1992, when the Director Mr.Roongta went to inquire about
the disconnection of electrical supply on 22.12.1992, they
instructed him to come to the laboratory and he accompanied
him to laboratory. It is further the case of the plaintiff - company
that at the place of laboratory, the signatures of Mr.Roongta
were obtained on blank Gujarati printed papers on assurance
that it's a routing process and meter is quite alright. It is further
the case of the plaintiff - company that the meter was not tested
nor it was sealed in the presence of Mr.Roongta and the said
meter was in the custody of the Electricity Board from
07.12.1992 to 22.12.1992 and even at the time of filing of the
suit, it was in the custody of the Electricity Board. It is also the
case of the plaintiff - company that the defendant had not
explained anything about the procedure or testing of the said
meter. On all these grounds, it is alleged by the plaintiff that the
action of the Electricity Board is illegal and supplementary bill is
also illegal.
5.4 It is contended that being aggrieved by the said issuance of
the supplementary bill, the plaintiff has approached this Court
and obtained a stay for disconnection of electricity supply and
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this Court directed the plaintiff to deposit Rs.1,00,000/- and
accordingly, plaintiff - company deposited said amount by
Demand Draft No.370058 on 25.09.1993 and the said amount
has been withdrawn by the Electricity Board. It is further
contended that while allowing the writ petition, this Court has
directed the Appellate Committee of the Electricity Board to hear
the plaintiff and pass a speaking order instead of one line order.
It is further contended that thereafter, without giving any
opportunity of being heard to the advocate, straightway appeal
came to be rejected. It is further contended that the entire
proceedings before the Appellate Committee is pre-determined
and illegal and on this basis, the plaintiff has sought for
declaration that the supplementary bill of Rs.6,81,801.07 paise,
proceeding and so-called statement dated 07.12.1992 and
24.12.1992 and laboratory test report dated 24.12.1992 as well
as allegation of the theft and disconnection of the electric supply
dated 22.12.1992 are illegal, unilateral not binding to the plaintiff
- company. The plaintiff has also claimed for the relief for
permanent injunction against the defendant against the recovery
of the alleged bill amount and against disconnection of electricity
supply. The plaintiff has also sought for the claim of damage of
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Rs.70,000/- and refund of the amount of Rs.3,74,540.60 paise
and Rs.36,364/- along with the interest at the rate of 24% per
annum.
6. The Electricity Board has resisted the suit by filing written
statement at Exhibit 36 and has denied all the contentions of the
plaintiff regarding illegality of the proceedings and against the
relief of declaration and injunction, it is alleged that there was
clear case of theft of electricity and, therefore, the defendant -
Board has rightly issued supplementary bill of Rs.6,81,801.07
and has right to disconnect the electricity supply. It is contended
that the entire proceedings of checking as well as laboratory
testing on the meter was done in presence of Mr.Roongta, who is
well conversant with the Gujarati language and he is able to
read, writ and understand the same. It is further stated that
Mr.Roongta has voluntarily made statement regarding the
procedure and signed the statement at the place of checking and
in laboratory. It is also alleged that while testing the meter in the
laboratory, it was found that there were three yellow plastic
seals on the said meter, but their sealing on the right side was
not proper and the liquid was found between top and bottom at
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plastic seal and liquid was also found spread on upper and lower
portion of the seal. It was also alleged that the paper seal or right
and left side of the meter was torn and the screw was found
shining. According to the Electricity Board, it was the case of the
theft of electricity and they have rightly calculated a
supplementary bill. It is further alleged that the plaintiff had
deposited 30% of the bill and preferred an appeal, which has
properly heard and an opportunity of being heard was also given
to the plaintiff. It was urged to dismiss the suit.
7. It appears from the record that the Trial Court has framed
the following issues in Special Civil Application No.204 of 1994 at
Exhibit 24:-
1. Whether the plaintiff proves that the suit bill is
illegal ?
2. Whether the plaintiff is entitled for the relief ?
3. What order and decree ?
8. The aforesaid issues have been decided by the Trial Court
as under:-
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1. In affirmative;
2. In affirmative;
3. As per final order;
9. Brief facts of Special Civil Suit No.232 of 1997:
9.1 It also appears from the record that the Special Civil Suit
No.232 of 1997 which was preferred by the plaintiff - Gujarat
Electricity Board is to recovery the amount of supplementary bill
amounting to Rs.6,81,801.07 paise from the defendant -
company on the ground that the company has committed the
theft of electricity. It has reiterated the averments made in the
written statement in the Special Civil Suit No.204 of 1994 filed by
the company. It has also reiterated the fact that the checking of
electricity connection and testing of the meter was done in
presence of Mr.Roongta, working Director of the company and
ultimately, it has filed money suit for the amount of
Rs.6,81,801.07 with interest at the rate of 24% per annum.
9.2 In the aforesaid suit of Gujarat Electricity Board, the
company has resisted the suit by filing its written statement at
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Exhibit 8 and it has denied the rights and legality of the
Electricity Board' suit and denied all the averments and
allegations made in the suit. It has adhered to the averments
and contentions made in the plaint at Special Civil Suit No.204 of
1994. It is contended that the entire proceedings was illegal as
Mr.Roongta, working Director was not knowing the Gujarati
language and his signature was only obtained without
explaining the contention of the documents. Thus, in sum and
substance, the contentions made on behalf of the company are
the same which are made in the plaint of earlier suit being
Special Civil Suit No.204 of 1994 filed by it. In addition to it, it is
contended that the suit of the Electricity Board is beyond the
period of limitation and the Board has no legal right to recover
the said amount and sought for dismissal of the suit.
10. It appears from the record that the Trial Court has framed
the following issues in Special Civil Application No.232 of 1997 at
Exhibit 10:-
1. Whether the plaintiff proves that the suit amount of
Rs.6,81,801.07 paise due from the defendant ?
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2. Whether the suit is time barred ?
3. Whether the plaintiff is entitled to recover any
amount ?
4. Whether the plaintiff is entitled for the interest from
the defendant of filing of the suit ? If yes, at what
rate?
5. Whether the plaintiff is entitled for the relief claimed
or any of the reliefs?
6. What order and decree ?
11. The aforesaid issues have been decided by the Trial Court
as under:-
1. In negative;
2. In affirmative;
3. In negative;
4. In negative;
5. In negative;
6. As per final order;
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12. The following points arises for determination of the present
First Appeals:-
1. Whether the Trial Court has committed serious error
of facts and law in holding that the suit filed by the
Gujarat Electricity Board is time barred?
2. Whether the Trial Court has committed serious error
of facts and law in holding that the Gujarat Electricity
Board is not entitled to recovery the supplementary
bill amounting to Rs.6,81,801.07 paise along with
interest @ 15% on it?
3. Whether the Trial Court has committed serious error
of facts and law in passing the decree of declaration
and injunction in favour of the company and to refund
of Rs.4,05,965.60 paise?
4. Whether the Trial Court has committed serious error
of facts and law in dismissing the suit filed by the
Gujarat Electricity Board?
5. What order ?
13. My findings, for the reasons given below are, are as under:-
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1. In negative;
2. In negative;
3. In partly affirmative;
4. In negative;
5. As per final order.
REASONS
14. Since all the points are inter-related, to avoid the
repetition of the facts and circumstances, all are discussed
together.
15. Heard Ms.Lilu Bhaya, learned counsel for the appellants
and Mr.Daxesh Dave, learned counsel for the respondent -
company through video conferencing.
16. Ms.Lilu Bhaya, learned counsel for the appellants has
submitted the same facts which are narrated in both the appeals.
She has submitted that there is ample evidence on record to
show that there is clear case of theft of electricity made by the
respondent. She has submitted that there was checking of meter
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on 07.12.1992 in presence of Atul Roongta and he has signed all
the documents which includes Rojkam etc. She has submitted
that the meter was tested on 24.12.1992 in presence of Atul
Roongta and during the laboratory testing, it was found that
there was tampering with the seal of the meter and accordingly,
calculation of electric charges was made. She has submitted that
at the relevant time, Atul Roongta has signed the documents and
he has never raised any objection that he does not know the
Gujarati language. She has submitted that the said dispute has
been raised only after filing of the suit by the respondent.
16.1 Ms.Bhaya, learned counsel for the appellants has submitted
that against the supplementary bill, the respondent has
preferred appeal before the Appellate Forum of the Board and
during that period, it has paid 30% of the supplementary bill and,
thereafter, the respondent had preferred Special Civil Application
before this Court wherein he has deposited Rs.1,00,000/- as per
order of this Court. She has submitted that in view of the order
passed by this Court, further opportunity was given to the
respondent and after assigning reasons, the appeal came to be
dismissed. She has submitted that thereafter, the respondent
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approached the Civil Court by filing the suit being Special Civil
Suit No.204 of 1994 wherein the respondent has deposited
approximately Rs.36,000/- and has challenged the action of the
appellants herein regarding the issuance of the supplementary
bill. She has submitted that the appellants herein have preferred
another suit for recovery of the supplementary bill. She has
submitted that both the suits have been tried together.
Ultimately the suit of the respondent came to be allowed with
interest, whereas, the suit filed by the Gujarat Electricity Board
has been dismissed by the Trial Court.
16.2 Ms.Bhaya, learned counsel for the appellants has submitted
that there is clear case of heft of electricity which has been
borne out from the oral evidence produced by the Gujarat
Electricity Board. That, the Board has produced all documentary
evidence. According to her submissions, the Trial Court has not
considered the oral as well as documentary evidence produced
in the case. She has submitted that merely because Atul Roongta
was not knowing the Gujarati language that fact itself is not a
ground to disbelieve the oral version of the witness of the
plaintiff herein and contents of the documents produced in the
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case by the appellant - Gujarat Electricity Board. She has
submitted that when the presence of Atul Roongta has been
admitted, then, it was for the respondent to prove that there was
no case of commission of theft of energy and supplementary bill
is not in accordance with law. While referring to the documentary
evidence and the observation of the Trial Court, she has
submitted that there is no need of any independent persons to
be present at the time of preparation of the panchnama. She has
stated that the checking as well as statements of the witnesses
are produced in the matter which ought to have been properly
appreciated by the Trial Court in its proper perspective. She has
submitted that as the documents produced by the appellant -
Gujarat Electricity Board regarding the theft of electricity by the
Company, there is also seal of the company which clearly
suggests that there is nothing on record to reject the contents of
the documents. She has submitted that no suit can be filed, till
the right is crystallized. According to her submission, since the
Company has not paid the supplementary bill, the suit was filed
by the Board for recovery thereof. The right to file suit in favour
of the Board was crystalized after non-payment of
supplementary bill even after disposal of the appeals by
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Appellate Forum. She has submitted that as there was litigation
pending, the Board could not file Special Civil Suit No.232 of
1997. She has submitted that the suit filed by the Board cannot
said to be barred by law of limitation. According to her
submission, the entire reasoning assigned by the Trial Court in
passing decree in favour of the Company is based on assumption
and presumption. She has submitted that the Trial Court has
committed serious error of facts and law in allowing Special Civil
Suit No.204 of 1994 and dismissing Special Civil Suit No.232 of
1997. She has submitted that the judgment and decree is
required to be quashed and set aside and the appeals filed by
the Gujarat Electricity Board needs to be allowed in toto.
16.3 Ms.Bhaya, learned counsel for the appellants has relied
upon the following decisions.
(1) J.M. D. Alloys Ltd Vs. Bihar State Electricity Board and
others, (2003) 5 SCC 226;
(2) Hyderabad Vanaspathi Ltd. Vs. A. P. State Electricity Board
and others, (1998) 4 SCC 470
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17. Per contra, Mr.Daxesh Dave, learned counsel for the
respondent has submitted that Special Civil Suit No.204 of 1994
was filed by the respondent for declaration as well as permanent
injunction and damages, whereas, Special Civil Suit No. 232 of
1997 was filed by the Gujarat Electricity Board for recovery of
supplementary bill. While referring to the documentary evidence,
he has submitted that as alleged the checking of the meter was
made on 07.12.1992 and theft of electricity was alleged to have
been found on 24.12.1992. According to him, the cause of action
for filing the suit for recovery of supplementary bill arised on
24.12.1992, whereas, the suit was filed on 23.12.1997 being
Special Civil Suit No.232 of 1997. According to him, the suit filed
by the Gujarat Electricity Board being Special Civil Suit No.232 of
1997 is clearly time barred.
17.1 Mr.Dave, learned counsel for the respondent has submitted
that as per pages no.33 and 34 of the judgment and decree, the
meter was not tampered with. He has submitted that no
opportunity was given to the respondent and the laboratory
report dated 24.12.1992 was also not provided to the
respondent. He has submitted that though Mr.Atul Roongta has
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signed the documents, he does not know the Gujarati language
and, therefore, he does not know the contents of the documents
produced by the Gujarat Electricity Board. According to him, the
Trial Court has clearly taken into consideration all these aspects
of the matter and has properly rejected the suit of the Gujarat
Electricity Board and allowed the suit of the respondent.
According to him, the reasoning assigned by the Trial Court are
just and proper and they are not perverse one. He has submitted
that the judgments and decree are sustainable in the eyes of law
as there is no factual or legal perversity. He has prayed to
dismiss both the appeals and to confirm the judgment and
decree of the Trial Court.
18. In the case of J.M. D. Alloys Ltd (supra), considering the
factual matrix of that case, it was observed by the Apex Court
that where the seal on CT/PT terminal box was found during
inspection to be tampered with assessment of compensatory
amount under clause 16.9 for the maximum period of 180 days
is proper. Regarding jurisdiction of Electrical Inspector, it was
held that it does not extend to decide a dispute as to whether
the seal on CT/PT terminal box was tampered with and whether
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the working of the meter affected by some external devices.
18.1 In the aforesaid decision, the Apex Court has observed in
para-17 as under:-
"17.......The formula for calculating the fuel surcharge is a
long and complicated one and is given in Clause 16.10.3 of
the Tariff. A host of factors have to be taken into
consideration in calculating the fuel surcharge and they
depend upon many variables. Shri Reddy has submitted
that since the surcharge has necessarily to be taken into
consideration and has to be added in the cost of electricity
and, therefore, in accordance with part (III) of Clause 16.9
of the Tariff, it should also be assessed at three times the
rate per unit. We are unable to accept the contention
raised. Clauses 16.9 and 16.10.3 are separate and distinct
clauses in the Tariff. Clause 16.9 lays down the formula for
calculating the value of the electrical energy abstracted or
consumed by a consumer by exceeding the contracted
load or by creating obstruction in running of meter. Part
(III) of this clause deals with method of charging the
assessed units and sub-para (a) thereof lays down that the
consumption so assessed shall be charged at thrice the
rate per unit of the Tariff applicable to the consumer
excluding the consumption recorded by the meter and the
latter shall be charged at the appropriate Tariff rates.
Clause 16.10.3 is a separate clause which deals with fuel
surcharge and it nowhere lays down that this additional
surcharge will also be levied at thrice the rate per unit of
the tariff. The two clauses namely 16.9 and 16.10.3 have
to be read separately and there being no specific provision
for assessing the fuel surcharge at thrice the rate per unit,
it is not possible to hold that in such a case the fuel
surcharge should also be charged at thrice the rate per
unit.
19. In the case of Hyderabad Vanaspathi Ltd (supra), the
Apex Court, while dealing with Section 49 of the Electricity
(Supply) Act, 1948, has observed in para-27 as under:-
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"27........Section 49 empowers the Board to supply
electricity on `such terms and conditions as it thinks fit'. It
may also frame uniform tariffs. We have found that the
terms and conditions of supply are statutory in character.
They can be invalidated only if they are in conflict with any
provision of the Act or the Constitution. Learned counsel
have not shown to us any provision in the Supply Act with
which Clause 39 is in conflict. In so far as the Supply Act is
concerned, argument hovers around Section 49 only. The
only limitation in that Section is that the terms and
conditions of supply should b e subject to the provisions of
the Act. Clause 39 does not violate any provision in the
Supply Act . It is the statutory duty of the Board to arrange
for the supply of electricity throughout the State and for
transmission and distribution of the same in the most
efficient and economical manner. For that purpose it has
necessarily got to prevent unauthorised user, pilferage or
malpractices by the consumers. Hence the necessary
safeguards have to be provided as part of the conditions of
supply so that the consumers will be bound by them. While
on the one hand, the Board has to recoup the loss suffered
by such pilferage or other malpractices., it has also on the
other got to stop immediately the continuation thereof.
Hence the terms and conditions of supply have to provide
for compensation as well as immediate disconnection. For
ascertaining the loss and fixing the compensation, uniform
procedure has to be framed and a machinery constituted.
Clause 39 is only doing that. Every consumer is made fully
aware of the said terms and he signs the contract only on
that basis. He gives an undertaking in that contract that if
he is found indulging in any malpractice etc. he shall pay
additional charges as may be levied by the Board and that
t he Board have the right to disconnect supply of electricity
to his premises for such period as may be decided by the
Board."
20. Regarding the jurisdiction of the Electrical Inspector, the
aforesaid decision has been referred to and relied upon in the
case of J.M. D. Alloys Ltd (supra). The Apex Court has observed
in para35 as under:-
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35........ Clause 39 will come into play whenever there is
malpractice or pilferage on the part of the consumer or a
fraud played by the consumer. The Electrical Inspector has
no jurisdiction to deal with those matters. He can be
approached only when there is a defective meter or any
defect in wires, fittings, works or apparatus......."
21. Now, on perusal of the record, it is crystal clear that the
plaintiff - company has examined Mr.Atul Roongta at Exhibit 61.
The plaintiff has also produced the documents which consists of
xerox copy of the supplementary bill with statement at the time
of checking and testing report at Exhibit 44 and 45, receipt of
deposit of amount at Exhibit 46. test report at Exhibit 49, notice
at Exhibit 50, load test report at Exhibit 51, order passed by this
Court at Exhibit 52, xerox copy of the Demand Draft at Exhibit 53
and 70, certificate of Chartered Accountant at Exhibit 65,
installation checking report at Exhibit 66, copy of the order from
Manish Vinyls dated 30.12.1992 at Exhibit 71, copy of the
applications of non-receipt of the documents at Exhibit 89 and 90
and the consumption chart from 1989 to 1998 at Exhibit 95,
application.
22. Against this, the defendant side has examined Mr.R. J.
Thakur, Deputy Engineer at Exhibit 78 and Mr.S. J. Panchal,
Deputy Engineer (Laboratory In-charge) at Exhibit 94. The
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defendant has produced the documentary evidence which
consists of original statement of Director Mr.Roongta at Exhibit
79, office copy of the notice at Exhibit 80, customer's meter test
report at Exhibit 81, customer's statement before and and after
laboratory test report at Exhibit 82, order of the Appellate
Committee at Exhibit 83, original Assessment Sheet at Exhibit
85, office copy of Assessment at Exhibit 86 and the order of
Appellate Committee at Exhibit 88.
23. It is pertinent to note that as per the version of the
defendant - Gujarat Electricity Board, the supplementary bill was
issued on 24.12.1992. Now, the defendant - Gujarat Electricity
Board has filed the suit for recovery of the amount of the
supplementary bill on 22.12.1997. In this regard, it is the stand
of the learned advocate for the defendants that due to the
litigation pending before the High Court and the matter being
pending with the authority and the suit being Special Civil Suit
No.204 of 1994 was pending, the right to file the suit by the
Board occurred later on in point of time. Therefore, according to
her, since right to file suit was not crystalised in favour of the
Board, the suit for recovery of supplementary bill was not filed
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and it was filed in the year 1997. She has also submitted that
therefore, the suit filed by the Board cannot be branded as
barred by law of limitation. This submissions of learned advocate
for the defendant i.e. Gujarat Electricity Board is devoid of
merits. On perusal of the plaint of Special Civil Suit No.232 of
1997, it is found that there is no whisper as to how the suit is in
limitation. Even, if the statement made on behalf of learned
advocate for the Gujarat Electricity Board is considered, then, it
appears that the suit supplementary bill was issued on
24.12.1992. It also appears that the Appellate Committee of the
Board has passed the first order rejecting the appeal on
04.08.1993 as per Exhibit 49 which was challenged by the
plaintiff - company before the High Court by way of filing writ
petition which came to be disposed of vide order dated
19.08.1994 with a direction to the Appellate Committee to re-
hear the matter after providing an opportunity of being heard to
the plaintiff - company. The Appellate Committee has decided
the same on 15.10.1994 which has been reflected from the letter
dated 02.11.1997 at Exhibit 84. Thus, even for calculating the
limitation period, the date of the decision of the Appellate
Committee i.e. 15.10.1994 is taken into consideration, the suit
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filed on 22.12.1994 by the Gujarat Electricity Board is clearly
hopelessly time barred. Thus, the observations of the Trial Court
regarding the suit of the defendants being Special Civil Suit
No.232 of 1997 being time barred is factually and legally
sustainable in the eyes of law and the Trial Court has not
committed any errors of facts and law in this regard.
24. On perusal of the entire oral as well as documentary
evidence, it appears that there is no dispute regarding the facts
that electricity connection was installed in the factory premises
of the plaintiff - Company from the defendants. It is also an
undisputed facts that on the relevant date, there was checking
carried out by the officer of the defendants and at that time,
some rojkam was prepared wherein the signature of Mr.Roongta
was made in English language. It is also appears that the meter
was checked in laboratory on 24.12.1992. It also appears from
the evidence that the electricity connection was disconnected on
22.12.1992 i.e. before testing of the meter in the laboratory. It
also reveals from the evidence of Mr.Roongta that it is his
specific stand that he does not know the Gujarati language and
during the course of checking at the factory as well as during the
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course of so-called laboratory testing, he was not explained
anything in English and he was threatened to sign all the
documents which were written in Gujarati language. In this
regard, on perusal of the evidence of Mr.R. J. Thakur of the
defendants, it appears that he has categorically admitted in his
admission that he has knowledge that Mr.Roongta was not
knowing the Gujarati and Hindi language. He has admitted that
he knew that Mr.Roongta was knowing only English language. It
is admission on the part of Mr.Thakur that he has not explained
anything regarding contents of the statement as well as rojkam
and the test report in English to Mr.Roongta. Thus, the allegation
of Mr.Roongta that he did not know the Gujarati language is
categorically admitted by the witness of the defendants. Of
course, he denied the suggestion that the signature of
Mr.Roongta was taken by threatening him to disconnect
electricity connection.
25. Now, considering the documentary evidence on record, it
transpires that all the documentary evidence are in Gujarati
language. It also appears that the signature of Mr.Roongta and
endorsement made by him are in English language. The
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important factor placed in favour of the plaintiff is that the
alleged checking was carried out on 07.12.1992 and electricity
supply was disconnected on 22.12.1992, whereas, the meter was
testing in laboratory on 24.12.1992. Thus, the electricity supply
was disconnected without knowing as to whether there was any
theft of electricity or not. It was necessary to ascertain as to
whether there is any theft of electricity or not prior to
disconnecting the electricity connection. Now, admittedly, in this
case, prior to meter being testing in laboratory, the electricity
supply of the factory was disconnected.
26. It further reveals from the oral and documentary evidence
that the meter was kept in iron box and seal on the box was
intact at the relevant time of checking on 07.12.1992. It also
reveals from the evidence of the defendant's witness that no
foreign inside the meter. Whatever found is regarding some
sort of liquid being found in with the outer seal. But, since there
was no any mechanical or technical tampering with the internal
part of the meter, how the fault was assessed is a main question.
In this regard, there is no iota of evidence led by the defendants
herein. It also reveals from the evidence of Mr.Thakur that the
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assessment of the theft of electricity is made only on the ground
that there was some liquid was found in outer seal of the meter.
It is not a case of the defendant that some outer material was
inserted in the meter by tampering with inside the meter.
Therefore, on re-appreciation of the evidence on record, it clearly
appears that without any basis, the supplementary bill has been
issued by the Gujarat Electricity Board to the plaintiff - company.
27. At the same time, considering the evidence on record as
discussed hereinabove, when there was no iota of evidence
regarding tampering with the meter and at the time of checking,
when the meter was taken out from the iron box, which was
having intact seal, the version of the defendants that there was
theft of electricity is meritless.
28. Now, considering the factual matrix of this case, it is crystal
clear that there was nothing found in the internal part of the
meter which may suggest that there is theft of electricity. It also
reveals from the observations made hereinabove that when the
checking was carried out, the meter was found in iron box which
was having proper seal and there was no tamper with the seal of
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the meter. Moreover, there is no concrete evidence or report by
the testing laboratory that due to the defect noted in Rojkam
there is pilferage or theft of electricity. Thus, the factual matrix
of this case is clearly different from the facts of the aforesaid
both the decisions.
29. It is pertinent to note that so far as the claim of the plaintiff
- company regarding damage of Rs.70,000/- is concerned, it
appears from the record that the plaintiff - company has not
examined any person to substantiate his version. Not only that
the plaintiff has not produced any documentary evidence like the
profit and loss account, balance sheet etc. to substantiate it's
claim of damages to show that the due to non-availability of
electricity, on account of disconnection of electricity, during the
period from 12.12.1992 to 05.01.1993, the plaintiff - company
has incurred damage of Rs.70,000/-. The reasoning assigned by
the Trial Court for rejecting the claim of damage of Rs.70,000/- is
in consonance with the evidence on record. Therefore, the
decision of the Trial Court in this regard needs to be confirmed.
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30. On perusal of the impugned judgment and decree of the
Trial Court, it appears that the Trial Court has taken into
consideration every aspects in its proper perspective and has
properly appreciated the evidence on record in declaring that the
supplementary bill is not legal and valid and the defendant -
Gujarat Electricity Board is not entitled to recover it, even on the
ground of limitation is proper one. However, while calculating the
amount refundable to the plaintiff - company, it appears that
there is no dispute regarding the deposit of Rs.3,40,904.60 paise
by the plaintiff - company, the Trial Court has added Rs.64,000/-
as an interest at the rate of 15% from the date of the deposit till
the date of filing of Special Civil Suit No.204 of 1994. The
awarding of interest is considered on the ground that the Gujarat
Electricity Board is charging interest on commercial rate in a
supplementary bill. Therefore, considering this fact, the Trial
Court has awarded 15% interest. But, this factor is not the only
factor to award higher rate of interest. The other factors like
prevailing rate of interest as well as the rate of interest fixed by
RBI needs to be considered. Thus considering, the interest at the
rate of 15% as awarded by the Trial Court is on higher side.
Therefore, the rate of interest needs to be reduced from 15% to
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9%. On calculation, the amount of interest would come to
Rs.53,692 i.e. Rs.53700/-. As such the plaintiff - Company will be
entitled to Rs.3,94,604.60 paise (Rs.3,40,904.60 + Rs.53,700/-
has interest).
31. Further, it is pertinent to note that the Trial Court, while
granting the decree in favour of the plaintiff - Company has
granted permanent injunction in favour of the plaintiff - Company
which is permanent in nature, affecting the future rights of the
Board to the extent that in case of theft of electricity, in future,
by the company, Board may not be able to take necessary action
which may include issuance of supplementary bill and
disconnection of electricity. This needs to be modified to the
extent that only for non-payment of disputed supplementary bill,
there would not be disconnection of electricity with necessary
clarification.
32. In view of the aforesaid discussions, I pass the following
final order:
ORDER
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First Appeal No.6356 of 1999 is partly allowed. The
judgment and decree passed in Special Civil Suit No.204 of 1994
is hereby modified to the extent that the respondent i.e.
Company is entitled to recover the amount of Rs.3,94,604.60
paise instead of Rs.4,05,905.60 paise along with the interest at
the rate of 9% p.a. from the date of deposit of the amount till the
actual realization.
Further, the permanent injunction granted by the Trial
Court is modified to the extent that the appellants herein and its
officers and servants are hereby permanently restrained from
disconnecting the electricity connection of the respondent -
Company only for non-payment of the disputed supplementary
bill. However, this permanent injunction would not be applicable,
if in future, the respondent - Company or its officers or servants
indulge in theft of electricity.
First Appeal No.6358 of 1999 is hereby dismissed. The
judgment and decree passed in Special Civil Suit No.232 of 1997
is hereby confirmed.
The parties shall bear their own costs in both the appeals.
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The separate decree be drawn in each appeal.
Along with the copy of this judgment and decree, Record
and Proceedings be sent back to the learned Trial Court
forthwith.
Sd/-
(DR. A. P. THAKER, J)
V.R. PANCHAL
