The Senior Executive Engineer vs Unknown
2022 Latest Caselaw 7421 HP

                                            1

          IN   THE   HIGH COURT OF HIMACHAL                  PRADESH, SHIMLA
                       ON THE 5th DAY OF SEPTEMBER, 2022
                                        BEFORE




                                                                   .
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





                  REGULAR SECOND APPEAL No. 127 OF 2022

    Between:





    THE    SENIOR   EXECUTIVE   ENGINEER,
    ELECTRICAL DIVISION HPSEBL PARWANOO,
    DISTRICT SOLAN, H.P.





                                                                          ....APPELLANT
    (BY MR. T.S.CHAUHAN, ADVOCATE)

    AND

    M/S PENTAGON PACKAGING, KHASRA
    NO.506/1 SECTOR-1, PARWANOO, TEHSIL
    KASAULI, DISTRICT SOLAN, H.P. THROUGH
    ITS AUTHORIZED SIGNATORY SH. BHAVESH
    PADHYA SON OF SH. KUBER PRASAD


    PADHYA, PLANT HEAD.
                                                                       ....RESPONDENT

    (BY MR. SURENDER K. SHARMA, ADVOCATE)




         This Appeal coming on for orders this day, the Court passed the following:





                         JUDGMENT

Instant Regular Second Appeal filed under Section 100 CPC, lays

challenge to judgment and decree dated 12.09.2019 passed by the Additional

District Judge-1, Solan, District Solan, H.P., in Civil Appeal No.9-S/13 of 2018,

affirming the judgment and decree dated 28.12.2017 passed by learned Civil

Judge (Senior Division), Kasauli, District Solan, H.P. in Civil Suit No.115/1 of 2013,

whereby suit under Sections 9, 26 Order VII Rule 1 and 2 CPC read with Sections

34 and 38 of the Specific Relief Act, 1963 for declaration and permanent

prohibitory injunction having been filed by the respondent-plaintiff (hereinafter

referred to as the plaintiff ), came to be decreed.

.

2. Precisely, the facts of the case, as emerge from the record are

that the plaintiff filed suit against the appellant-defendant (hereinafter referred

to as the defendant) for declaration to the effect that notices dated 5.08.2013

and 11.10.2013 issued by the defendants for demand of Rs. 3,18, 525/- are

wrong, illegal and null and void and not binding upon the rights of the plaintiff

being against the principles of natural justice and law. Besides above, plaintiff

also prayed for permanent prohibitory injunction, restraining the defendants

from disconnecting the electricity connection of the plaintiff on the strength of

aforesaid notices. Precisely the case of the plaintiff is that it is running a factory

under the name and style of M/s Pentagon Packaging at Parwanoo and deals

with offset printing and designing, lamination and packaging of paper carton,

paper products and other related products. Plaintiff applied for low tension

electricity connection of 48 KW vide account No.HMMS-09, which was

released in favour of the plaintiff vide office service connection order

No.192/6561 dated 12.6.2006. Thereafter, again in the year 2008, plaintiff

applied with defendants for enhancement of power connection No.48 KW low

tension to 250 KW High tension and the same was sanctioned by defendants

vide SJO No.6568/174 dated 05.11.2008 vide account No. LS 180. After

aforesaid sanction plaintiff started running his factory with electricity connection

of 250 KW High Tension. Defendant issued industrial electricity energy bills in

favour of the plaintiff duly signed by defendant No.3 with effect from 13.05.2011

to 7.10.2013, which was duly paid by the plaintiff. The defendants issued a bill

for the period 24.05.2013 to 24.06.2013, amounting to Rs. 4, 26, 303/-,

whereas the electricity consumed by the plaintiff was of Rs. 1,21,945/- and as

.

such, plaintiff raised a protest against the aforesaid bill upon which defendants

verbally asked the plaintiff to deposit sum of Rs. 1,21,945/- and assured that

they will adjust the remaining amount lateron. The plaintiff deposited an amount

of Rs. 1, 21,945/- vide receipt dated 15.07.2013 and again vide representation

dated 18.07.2013, requested the defendants against issuance of wrong bill

amounting to Rs. 4, 26,330/-, however defendants vide notice dated 5.08.2013

directed the plaintiff to deposit remaining amount of Rs. 3,18, 525/-. Defendant

also observed in the notice that in the event of non- payment/deposit of

aforesaid amount, electricity connection of the plaintiff would be disconnected.

Plaintiff vide repeated representations dated 6.08.2013 and 10.08.2013

requested the defendants to rectify its mistake, but defendants by way of

communication dated 11.10.2013, refused to accede to the request of the

plaintiff and called upon him to deposit sum of Rs. 3, 18,525/- and as such,

plaintiff was compelled to approach competent court of law by way of civil suit,

as detailed hereinabove.

3. Defendants in their written statement refuted the claim of the

plaintiff on the ground of maintainability and locus standi. On merit, defendants

stated that plaintiff applied for enhancement of contract demand of 100 KVA to

170 KVA vide application dated 28.03.2011, which was sanctioned by the

defendants/competent authority vide order No.734-36 dated 25.4.2011 and

accordingly sundry job order (SJO) was issued on 19.12.2011 to the knowledge

of plaintiff. Defendants claimed that despite enhancement of contract demand

in favour of the plaintiff, inadvertently electricity bill could not be raised at the

enhanced rate. Hence, plaintiff is legally bound to pay amount of

.

Rs. 3, 18,525/-. Qua the competency of defendants to issue the bills of

enhanced amount defendants invited the attention of the Court to Clause 3.9 of

Electricity Supply Code 2009 and clause (1) of Sale Manual Endorsement No.

SM1-293. Besides above, defendants submitted before the Court below that

being aggrieved, if any, with the issuance of bill, plaintiff could approach Forum

for redressal of grievances of Consumers.

4. Learned trial Court on the basis of the pleadings adduced on

record by the respective parties framed the following issues:

1. Whether the plaintiff is entitled for decree of declaration to the effect that notice dated 5.8.2013 and 11.10.2013 issued by the defendants to the plaintiff are wrong, illegal, null and void to have been issued

without jurisdiction/ OPP.

                  2. Whether the plaintiff is entitled for a decree of




                      permanent     prohibitory    injunction     restraining      the
                      defendants     from    disconnecting         the     electricity

connection of the plaintiff bearing Account No.LS180, on the basis of notice dated 5.8.2013 and 11.10.2013,

as prayed for? OPP

3. Whether the plaintiff is entitled for a decree of mandatory injunction, to restore the electricity connection, if the defendants succeed in disconnecting the electricity connection, as prayed for? OPP.

4. Whether the suit of the plaintiff is not maintainable? OPD.

5. Whether the plaintiff is estopped from filing the present suit by his acts, conduct and deeds? OPD.

6. Whether the suit has been filed without cause of

.

action? OPD.

7. Whether the plaintiff has suppressed the material facts from this Court? OPD.

8. Whether this Court has no jurisdiction to entertain with the present suit? OPD.

9. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD.

10. Relief.

5. Subsequently vide judgment and decree dated 28.12.2017,

learned trial Court decreed the suit of the plaintiff. Being aggrieved and

dissatisfied with aforesaid judgment passed by learned trial Court, defendants

preferred an appeal in the Court of learned Additional District Judge-(1), Solan,

District Solan, H.P., which also came to be dismissed vide judgment and

decree dated 12.09.2019. In the aforesaid background, defendants have

approached this Court in the instant proceedings, praying therein to set-aside

the aforesaid judgments and decrees passed by learned trial Courts below.

6. Though, on 25.05.2022 this Court after condoning the delay in

maintaining the appeal at hand, issued notice to the plaintiff and listed the

matter for admission of the appeal but on 20.07.2022, learned counsel

representing the respondent vehemently argued that no question muchless

substantial arises in the instant proceedings for adjudication and as such,

appeal is not maintainable. Accordingly vide order dated 20.7.2022 case at

hand was ordered to be listed for final disposal at the admission stage.

7. I have heard learned counsel for the parties and gone through the

record carefully.

.

8. Having heard learned counsel representing the parties and

perused the material available on record vis-à-vis reasoning assigned in the

impugned judgment and decree passed by learned Additional District Judge,

this Court finds no force in the submission of learned counsel for the appellant-

defendant that learned Courts below have failed to appreciate the evidence

in its right perspective, rather this Court finds that both the courts below have

very meticulously dealt with each and every aspect of the matter and there is

no scope of interference.

9. In nutshell, the case of the plaintiff is that it had applied for 250

KW (high tension) HT with defendants and after its aforesaid prayer being

allowed, it had started its factory. Bills Ex.Px-1 to Ex.Px-25 were issued in

respect of the electricity consumed w.e.f. 13.5.2011 to 7.5.2011 and these bills

were duly paid by the plaintiff. However, dispute arose interse plaintiff and

defendants with respect to bill Ex.P26 for Rs. 4,48,996/- pertaining to the period

between 24.5.2013 to 24.6.2013. As per the plaintiff, aforesaid bill was wrongly

issued including sundry charges of Rs.3,18,525/-. Though, after receipt of

aforesaid order plaintiff deposited an amount of ₹1,21,945/- with regard to

consumption of energy in respect of the same bill, but remaining amount has

been not paid on the ground that at no point of time arrears, if any, payable

from the plaintiff were reflected in the earlier bills, which were duly paid in time.

Besides above, plaintiff claimed that its prayer for extension of load from 100

KVA to 170 KVA though was duly sanctioned, but no sundry job order was ever

issued and as such, there is no occasion for it to make payment qua the bill on

account of arrears, if any.

.

10. Though, plaintiff sent repeated representations to rectify the

aforesaid mistake but vide letter dated 10.11.2013 defendant No.1 informed

that sum of Rs. 3,18, 525/- was chargeable as per sale circular of Chief

Engineer(Commercial). Plaintiff claimed that in fact there was no enhancement

of contract demand from 100 KVA to 170 KVA and no such intimation was ever

given to the plaintiff as has been described in Ex.P40. Plaintiff claimed that it

has duly paid penalty over and above use of electricity beyond the approved

contract demand. The Application and agreement for supply of electricity

executed between the plaintiff and the defendants came to be placed on record

as Ex.Dx1 and Ex.Dx2. While ExDx1 was executed for reduction of contract

demand from 190 KVA to 100 KVA, whereas Ex.Dx2 is agreement for revision

of contract demand from 100 KVA to 170 KVA. Plaintiff vide letter Ex. DX-4

diarized on 19.12.2011 intimated the Superintending Engineer, H.P.S.E.B that

bill of electricity with new contract demand had not been received by him, but

yet defendants continued to issue bills upto June 2013 including penalty for

over user. In fact, there is no evidence ever came to be placed on record at the

behest of the defendant to prove sanction of contract demand from 100 KVA to

170 KVA. Though, letter Ex.Dx4 bears endorsement regarding issuance of

sundry job order, however said order never came to be produced before the

Court. Office Order Ex.DW2/A was issued on 25.4.2011 but DW2 Sh. Ramesh

Kumar categorically admitted before the Court below that there is no

documentary evidence to prove that said office order was communicated to the

plaintiff. Material available on record clearly reveals that on one hand

defendants kept on charging penalty for over use of electricity by the plaintiff

.

and on the other hand, they issued bill Ex.P-26, including excess charges for

revised contract demand. Most importantly, neither show cause notice was ever

issued to the plaintiff before issuance of excess amount bill nor it was shown by

the defendant that penalty already charged from the plaintiff and duly deposited

has been adjusted by them.

11. In nutshell, the case of the defendants is that charges as

mentioned in the bill Ex.P26 could not be claimed earlier inadvertently and

accordingly same were being recovered from the plaintiff. However, no

evidence was produced in order to show that revised contract demand was

brought to the knowledge of the plaintiff and as such, Courts below rightly held

defendants not entitled to recover charges from the plaintiff or threaten to

disconnect the electricity. Since, no sundry job order has been produced on

record, it cannot be concluded that bill Ex.P26 was issued in respect of the

contract demand actually made applicable to the factory run by the plaintiff.

The bills Ex.Px1 to Ex.P25 are duly issued by Senior Executive Engineer (OP

Circle), subsequent bills Ex.P27 to Ex.P32 have been issued by Senior

Executive Engineer, H.P.S.E.B.L. Information Ex.P37, office memorandum

Ex.P38 and notification Ex.P39 clearly provides that the billing strategies and

correspondence thereof including preparation of energy bills is to be done by

the Executive Engineer (Commercial). However, bill Ex.P26 whereby demand

has been raised, has been issued by Assistant Engineer, Electrical Sub

Division, Parwanoo. Since plaintiff was being continuously charged for

excessive use of electricity beyond contract demand, there was otherwise no

occasion for the defendant to issue fresh demand by way of separate bill.

.

Moreover, no show cause notice was issued to the plaintiff before raising

aforesaid demand and no break up, if any, with regard to penalty was ever

given in the show cause notice.

12. Having scanned entire evidence, be it ocular or documentary,

there appears to be no illegality committed by the Courts below while decreeing

the suit of the plaintiff and as such, no interference is called for. No question

muchless substantial arises for the adjudication.

13. Hon'ble Apex Court in Laxmidevamma and Others vs.

Ranganath and Others, (2015)4 SCC 264, wherein it has been held as

under:

"16. Based on oral and documentary evidence, both the

courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and

there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule

property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent

findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."

(p.269)

14. Aforesaid exposition of law clearly suggests that High Court, while

excising power under Section 100 CPC, cannot upset concurrent findings of

fact unless the same are shown to be perverse. In the case at hand, this Court

while examining the correctness and genuineness of submissions having been

made by the parties, has carefully perused evidence led on record by the

.

respective parties, perusal whereof certainly suggests that the Courts below

have appreciated the evidence in its right perspective and there is no

perversity, as such, in the impugned judgments and decrees passed by both

the Courts below. Moreover, learned counsel representing the appellants was

unable to point out perversity, if any, in the impugned judgments and decrees

passed by both the Courts below and as such, same do not call for any

interference.

15. Consequently, in view of the detailed discussion made

hereinabove, this Court sees no illegality and infirmity in the impugned

judgments and decrees passed by courts below, which otherwise appear to be

based upon proper appreciation of evidence and as such, same are upheld.

The present appeal fails and same is accordingly dismissed. Interim directions,

if any, are vacated. All miscellaneous applications are disposed of.

    5th September, 2022                                                (Sandeep Sharma),
          (shankar)                                                       Judges