Madras High Court
Assistant Executive Engineer ( ... vs Balu Alias T.Balasubramanian on 22 June, 2021
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S.A.No.216 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
S.A.No.216 of 2012
and M.P.No.1 of 2012
(Through Video Conferencing)
1.Assistant Executive Engineer ( Rural),
(Operation and Maintenance)
Tamil Nadu Electricity Board,
Mailaduthurai.
2.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai, Chennai. .. Appellants
vs.
1.Balu alias T.Balasubramanian
2.T.Sundaramoorthy ...
Respondents
Prayer: This Second Appeal has been filed under Section 100 of the
Code of the Civil Procedure, against the judgment and decree dated
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S.A.No.216 of 2012
30.11.2011 made in A.S.No.60 of 2010 on the file of the Additional Sub
Court, Mayiladuthurai, reversing the judgment and decree, dated
19.10.2009 made in O.S.No.247 of 2008 on the file of the Principal
District Munsif, Mayiladuthurai.
For Appellant : M/s.V.Viswanathan
For Respondents : No Appearance
JUDGMENT
This Second Appeal is directed against the judgment and decree,
dated 30.11.2011 in A.S.No.60 of 2010 passed by the Additional Sub Court,
Mayiladuthurai.
2. By the impugned judgment and decree dated 19.10.2009, the
judgment and decree passed in O.S.No.247 of 2008 by the Principal District
Court, Mayiladuthurai has been affirmed. The appellants were the
defendants and the appellants in the respective proceedings.
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S.A.No.216 of 2012
3. This appeal was not admitted after it was listed for admission. As
was the practice of this Court, this court had ordered notice of admission on
the respondents. Thus, no substantial question of law was framed for being
answered.
4. The respective counsels are present and have made submissions.
The appellants have raised the following questions of law in this appeal as
substantial questions of law:-
i) Whether the First Appellate Court is correct not in
framing an issue with regard to non-joinder of party
namely the Panchayat President?
ii) Whether the First Appellate Court is correct in not
considering Ex.B.5 filed by the appellant ?
iii)Whether the Lower Appellate Judge is right in
confirming the Judgment and decree of the Trial
Court stating that the Appellant has not handed over
the keys to the respondents?
5. The case of the respondents-plaintiffs before the Trial court was
that the respondents along with their father viz., Thangaian had started a
cottage industry under the name and style of “Bakya Rubber Factory”. They
obtained electricity service connection bearing service No.312 from the
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S.A.No.216 of 2012
appellants and ran the factory. The said power service connection stood in
the name of the father of the 1st respondent/1st plaintiff.
6. The 1st respondent took over the management of the factory
premises in August 2005 and when the appellants the Electricity Board
authorities conducted a surprise inspection and allegedly found that there
was energy theft. The respondents however blamed one Senthil S/o.Ganesan
who was the occupier of the said factory as per the lease agreement dated
20.01.2005 for the excess consumption.
7. The 1st respondent /1st plaintiff appears to have agreed to pay the
arrears of Rs.2,90,900/- in 10 equal monthly instalments along with
Rs.70,000/- towards compounding charges.
8. The 1st respondent however defaulted after paying three
instalments. The 1st respondent/1st plaintiff appears to have paid three
instalments and thereafter filed the suit in O.S.No.433 of 2005. The suit was
partly decreed and the power connection was directed to be restored after the
1st respondent/1st plaintiff cleared the arrears.
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S.A.No.216 of 2012
9. It appears that the appellants made a surprise visit to the factory of
the 1st respondent/1st plaintiff on 14.06.2007 and found that the 1st
respondent/1st plaintiff was illegally drawing power without payment of
arrears and restoration of power connection by the appellants. Since the
occupants of the factory fled fearing action, the factory was locked and the
keys were handed over to the village panchayat.
10. The appellants thereafter issued a show cause notice dated
16.06.2007 to the 1st respondent/1st plaintiff and called upon the 1st
respondent/1st plaintiff to pay for the alleged loss caused due to the theft.
11. The 1st appellant admitted the fact that the factory premises was
locked on 14.06.2007 and the key was handed over to the Panchayat Board
President as the occupants fled from the factory.
12. Since the appellants did not hand over the key of the factory to
the 1st respondent/1st plaintiff, the respondents filed O.S.No.247 of 2008 for
the following reliefs:
i) to declare the acts of the appellant in handing
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S.A.No.216 of 2012
and for not restoring the possession of the factory to the
respondents was illagal;
ii) for mandatory injunction directing the
appellants to hand over the key/keys of the factory
premises to the respondents;
iii) compensation /loss sustained by the
respondents for not restoring the possession of the
factory premises once again after the alleged inspection
and for putting them away/out of possession for the past
one year or till the keys are returned ; awarding costs for
this suit .
13. The 1st appellant filed written statement and contended that the
respondents and their brothers' son and relatives jointly continuously
committed energy theft and a criminal case was pending against them
therefore the respondents were not entitled to any relief without paying the
amounts due to the Electricity Board.
14. It was further submitted that when the criminal case was pending
before the Assistant Sessions Judge, Mayiladuthurai, the above suit was not
maintainable.
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S.A.No.216 of 2012
15. It was further submitted that respondens were not entitled to
declaration, mandatory injunction or compensation. Hence, they have prayed
for dismissal of the suit. The above suit was decreed as prayed for. Further,
appeal filed by the appellants in AS No.60 of 2013 was also dismissed.
16. The learned counsel for the appellants further submits that without
paying the arrears, the respondents once again committed theft which was
found during surprise inspection on 14.06.2008. It is submitted that the
occupier absconded from the factory. It was under those circumstances, the
factory was locked out and the key was handed over to the Panchayat Board
President.
17. I have considered the arguments advanced by the learned counsel
for both sides and I have also perused the Judgment and decree passed by
the First Appellate Court and the grounds of appeal raised by the learned
counsel for the appellants.
18. No substantial questions of law arises in this appeal. If at all, the
appellants have remedy under the provision of the Electricity Act, 2003 read
with relevant Supply Code for the energy theft committed by the
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S.A.No.216 of 2012
respondents. There are no merits in the present appeal filed by the
appellants.
C.SARAVANAN,J.
kkd
19. Therefore, this Second Appeal is dismissed as no substantial
questions of law arises for consideration in this appeal. Therefore, the
judgment and decree passed by both the Courts below is confirmed. No
costs. Consequently, connected miscellaneous petition is closed.
22.06.2021
Index : Yes / No
Internet : Yes / No
kkd
To:
1.The Additional Sub Court, Mayiladuthurai
2.The Principal District Munsif, Mayiladuthurai.
http://www.judis.nic.in
S.A.No.216 of 2012
S.A.No.216 of 2012
and M.P.No.1 of 2012
http://www.judis.nic.in
