This second appeal has been filed against the judgment and decree, dated 22.12.1992, made in A.S.No.218 of 1992, on the file of the Sub Court, Cuddalore, reversing the judgment and decree, dated 25.2.1992, made in O.S.No.741 of 1990, on the file of the Additional District Munsif Court, Cuddalore.
2. The appellants in the present second appeal were the defendants in the suit, in O.S.No.741 of 1990. The plaintiff in the suit, who is the respondent in the present second appeal, had filed the suit praying for a declaration and injunction, to declare that the demand made by the defendants for Rs.9,763/- and Rs.2,945/-, in their bill, dated 21.8.1990, is illegal and not binding on the plaintiff and for a permanent injunction restraining the defendants from collecting the said amount and from disconnecting the supply of electricity to the plaintiff's factory.
3. The plaintiff had stated that he is the proprietor of Alps Ice & Cold storage factory, situated at Imperial Road, Cuddalore. The defendants are supplying electricity to the factory belonging to the plaintiff, through the service connection No.262, (State Transport).
4. The plaintiff had further stated that the first defendant, in his letter, dated 8.3.1990, had directed the plaintiff to provide with the shunt capacitor, in respect of his service connection, before 30.4.1990, failing which, it was stated that a penal levy of 10% would be included in the bill for 1/90 and 3/90, if the cycle is relating to odd months and 2/90 and 4/90, if the cycle is for even months. Thereafter, further time was granted, upto 30.6.1990, for the providing of shunt capacitor, subject to a penal levy.
5. It has been further stated that the plaintiff had received another letter from the first defendant, dated 30.7.1990, granting seven days time. The plaintiff had sent a reply, dated 2.8.1990, to the first defendant, informing him that the shunt capacitor had been installed, as early as 27.4.1990. Thereafter, the plaintiff had received the demand of Rs.64,096/-, as electricity consumption charges. The bill amount included Rs.9,763/-, as penal levy, for 2/90, 4/90 and 6/90 and Rs.2,945/-, as short assessment, for 4/90. The plaintiff had given his explanation, by way of two letters, dated 3.9.1990, to the first defendant for which the plaintiff had received two replies, dated 6.9.1990.
6. The plaintiff had further stated that the penal levy of Rs.9,763/-, levied by the defendants, is not correct, on facts, since he had already installed the shunt capacitor, on 27.4.1990. The person, who had taken the meter reading, had not noticed the shunt capacitor, which had already been installed. Therefore, the plaintiff had made a request to the defendants to depute a technical person to inspect the factory and to note the installation of the shunt capacitor. The plaintiff had also explained in his letter, dated 3.9.1990, that the assessment of Rs.2,945/-, as short assessment, is incorrect. The method adopted by the first defendant, for such short assessment, is also incorrect.
7. The plaintiff had further stated that the representations sent by the plaintiff to the first defendant had not been considered, as per the rules and regulations of the Board. Since the first defendant was likely to disconnect the supply to the plaintiff's factory, the suit had been filed by the plaintiff, praying for the reliefs, as sought for therein.
8. The written statement filed by the first defendant has been adopted by the second defendant. The first defendant had stated that, as per the terms and conditions of the supply of Electricity, all Low Tension Consumers, with a connected load of 25 H.P. and above and all Low Tension Consumers using welding transformers had to install shunt capacitors of rating, as specified by the Board. Those, who did not install the shunt capacitors, as required by the Board, before 31.12.1989, were to be charged consumption charges, as specified in the revised terms and conditions of supply. The service of those, who did not install the shunt capacitors, within a period of two months thereafter, were to be disconnected.
9. It had been further stated that, on the representation made by the consumers, the scarcity of capacitors made by the Board, by its memo, dated 10.1.1990, had extended the time upto 30.4.1990, for installing the shunt capacitors. The consumers had been informed to duly intimate the installations to the Board. It was further stated that on the failure of the consumers to inform the Board about the installations, consumption charges would be levied at 10% of the current consumption bills, with reference to the previous two assessments. In case of odd month assessments, such levy would be made on the assessments made in 1/90 and 3/90 and in the case of even month assessments, such levy would be made on the assessments made in 2/90 and 4/90. According to the memo, if the consumers had failed to provide the shunt capacitors before the extended period i.e., 30.4.1990, they would be permitted to install the shunt capacitors, on or before 30.6.1990, subject to levy of consumption charges. On their failure to install the shunt capacitors, even after the extended date, the electricity service connection would be disconnected without any further notice and that reconnection would be done only after the installation of the shunt capacitors. In addition to the said conditions, consumption charges would also be levied on the failure to install the shunt capacitors for the further period of default, till the date of the disconnection of the service.
10. It had also been stated that a notice, dated 8.3.1990, had also been issued to the plaintiff directing him to install the shunt capacitor. Even though the said notice had been served on the plaintiff, on 9.3.1990, he had not intimated the installation of the shunt capacitor, within the permitted time. Thereafter, a notice, dated 30.7.1990, had been issued to the plaintiff stating that the electricity supply would be disconnected, if the shunt capacitor was not provided, within seven days after the receipt of the said notice. Since the plaintiff had not installed the shunt capacitor, prior to 30.6.1990, 10% penal charges had been levied on the bills of 2/90, 4/90 and 6/90, amounting to Rs.9,763/- and the charges were included in the bill of 8/90, which was payable in the month of September, 1990. Further intimation had also been given by a letter, dated 6.9.1990. However, the plaintiff had failed to pay the charges. Meanwhile, the tariff rate for the plaintiff's service connection had been increased from 1.4.1990. The assessor, who had taken the reading, in respect of the service connection of the plaintiff, on 22.4.1990, had calculated the current consumption charges for the entire period upto 22.4.1990, at the old rate. In fact, he should have calculated the amount at the old rate for the consumption of electricity, till 31.3.1990 and at the revised rate, from 1.4.1990 to 22.4.1990. The short assessment amount worked out to Rs.2,945/- and the said amount had been included in the bill for 8/90.
11. The plaintiff had wanted a clarification for the short assessment by sending a letter, dated 3.9.1990. A reply, dated 6.9.1990, giving all the particulars as to how the amount of Rs.2,945/- had been arrived at was sent to the plaintiff. Instead of paying the amounts, as intimated to him, along with the current consumption charges due for 8/90, the plaintiff had chosen to file the suit in O.S.No.741 of 1990.
12. It has been further stated that the contention of the plaintiff that he had installed the shunt capacitor, on 27.4.1990, is not correct. Further, no intimation had been received by the defendants before 30.6.1990. Therefore, the plaintiff is liable to pay the penal levy on the current consumption charges for 2/90, 4/90 and 6/90.
13. It had also been stated that the bill amount of Rs.64,096/- for 8/90 was inclusive of the current consumption charges, the penal assessment for non- installation of the shunt capacitor till 30.6.1990 and the short assessment for the period, from 1.4.1990 to 22.4.1990. In the suit filed by the plaintiff, he has questioned only the penal levy and the short assessment. He had not questioned the current consumption charges. Therefore, the plaintiff was liable to pay the current consumption charges before 15.9.1990, in spite of his obtaining an order of interim injunction in the suit. A notice, dated 14.9.1990, had been issued to the plaintiff demanding the current consumption charges of Rs.51,385/-. Since the plaintiff had sent a reply, dated 17.9.1990, containing an erroneous and untenable interpretation of an order of injunction granted in his favour and since the plaintiff failed to pay the amount demanded from him, his service connection was disconnected for the non-payment of current consumption charges, on 20.9.1990. Since the amount demanded from the plaintiff are in conformity with the rules and the regulations of the Board, he is liable to pay the amounts to the Tamil Nadu Electricity Board. Further, the suit filed by the plaintiff has not been properly valued and the correct court fee has not been paid. Further, the suit filed by the plaintiff is not maintainable, as it had been filed without exhausting the remedies provided under the relevant provisions of law. Hence, the suit is liable to be dismissed.
14. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
"1. Whether the plaintiff is entitled to a relief of permanent injunction against the demands for a sum of Rs.2,945/- and Rs.9,763/- by the notice, dated 21.3.1990?
2. Whether the court fee for the suit had been paid correctly?
3. What other reliefs, the plaintiff is entitled to ?"
15. Exhibits A.1 to A.9 had been filed on behalf of the plaintiff and Exhibits B.1 and B2 had been filed on behalf of the defendants. One witness had been examined on behalf of the plaintiff. The plaintiff had not adduced any evidence, either documentary or oral, in support of his claims.
16. After analysing the evidence on record, the trial Court had come to the conclusion that the demand made by the defendants, asking the plaintiff to pay a sum of Rs.2,945/-, is correct, as the calculation of the amount had been done properly. It was also held that the plaintiff is liable to pay a sum of Rs.9,763/-, as determined by the defendants. Since the plaintiff had obtained an order of interim injunction only in respect of the demand of Rs.9,763/- and Rs.2,945/-made by the defendants, and since the plaintiff had no objection in paying the amount of Rs.51,388/-, the trial Court had come to the conclusion that the plaintiff was liable to pay the said amounts to the Tamil Nadu Electricity Board. Even though it had been stated by the plaintiff that he had installed the shunt capacitor, as early as on 27.4.1990, as stated in his letter, dated 2.8.1990, he had admitted in his evidence that he had not intimated the Tamil Nadu Electricity Board about the said installation.
17. The trial Court had held that the claim of the plaintiff that he had already installed the shunt capacitor and that the persons, who had come to his building to note the electricity meter reading, had not noticed the shunt capacitor that had been installed, had to be proved by the plaintiff by sufficient evidence. He had not filed any document in support of his claims. The fact that the plaintiff had raised the issue only after four months from the time the defendants had levied an amount of Rs.9,763/-, as the penal charges to be paid by the plaintiff, shows the negligent attitude of the plaintiff. In fact, if the plaintiff had installed the shunt capacitor, on 27.4.1990, he would have informed the defendants, immediately thereafter, about the said installation.
18. The trial Court had further held that it would not be practicable for the Tamil Nadu Electricity Board to inspect the premises of all the consumers of electricity and to verify whether they had installed the shunt capacitor. The trial Court had further held that it was open to the plaintiff to have challenged the demand made by the defendants, by way of an appeal, as provided under the relevant provisions of law. The trial Court had further found from Exhibit B.1, which is a communication sent to the plaintiff, from the office of the defendants, that the plaintiff had to pay an amount of Rs.51,388/-, apart from the amounts of Rs.9,763/- and Rs.2,945/-, within 24 hours, failing which, it was stated that the electricity service would be disconnected. However, it was admitted by the plaintiff that the electricity service connection had been disconnected by the defendants only after 7 days from the date of the said communication.
19. It was further held that even though the court fee paid by the plaintiff is correct, he is not entitled to the reliefs, as prayed for in the suit. Accordingly, the trial Court had dismissed the suit, by its judgment and decree, dated 25.2.1992, made in O.S.No.741 of 1990.
20. Aggrieved by the judgment and decree of the trial Court, dated 25.2.1992, made in O.S.No.741 of 1990, the plaintiff in the suit had filed a first appeal on the file the Sub Court, Cuddalore, in A.S.No.218 of 1992. The first appellate Court had framed the following points for consideration:
"1. Whether the appellant had proved that he had installed the shunt capacitor by way of Exhibit A.5?
2. Whether the appeal is liable to be allowed?"
21. After analysing the contentions raised on behalf of the appellant, as well as the defendants and on analysing the evidence available on record, the first appellate Court had reversed the findings of the trial Court, by its judgment and decree, dated 22.12.1992, made in A.S.No.218 of 1992.
22. The first appellate Court had found from the Exhibit, marked as A.1, that the plaintiff had been informed that he had to install the shunt capacitor by 30.4.1990. Later, the time limit prescribed had been extended upto 30.6.1990. However, there was no intimation to the plaintiff that he had to inform the Tamil Nadu Electricity Board after the installation of the shunt capacitor. Even in Exhibit A.3, it was intimated that the shunt capacitor had to be installed, within 7 days from the date of the said intimation. It was also made clear that on the failure of the plaintiff to install the shunt capacitor, as stipulated by the Board, the electricity service connection of the plaintiff would be disconnected.
23. It was also found that in spite of the plaintiff having informed the defendants, by way of the Exhibits A.4 to A.6, the defendants, had not inspected the service connection of the plaintiff to find out as to whether the shunt capacitor had already been installed, as claimed by the plaintiff. The first appellate Court had not accepted the contention of the defendants that it is not possible for the Board to verify as to whether all the consumers of electricity had installed the shunt capacitors. In such circumstances, the first appellate Court had found that the findings of the trial Court were incorrect. Therefore, the first appellate Court had reversed the findings of the trial Court, by its judgment and decree, dated 22.12.1992, made in A.S.No.218 of 1992.
24. Aggrieved by the judgment and decree of the first appellate Court, the defendants in the suit and the respondent in the first appeal had filed the present second appeal before this Court. This court had admitted the second appeal on the following substantial questions of law:
"Whether the evidence and the admitted plea of the parties has been totally misconstrued by the lower appellate Court while delivering the impugned judgment under this appeal, in the context that the Appellant Board is not entitled to levy the penalty for the reasons attributed to?"
25. The learned counsel appearing for the appellants had submitted that the judgment and decree of the lower appellate Court is contrary to law and the facts of the case. It was also submitted that the lower appellate Court had erred in coming to the conclusion that it is the duty of the appellants to check as to whether the respondent had installed the shunt capacitor, as claimed by him. The lower appellate Court ought to have held that it is the duty of the respondent, who was the plaintiff in the suit, to inform the appellants about the installation of the shunt capacitor. As it is clear, as per the terms and conditions of the supply, non-installation of the shunt capacitor would attract a penal levy of 10% on the defaulting consumer.
26. It was also contended that the lower appellate Court had erred in holding that the assessment made by the appellants is incorrect. The lower appellate Court ought to have held that Exhibit A.1 is valid and binding on the respondent. Since the respondent had not adduced any evidence, either oral or documentary, his claim that the shunt capacitor had already been installed, cannot be believed. As such, the first appellate Court ought to have confirmed the judgment and decree of the trial Court.
27. Per contra, the learned counsel appearing for the respondent had submitted that the first appellate Court was right in coming to the conclusion that it is the duty of the appellants to verify the claims of the respondent that he had installed the shunt capacitor, as prescribed by the Board. The respondent cannot be penalised for the default of the appellants in failing to verify as to whether the shunt capacitor had already been installed, as claimed by the respondent.
28. The learned counsel appearing for the respondent had further submitted that there was no intimation from the appellants that the respondent had to inform about the installation of the shunt capacitor. In such circumstances, the second appeal is liable to be dismissed.
29. In view of the submissions made by the learned counsels appearing for the appellants, as well as the respondent and on analysing the evidence available on record, this Court is of the considered view that the judgment and decree of the first appellate Court, made in A.S.No.218 of 1992, reversing the judgment and decree of the trial Court, dated 25.2.1992, made in O.S.No.741 of 1990, is unsustainable.
30. It is clear that the trial Court had come to the correct conclusion by holding that it is for the plaintiff to prove that he had installed the shunt capacitor in respect of the service connection No.262, (State Transport) in his factory, according to the direction issued by the Tamil Nadu Electricity Board. However, it is clear that there was no oral or documentary evidence to substantiate his claim that he had installed the shunt capacitor and that he had informed about such installation.
31. It is also clear, from the evidence available on record that the plaintiff had not informed the defendants about the installation of the shunt capacitor. By merely saying that the staff of the Tamil Nadu Electricity Board, who had come to the premises to take the electricity meter reading, in respect of the plaintiff's service connection, had failed to note the fact that the shunt capacitor had already been installed, cannot be put against the defendants, as a defence by the plaintiff. Even though it was made clear that a penal levy of 10% would be levied on the current consumption charges, on the failure of the plaintiff to install the shunt capacitor, within the specified time, the plaintiff had not shown sufficient care to inform the defendants about the installation of the shunt capacitor. Further, the plaintiff could have availed the appeal remedy provided under the relevant provisions of law.
32. As such, the conclusion arrived at by the trial Court that the plaintiff had failed to discharge the onus of proof, in establishing his claim that he had already installed the shunt capacitor, as directed by the Tamil Nadu Electricity Board and that he was liable to pay the amount, as claimed by the defendants, is correct. Therefore, the findings of the first appellate Court that the defendants had failed to take note of the fact that the plaintiff had installed the shunt capacitor, as directed by the Tamil Nadu Electricity Board, cannot be sustained. Therefore, the trial Court had rightly dismissed the suit filed by the plaintiff.
33. In such circumstances, this Court is of the considered view that the judgment and decree of the first appellate Court, dated 22.12.1992, made in A.S.No.218 of 1992, is liable to be set aside. Hence, the judgment and decree of the first appellate Court, dated 22.12.1992, made in A.S.No.218 of 1992, is set aside and the judgment and decree of the trial Court, dated 25.2.1992, made in O.S.No.741 of 1990, is restored. Accordingly, the second appeal stands allowed. No costs.
lan To:
1. The Sub Court, Cuddalore
2. The Additional District Munsif Court, Cuddalore