Madras High Court
The Superintending Engineer vs M/S.Jothees Trading Corporation on 23 June, 2023
W.A.(MD)No.211 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A.(MD)No.211 of 2013
and
M.P.(MD)No.1 of 2013
The Superintending Engineer,
Madurai Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Pudur, Madurai. ... Appellant / 1st Respondent
Vs.
1.M/s.Jothees Trading Corporation,
3/4, Narasingampatti Village,
Arittapatty Road, Melur Taluk,
Madurai District,
Represented by its Proprietor R.Jothi. ... 1st Respondent / Writ Petitioner
2.S.V.Arunachalam
3.M/s.Sree Kaderi Ammal Steels Ltd.,
Represented through one of its Director,
Alagammal. ... Respondents 2 & 3 /
Respondents 2 & 3
(R3 impleaded as party respondent vide Court order dated 28.02.2012 in
M.P.(MD)No.2 of 2011)
1/11
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W.A.(MD)No.211 of 2013
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying this
Court to set aside the order dated 08.01.2013 made in W.P.(MD)No.12691
of 2011 on the file of this Court.
For Appellant : Mr.S.Deenadhayalan,
Standing Counsel
For R1 : Mr.S.Manikandan
For R2 : Mr.S.Karthik
For R3 : No Appearance
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This Writ Appeal has been directed against the order passed by
the Writ Court dated 08.01.2013 made in W.P.(MD)No.12691 of 2011.
2.The 1st respondent had sought for a commercial service
connection from the appellant, for which all formalities have been complied
with by the 1st respondent, including the payment like security deposit,
earnest money deposit and other charges.
3.The papers in this regard having been scrutinized the appellant
had come forward to communicate to the 1st respondent to comply with
certain more conditions, which also had been complied with.
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W.A.(MD)No.211 of 2013
4.At this juncture, despite such compliance, the appellant seems to
have insisted upon to get a No Objection Certificate from the erstwhile
partners or partners of the company otherwise to file indemnity bond by
making double the payment of the security deposit. In this context, the said
demand made by the appellant was not in consonance with the TNERC
Distribution Code as well as it is against the practice hitherto being adopted
by the appellant in respect of extending service connection.
5.Therefore, aggrieved over the same, by challenging the
communication of the appellant dated 17.09.2011, the 1st respondent filed
the said Writ Petition and the same was heard and disposed of by the
learned Single Judge through the impugned order dated 08.01.2013,
wherein the learned Single Judge, after having considered the merits of the
case, directed the appellant to return the deposited amount of Rs.24,80,500/-
(Rupees Twenty Four Lakhs Eighty Thousand and Five Hundred Only) to
the writ petitioner within a period of four weeks.
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W.A.(MD)No.211 of 2013
6.Assailing the said order passed by the learned Single Judge, the
learned Standing Counsel for the appellant submitted that the said direction
issued by the learned Single Judge in the impugned order is against Clause
34 of TNERC Distribution Code. Therefore, on that ground, the order
impugned can be successfully assailed, he contended.
7.We have heard the matter twice, firstly on 07.06.2023 and again
on 16.06.2023.
8.After hearing both sides elaborately, on 16.06.2023, we passed
the following order:-
“In response to our earlier order dated 07.06.2023,
the learned counsel for the 1st respondent / consumer, who made
an application to get service connection from the appellant, has
filed typed set of documents, where an undertaking letter has
been given by the 1st respondent / consumer dated 18.02.2011.
Thereafter, a demand has been made to make payment of
registration charges of Rs.500/- (Rupees Five Hundred Only)
and Earnest Money Deposit of Rs.24,80,000/- (Rupees Twenty
Four Lakhs and Eighty Thousand Only), totally, a sum of Rs.
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W.A.(MD)No.211 of 2013
24,80,500/- (Rupees Twenty Four Lakhs Eighty Thousand and
Five Hundred Only) was demanded by the letter dated
26.03.2011, which was remitted by the 1st respondent on
29.03.2011 by way of Demand Draft and receipt to that effect
has been issued by the appellant TANGEDCO on 30.03.2011.
Thereafter, the 1st respondent had written a letter, stating the
details of the property, ownership etc., and sought for extension
of service connection and along with the said letter,
encumbrance certificate as well as the certificate issued by the
Sub-Registrar concerned with patta copy had also been
produced.
2.On the basis of these documents, the appellant
TANGEDCO had written a letter dated 21.07.2011 to the 2nd
respondent, who had objected for extension of service
connection to the 1st respondent Company that had also been
replied. Thereafter, the appellant TANGEDCO, by a letter dated
12.09.2011 had stated to the 1st respondent that in view of the
subsequent documents filed by the 1st respondent, a letter had
been issued to the 2nd respondent for producing the latest
document. However, he has not come forward to produce any
latest documents. Therefore, as per Clause 27(4) of TNERC
Distribution Code, the Co-Directors' / Owners' consent must be
required for further proceedings on application or undertaking
to be obtained in Rs.80/- stamped paper as in Form 6 of TNERC
Distribution Code along with the security Deposit twice the
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W.A.(MD)No.211 of 2013
normal rate from the prospective consumer.
3.By citing this the appellant requested the 1st
respondent to produce consent of other co-owners of the lesser
company or the resolution passed if any in this regard or
otherwise, furnish an undertaking in Rs.80/- stamped paper in
Form 6 and also to pay security deposit twice the normal rate
immediately.
4.It is the contention of the learned counsel for the 1st
respondent that already an undertaking affidavit in Rs.100
stamped paper has been executed on 18.02.2011. Insofar as the
security deposit is concerned, they have not stated what is the
normal rate and what is the amount to be deposited for security
deposit. Without even disclosing anything, they had simply given
the letter, thereafter, despite the request made by the 1st
respondent, service connection has not been given.
5.In view of the same, Clause 34 of TNERC
Distribution Code as sought to be implemented or invoked
against the 1st respondent by the appellant may not be justifiable.
Thereafter, to that extent, the reason given by the learned Single
Judge through the impugned order passed by the Writ Court is to
be fully justified. Therefore, we are of the view that this Writ
Appeal has to fail.
6.Only at this circumstance, the learned Standing
Counsel for the appellant seeks further a week time to get
instructions as to whether the appellant is ready and willing to
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W.A.(MD)No.211 of 2013
return the deposited amount immediately.
7.We feel that if at all the deposited amount to be
refunded immediately, the same shall be refunded to the 1st
respondent with interest at the rate of 18% per annum. Further,
if the appellant voluntarily comes forward to refund the same by
compliance of the order of the Writ Court, which is impugned
herein, we feel that the rate of interest either can be reduced or
even waived after getting views of the 1st respondent in this
regard, otherwise we feel that the said EMD deposited by the 1st
respondent to the appellant shall be refunded with interest at the
rate of 18% per annum.
8.Before passing the order, as requested by the learned
Standing Counsel for the appellant, we give a week time to
respond in writing. For the aforestated purpose, post the matter
on 23.06.2023 under the caption 'for orders'.”
9.Pursuant to these developments, when the Writ Appeal is taken
up for hearing today further, the learned Standing Counsel for the appellant
has submitted that the appellant has decided to refund the earnest money
deposit in toto forthwith to the 1st respondent ie., the writ petitioner and in
this context, the appellant has given the following written statement:-
“ Written Statement
The Writ Appeal WA(MD)No.211 of 2013 was filed by
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W.A.(MD)No.211 of 2013
TANGEDCO against the order of learned single judge in WP.
(MD)No.12691 of 2011 on 08.01.2013 filed by M/s.Jothees
Trading corporation Ltd. In this regard, after getting
concurrence from HQ as per the direction of court order dated
16.06.2023, it is decided to refund the EMD by compliance of
the order of the Writ Court. The EMD amount of Rs.24,80,500/-
(Rupees Twenty four lakhs Eighty thousand and five hundred
only) already paid by M/s.Jothees Trading Corporation will be
refunded. Action is being taken towards the refund.
SUPERINTENDING ENGINEER,
Madurai Elecy.Distn.Cicle
Tamilnadu Generation and Distribution
Corporation Limited, Madurai-7.”
10.Relying upon this written statement given by the appellant, the
learned Standing Counsel for the appellant would submit that soon the said
amount of Rs.24,80,500/- would be refunded to the 1 st respondent and since
the appellant has voluntarily come forward to refund the same, after having
gone through the order dated 16.06.2023, no interest can be imposed on the
appellant.
11.We have considered the said submissions made by the learned
Standing Counsel for the appellant as well as the learned counsel for the 1st
and 2nd respondents.
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W.A.(MD)No.211 of 2013
12.Even though the 1st respondent is entitled for normal interest in
getting back the earnest money deposit amount, we feel that in order to give
a quietus to the issue, as the appellant has come forward to settle the amount
immediately and this has been committed in writing by the appellant, this
Writ Appeal can be disposed of with the following order:-
(i) that the order impugned passed by the learned Single Judge is
to be sustained, accordingly, it is sustained. Hence, this Writ Appeal is
liable to be dismissed, accordingly, it is dismissed;
(ii)As a result of which, the written undertaking / statement given
by the appellant is taken on record. Accordingly, the appellant shall refund
a sum of Rs.24,80,500/- to the 1st respondent by way of Demand Draft or
Cheque within a period of two weeks from the date of receipt of a copy of
this order; and
(iii)In view of the said gesture shown by the appellant by coming
forward to settle the entire amount within a period of two weeks, the said
amount would not carry any interest. Within a period of two weeks, if the
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W.A.(MD)No.211 of 2013
said amount is not paid by the appellant, certainly, it would carry interest at
the rate of 12 % per annum till the appellant makes the payment in
complete. No costs. Consequently, connected miscellaneous petition is
closed.
(R.S.K., J.) & (K.K.R.K, J.)
23.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
MYR
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.211 of 2013
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
MYR
W.A.(MD)No.211 of 2013
23.06.2023
https://www.mhc.tn.gov.in/judis
