Madras High Court
Tamil Nadu Electricity Board vs R. Thangavelu on 26 March, 2019
Author: V.Bharathidasan
Bench: V.Bharathidasan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.03.2019
CORAM
THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN
Second Appeal No.371 of 2019
and
C.M.P.No.5462 of 2019
1. Tamil Nadu Electricity Board,
rep. by its Superintending Engineer,
Salem Electricity Distribution Circle,
Udayapatty, Salem Taluk and District.
2. Tamil Nadu Electricity Board,
rep. by its Assistant Executive Engineer,
(Distribution) Mallur - 636 203,
Salem Taluk and District.
3. Tamil Nadu Electricity Board,
rep. by its Assistant Engineer,
Urban (Operation and Maintenance),
Mallur - 636 203,
Salem Taluk and District ... Appellants
Vs.
R. Thangavelu ... Respondent
Prayer:- This second appeal has been filed under Section 100
C.P.C., against the judgment and decree dated 30.09.2011 made
in A.S.No.5 of 2011 on the file of the Sub Court, Rasipuram,
reversing the judgment and decree dated 10.11.2010 made in
O.S.No.95 of 2009 on the file of the District Munsif Court,
Rasipuram.
http://www.judis.nic.in
2
For Appellants : Mr. V. Viswanathan
For respondent : Mr. P.Veenasuresh
JUDGEMENT
The appellants are defendants in O.S.No.95 of 2009 on the file of the District Munsif Court, Rasipuram.
2. The respondent / plaintiff has filed a suit for declaration to declare that the assessment notice issued by the third respondent as null and void and also for an injunction restraining the defendants from disconnecting the service connection. The suit was dismissed by the trial Court on 10.11.2010. Against which, the plaintiff filed an appeal in A.S.No.5 of 2011 before the Sub Court, Rasipuram and the appellate Court by judgment and decree dated 30.09.2011 allowed the appeal and thereby, decreed the suit. Aggrieved over the same, the present Second Appeal has been filed.
3. The case of the plaintiff is as follows:-
The plaintiff is the owner of the Rice Mill having service connection in No.117-3B. The plaintiff purchased the Rice mill in http://www.judis.nic.in the year 2008. At that time, the Rice Mill is having sanctioned 3 load for 10 Horse Power (H.P.) Motor. After purchase, the plaintiff applied additional load for 14 H.P Motor instead of 10 H.P Motor, and it was also sanctioned. Subsequently, new motor was also fixed on 01.08.2008. Thereafter, the said Rice Mill was leased out to some third parties in the month of March 2009, and the mill was not running till March 2009. The plaintiff continued to pay the minimum charges to the electricity board. Now, all of a sudden, a demand notice has been issued to the plaintiff stating that there was a defect in the Motor and it was not functioning properly. Therefore, the defendants directed the plaintiff to pay a sum of Rs.32,158/-, after deducting the minimum charges paid by the plaintiff. Challenging the above notice, the suit has been filed.
4. The defendant-Electricity Board contested the suit by filing a written statement stating that, at request of the plaintiff, the sanctioned power has been increased from 10 H.P. to 14 H.P. When the officials of the Electricity Board visited the Rice Mill for taking meter reading, the Rice Mill was closed. Hence, they have calculated the minimum charges at the rate of Rs.1580/- per month. In the month of March 2009, when the defendant http://www.judis.nic.in officials went to the plaintiff mill for taking meter reading, the 4 glass fixed in the meter was smudged and meter reading was not visible. At that time, the mill was not running, thereafter, on 15.04.2009, the meter was removed from the plaintiff's premises and sent for examination to the Meter and Relay Testing (MRT) Department. The report filed by the MRT department shows that, the meter was functioning properly. However, the plaintiff has only paid the minimum charges. Hence, the demand notice has been issued.
5. The trial Court dismissed the suit. Challenging the Judgment and Decree, the plaintiff filed an appeal. After considering the entire materials, the First Appellate Court has come to a conclusion that the Rice Mill was not running upto March 2009, and, the plaintiff was only paying the minimum demand charges. Even P.W.2, the lessee has also stated that mill was leased out in the month of March 2009, and there was a defect in the meter. According to the defendant, the meter was sent for testing to the MRT department and obtained a report that there is no fault in the meter. However, before removing the meter and sending it for testing, it was not informed to the plaintiff and the test report was also not communicated to the http://www.judis.nic.in plaintiff. Apart from that, during the disputed demand period, 5 namely September 2008 to January 2009, there is no evidence to show that the plaintiff was running the mill. That apart, the defendants have not followed the procedure as contemplated under Section 26 (6) of the Electricity Act.
6. Accordingly, the First Appellate Court reversed with the finding of the trial Court, and allowed the appeal by judgment and decree dated 30.09.2011. Now, challenging the above judgment and decree, the appellants/defendants are before this Court with this second appeal.
7. In the grounds of appeal, the appellant has raised the following questions of law.
a) Whether the lower appellate Court is right in reversing the judgment and decree of the trial Court after interpreting the technical details in which the lower appellate Court is not an expert ?
b) Whether defendants / Tamil Nadu Electricity Board claimed the amount for the energy consumed by the respondent http://www.judis.nic.in which was not recorded on the meter ?6
c) Whether the demand notice issued by the defendants / Tamil Nadu Electricity Board demanding Rs.32,158/- is correct ?
d) Whether the permanent injunction granted by the Lower Appellate Court is wrong ?
8. The learned counsel appearing for the appellants submits that the appellant-Department has clearly proved that there is no defect in the meter and the testing report has already been marked as Ex.B2, which clearly shows that there is no defect in the meter. However, the plaintiff was only paying the minimum charges. In the above said circumstances, demand notice was issued. That apart, the lessee, who was examined as P.W.2, also clearly admitted that he has been running the said mill from March 2009. Now, it is not open to the plaintiff to contend that the Rice Mill was not functioning and escape from paying the electricity consumption charges.
9. I have heard both sides and perused the materials available on records carefully.
http://www.judis.nic.in 7
10. Admittedly, the demand notice has been issued for consumption from March 2009. The case of the plaintiff is that in March 2009, the mill was leased out to P.W.2 and he has been running the mill till March 2009. It was also corroborated by the evidence of P.W.2/lessee. That apart, admittedly he was paying the minimum charges till March 2009. The impugned demand notice has been issued on the ground that the plaintiff was running the mill without paying the actual consumption charges and he was only paying the minimum charges. Hence, he is liable to pay the differential amount for the actual consumption of electricity.
11. It is the case of the defendant that there is no defect in the meter and the meter was sent for examination by the MRT department of the defendant. The test report reveals that the meter was functioning well and there is no defect in the meter, but the plaintiff disputed the same. From the perusal of the records, it could be seen that after inspecting the meter, it was sent to the MRT Department for testing the meter. But, there is no evidence available to show that before removing the meter, http://www.judis.nic.in notice has been given to the plaintiff. Even though, the test 8 report has been marked Ex.P.2, the person, who has checked the meter, was not examined by the defendant. In the above circumstances, the test report cannot be relied on to show that there was no defect in the meter. Considering all those circumstances, the first Appellate Court reversed the judgment of the trial Court and decreed the suit.
12. I have also carefully gone through the entire materials available on record. There is no infirmity or perversity in the judgment of the Courts below. There is no substantial question of law arises for consideration in this second appeal. Hence, the second appeal is liable to be dismissed.
13. In the result, the second appeal is dismissed and the judgment and decree of the First Appellate Court reversing the judgment and decree of the trial Court is confirmed. There shall be no order as to costs.
26.03.2019 mrp Index : Yes/No Internet : Yes/No http://www.judis.nic.in 9 To
1. The Sub Judge, Rasipuram,
2. The District Munsif, Villupuram.
http://www.judis.nic.in 10 V.BHARATHIDASAN, J., mrp S.A. No.371 of 2019 26.03.2019 http://www.judis.nic.in