(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 04.06.2003 passed in A.S.No.85 of 2002 on the file of the Additional District and Sessions Judge, Fast Track Court- II, Ranipet, confirming the Judgment and Decree dated 17.12.1993 passed in O.S.No.228 of 1988 on the file of the District Munsif Court, Arakkonam.)
1. In this second appeal, challenge is made to the Judgement and Decree dated 04.06.2003 passed in A.S.No.85 of 2002 on the file of the Additional District and Sessions Judge, Fast Track Court- II, Ranipet, confirming the Judgment and Decree dated 17.12.1993 passed in O.S.No.228 of 1988 on the file of the District Munsif Court, Arakkonam.
2. The second appeal has been admitted on the following substantial question of law:
'Whether the Courts below were correct in passing the judgment in favour of the plaintiff by not appreciating the evidence by recording a finding that the amounts due to the appellants were penalty, while the evidence was otherwise?'
3. Considering the scope of controversies between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. Suffice to state that the plaintiff has levied the suit against the appellants/defendants seeking for the relief of declaration that the notice dated 27.07.1988 issued by the second defendant is illegal, invalid and not binding upon the plaintiff and for the relief of permanent injunction restraining the defendants, their men, agents and people from disconnecting the suit service connection bearing S.C.No.511/'C' Zone.
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/>5. It is found that the defendants Board by way of the notice dated 27.07.1988 marked as Ex.A4 observing that there is a short fall amount of Rs.9905.90 in C.C. Charges of the plaintiff's theatre due to non adjustment of excess consumption over the quota for the relevant months i.e. for the period from 08/76 to 05/77 for the service connection of the plaintiff's theatre and accordingly, detailing the shortfall as mentioned in the abovesaid notice, directed the plaintiff to make the payment of the arrears along with the CC charges within 30 days from the date of receipt of the same, failing which, the service connection of the theatre is liable to be disconnected.
6. Though the plaintiff would claim that he has been consuming the current consumption only as per the quota level and not exceeded the quota level of any period, however, would also state that the defendants board had billed the consumption made by the plaintiff over the quota of the previous months inclusive of the penalty charges in the succeeding months and the plaintiff has been paying the bills without any default and hence, it is the case of the plaintiff that the notice issued by the defendants board marked as Ex.A4 alleging excess consumption over the quota level for the period in question is misconceived and therefore, according to him, the defendants board is not entitled to disconnect the service connection and further, it is also contended that the claim of the charges by the defendants board by way of Ex.A4 is time barred and therefore, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
7. Per contra, the defendants board have contended that inasmuch as the plaintiff had consumed excess energy over and above the quota during the relevant period and accordingly, the same having come to the knowledge of the defendants board, the defendants board had calculated the charges due with reference to the same plus the penalty charges and accordingly, issued the notice marked as Ex.A4 demanding the same from the plaintiff, failing which, the service connection would be disconnected and therefore, according to the defendants board, they are entitled to collect the charges with reference to the excess consumption of energy made by the plaintiff in excess of the quota allotted to the theatre and therefore, the suit laid by the plaintiff is not maintainable.
8. Based on the oral and documentary evidence adduced by the respective parties, the Courts below had accepted the plaintiff's case only on the point of limitation holding that the demand made by the defendants' board under Ex.A4 notice is time barred and accordingly, granted the reliefs sought for by the plaintiff. Impugning the same, the present second appeal has come to be laid.
9. The Counsel for the defendants board contended that in similar situations, this Court had already held that the defendants' action in making the demand of the arrears could not be stifled on the point of limitation and it is his contention that the defendants board's authority to disconnect the service connection on the failure of the consumer to pay the amount due to the board cannot be restrained in any manner by invoking the provisions of the limitation Act and in this connection, he placed strong reliance upon the decisions reported in 1997 (III) CTC 527 (Asmath Begum Vs. The Superintending Engineer, Tamil Nadu Electricity Board, Mattur and others), 2000 (I) CTC 181 (Raniammal and 2 others Vs. Divisional Electrical Engineer, Tamil Nadu Electricity Board, Kumbakonam and another), and (1997) 9 Supreme Court Cases 465 (Swastic Industries Vs. Maharashtra State Electricity Board).
10. On a perusal of the decision reported in 1997 (III) CTC 527 (Asmath Begum Vs. The Superintending Engineer, Tamil Nadu Electricity Board, Mattur and others), it is found that the facts of the case covered in the said decision are more or less identical to the case at hand and it is found that the said case also, the defendants board's notice demanding the arrears had been rejected by the trial Court on the point of limitation, however, the same had been set aside by the first appellate Court and challenging the same, the plaintiff therein had preferred the second appeal and in the said matter, this Court, considering the board's power to demand the arrears due to it for the power consumption made by the consumer and the authority conferred on the board to disconnect the supply as directed under the Electricity Act, outlined the issues involved therein in the following manner:
'Electricity Act, 1910, Sections 20 and 24 Suit for Declaration that penal charges levied by Electricity Board is illegal and beyond period of limitation prescribed under limitation Act Period of limitation prescribed in limitation Act is not applicable to Electricity Board for invoking power under Section 20 of the Act Word Due occurring in Section 24 would take within its fold monies payable eventhough their recovery may be bared by law of limitation. (para 6)
Limitation Act, 1963 Applicability to amount recoverable under Electricity Act Law of limitation is applicable to and only governs action instituted before competent civil court or before statutory authority Law of limitation does not have the effect of destroying right secured under Electricity Act Right to recover arrears due to Electricity Board cannot be lost by any period of limitation stipulated in Limitation Act Provisions contained in Section 24 is special provision to safeguard interest of Electricity Board Amount due to Board could not be prevented from being recovered by having recourse to Section 24 of Electricity Act. (para 6)
Law of Injunction Injunction Grant of injunction Injunction cannot be granted to supersede or to run against specific mandate of statute Trial Court committed grave error inn decreeing suit thereby preventing Board from invoking statutory provisions enacted by Parliament conferring specific right to Board. (para 6)
Electricity Act, 1910, Section 24 Power of disconnection and dismantling of installation for non-payment of dues Power is not lost by any period of limitation stipulated in Limitation Act.
. . . . . . . It is by how well settled that the law of limitation as contained in the Limitation Act is applicable to and governs only actions or causes instituted before a competent civil court or before any other statutory authority to which the Limitation Act is rendered applicable, in processing or adjudicating such claims for being entertained or sustained. It is equally well settled that the law of limitation does not have the effect of destroying the right itself but it only disables the holder of such a right beyond a particular period stipulated in the law of limitation to have recourse to the Courts constituted to enforce or vindicate such right, which as per the law of limitation is said to be barred. In other words the avenue for enforcement of such right only in foreclosed. So far as the Electricity Board is concerned, the rights secured to them under Section 24 of the Indian Electricity Act cannot be ignored or denied. The disconnection or even dismantling under Section 20 of the Act of the installations, ultimately, which is available for the Electricity Board to ensure recovery of arrears due to them, cannot be said to have been lost by any period of limitation stipulated in the Limitation Act and the provisions contained in Section 24 being a special provision to safeguard the interest of the Electricity Board, a public undertaking, cannot be construed in a manner such to defeat the legislature intendment itself. It is not a condition precedent that the amount due from the consumer concerned must also be such, which should not have been barred by limitation, if a suit for recovery thereof is filed by the Electricity Board. Whether the remedy available to the Board under Sections 20 and 24 of the Act. On the other hand, the word "due" used in Section 24 would take within its fold to mean of monies owed and payable even though their recovery may be barred by the law of limitation, thus viewed, the amount indisputably payable could not be avoided to be paid or could not be prevented from being recovered by Board having recourse to Section 24 of the Act by the Electricity Board. If that be the correct position of law and in my view. It is so then it is not given to the appellant to seek a permanent injunction restraining the Electricity Board from recovering the amount due to the Board by having recourse to penal and coercive action of the nature envisaged under Section 24 of the Act cannot be any injunction granted to operate or run against specific mandate of the statue and the learned trial Judge committed a grave error in decreeing the suit as prayed for in such wide terms thereby preventing the Electricity Board from invoking a statutory provision enacted by the Parliament conferring a specific right upon the Board and its servants there is no inbuilt condition as a prerequisite for the Board to have recourse to Section 24 of the Act to prove that the claim or amount due and is sought to be recovered, if claimed before the civil court would also be decreed and would not be barred by limitation under the general law of limitation. Such considerations about the bar of limitation in an action for recovery before a civil court is a totally irrelevant factor in adjudging the right of the Electricity Board to have recourse to Section 24 of the Act. Consequently, I see no illegality or infirmity in the view taken by the learned First Appellate Judge.'
11. The abovesaid decision had been also followed by this Court in the decision reported in 2000 (I) CTC 181 (Raniammal and 2 others Vs. Divisional Electrical Engineer, Tamil Nadu Electricity Board, Kumbakonam and another) as above adverted to. Similarly, the apex Court also in the decision reported in (1997) 9 Supreme Court Cases 465 (Swastic Industries Vs. Maharashtra State Electricity Board) has held that the limitation Act does not take away the right conferred on the board provided under Section 24 of the Electricity Act, 1910 to make demand for payment of the charges and on neglecting to pay the same, they have the power to disconnect the supply or cut off the supply, as the case may be, when the consumer neglects to pay the charges and further held that the abovesaid intendment appears to be that the obligations are mutual and the board would supply the electrical energy and the consumer is under corresponding duty to pay the sum due towards the electricity consumed and accordingly, held that the Electricity Board could exercise the power of disconnecting the supply in the event of consumer neglecting to pay the amount due to the electricity board without taking recourse to filing of the suit to recover the same.
12. Insofar as this case is concerned, though it is contended by the plaintiff that he had not consumed electricity beyond the quota fixed and even if the current consumption had been made beyond the quota allowed, the charges, with reference to the same, had been remitted by the plaintiff in the subsequent months and therefore, the demand made by the board under Ex.A4 is not sustainable, however the same, as such, cannot be accepted. When it is found that there is no material placed by the plaintiff to evidence that the demand made by the board under Ex.A4 notice has been remitted by him in the subsequent months for the consumption of electricity availed during the relevant period, and that apart, though the plaintiff's son examined as PW1 would claim that the amount demanded by way of Ex.A4 notice had been paid by them, however, as above seen no proof with reference to the same, has been placed and that apart, it has also been admitted by PW1 that they are liable to pay the penalty for the current consumption beyond the quota and according to him, he is not aware whether they had paid any penalty amount for the current consumption by them beyond the quota and also admitted that it is not their case that they had paid the penalty amount, it is thus found that the plaintiff had been consuming the current consumption beyond the quota and accordingly, the charges, with reference to the same, had been collected by the board then and there and even so, the wrong committed due to non adjustment of the current consumption of the plaintiff beyond the quota during the subsequent period resulted in the short fall, it is found that accordingly, the demand has been made under Ex.A4 notice and when the amount demanded by way of the said notice has not been shown to be paid by the plaintiff by placing the relevant receipt or proof, it is found that the plaintiff cannot be allowed to escape from the consequences of the failure in the payment of the amount demanded by the defendants board from him vis-a-vis the consumption of electricity during relevant period.
13. In such view of the matter, it is found that the amount demanded by the defendants board by way of Ex.A4 notice is due to the electricity board as such and accordingly, it is found that the Courts below had also accepted the plaintiff's case not on the point that the amount due under Ex.A4 notice is not liable to be paid by the plaintiff and on the other hand, they had accepted the plaintiff's case only on the point of limitation. However, when it is noted that the limitation Act would not preclude the defendant board from initiating necessary action in making the demand from its consumers to pay the amount due to them for the electricity consumption for any period as per the Act and accordingly, when it is seen that the notice marked as Ex.A4 has come to be issued by the electricity board in accordance with law, the Courts below are not justified in upholding the plaintiff's case on the point of limitation as abovenoted. Considering the authorities placed by the board's counsel, it is seen that the board would be competent to demand the amount due to it for the consumption of electricity by the consumer and also threaten to disconnect the energy, in the event of the failure of the same, as per the Act. It is thus found that the Courts below had erred in upholding the plaintiff's case without appreciating the materials placed on record in the proper perspective as well as not following the authorities in the proper perspective projected before them that the bar of limitation would not operate as against the impugned notice. In the light of the above discussions, the substantial question of law formulated in the second appeal is answered against the plaintiff and in favour of the defendant board.
In conclusion, the Judgement and Decree dated 04.06.2003 passed in A.S.No.85 of 2002 on the file of the Additional District and Sessions Judge, Fast Track Court- II, Ranipet and the Judgment and Decree dated 17.12.1993 passed in O.S.No.228 of 1988 on the file of the District Munsif Court, Arakkonam are set aside and the suit laid by the plaintiff in O.S.No.228 of 1988 is dismissed with costs. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.