Patna High Court
Bhagalpur Rolling Mills vs Bhagalpur Electric Supply Co. Ltd. on 17 May, 1973
Equivalent citations: AIR1974PAT269, AIR 1974 PATNA 269
JUDGMENT Madan Mohan Prasad, J.
1. This is an appeal against an order refusing the grant of injunction.
2. The appellant is a Rolling Mill, and it entered into an agreement with the respondent-Company for supply of electric energy for the purpose of running the mill. The Electric Company charged the plaintiff for the aforesaid supply of energy on the basis of the tariff for high tension supply. The bills were drawn up on the basis of supply at 325 Kilo-volt Amperes (KVA). It appears that differences arose between the two Companies in respect of the charges payable in the year 1971, Prior to that, since the agreement in the year 1968, the appellant had paid to the respondent at the rate claimed by the latter. As a result of the non-settlement of the difference aforesaid, a suit was filed by the appellant for a declaration that the Company's demand and realization on the basis of 325 KVA was illegal, that the Company's demand and realisation without considering restricted hours in calculating the supply was illegal and that the company's demand and charges on the basis of power factor at one unit while calculating the minimum units chargeable at 25% of load factor of contract demand were wrong and illegal. The plaintiff further sought for a decree for a sum of Rs. 13,645/- and odd being the amount illegally so realised. During the course of the suit, an application was filed for grant of injunction which has been refused. Hence this application.
3. It appears from the order of the learned Subordinate Judge that only two (points) were raised before him by this appellant and they were in respect of supply on the basis of 325 KVA and the other in respect of the power factor. In respect of the first point, the case of the appellant is that the Electric Company should not have charged it on that basis but on the basis of 260 KVA. The defendant's case is that in view of the plaintiff having undertaken by the agreement aforesaid to pay at the rate calculated on the basis of 325 KVA, it had no case on the point. With regard to the second point, the case of the plaintiff is that the Company should have charged on the basis of 0.80 power factor and not on the basis of one unit power factor. The case of the defendant on the other hand, is that the current rate at which the Company has been charging all customers is on the basis of one unit power factor; and, there being nothing in the agreement to exclude the plaintiff, it was and is entitled to charge at that rate. The learned Subordinate Judge found that the plaintiff had not made out any substantial case on the first point. With regard to the second, the learned Subordinate Judge found that there was nothing in the agreement about this matter, and, therefore, the question would have to be decided in the suit itself. Apart from his findings on the two points aforesaid, he found that the balance of convenience was in favour of the respondent and that there was no question of any irreparable injury to the appellant. In this view of the matter, he rejected the prayer.
4. Mr. J.C. Sinha, appearing for the appellant, has confined his argument merely to the ground relating to power factor. For the purpose of the present appeal, he did not make any effort to show that the finding of the learned Subordinate Judge relating to 325 KVA is wrong. Therefore, his only argument has been that the learned Subordinate Judge evaded the consideration of the question relating to power factor. He has urged that the learned Subordinate Judge ought to have considered as to whether in the absence of anything in the agreement, there was anything on which the defendant could rely to show that it was entitled to charge at one unit power factor. The prayer has, therefore, been made that the order passed by the learned Subordinate Judge ought to be set aside and the matter sent back for fresh consideration. So far as the ground relating to power factor is considered I am afraid in the circumstances of the present case I do not find any justification for doing so.
5. Learned Counsel has not been able to point out any contract between the parties to show that the power factor to be taken into consideration ought to be 0.80 and not one unit. The only material, which has been placed before me in this connection, is a notice issued by the respondent to its consumers, wherein it is said that no consumer shall allow the average power factor of the supply taken by him to fall below 0.80 in any month and that in the event of average power factor falling below 0.80, it shall be raised at least to this figure, namely, 0.80, by the consumer. It further says that if consumer fails to raise the power factor at least to 0.80 within six months of a notice given in writing in this behalf, a surcharge at the rate of 1% for every fall of power by 0.01 will be leviable on the maximum demand and energy charged. This will only indicate that the power factor has to be taken into consideration for the purpose of surcharge if consumer allows the power factor to fall below 0.80. My attention has next been drawn to a notification issued by the Bihar State Electricity Board. It may be mentioned that the respondent-Company is not owned by the State Electricity Board. The aforesaid notification contains what is called "Special conditions and charges applicable to high tension service". It is said therein that the minimum charges realisable from the high tension consumers shall be as follows, namely, (1) that the consumer shall pay the maximum demand charge based on the maximum demand of that month, or 75 per cent, of the Contract Demand, whichever is higher, as the minimum per month, and (2) that in addition, the consumer shall pay an energy charge at 25 per cent, load factor and O.S power factor on the Contract Demand per annum as the minimum. On that basis, it has been argued by way of analogy that in the present case also the Company ought to have charged at the rate of 0.8 power factor. Apart from these materials, nothing has been pointed out in support of the case of the plaintiff that the charges should have been on the basis of 0.80 power factor.
6. Mr. K.D. Chatterjee, appearing for the respondent, has urged that the power factor has absolutely no relation to the question of charge except that it has to be taken into consideration only when it is allowed to fall below 0.80, because in such a case it leads to damage to the plant and machinery and causes obstruction to the generator to keep the supply at a particular KVA resulting in depreciation; and, it is on this account that a surcharge has been provided for. He has also urged that it is not for his client to produce evidence at this stage to support the charge at the rate of one unit power factor, and it is for the plaintiff to produce some such material in order to show that there is a substantial question for trial in this respect. In this connection, it may be mentioned that he has drawn my attention to the Indian Electricity Rules, 1956; Annexure VI of which contains model form of draft condition of supply. It is said that all the Electric Companies have to adopt this draft condition of supply. Paragraph 15 of the condition says that "the price and method of charging for current supplied shall be such as may be fixed by the licensee from time to time subject to the provisions of the Electricity (Supply) Act, 1948"; and, "unless specified otherwise all rates refer to one point of supply". On this basis, it has been urged that it is for the Electric Company to fix the tariff and the same had to be subject to the Act aforesaid; and, the consumer having entered into a contract to pay for supply of energy in accordance with the tariff supplied by the Company, there is no prima facie case made out by the plaintiff-appellant in this respect. In this connection, my attention has also been drawn to the form of the application which a consumer has to make for the supply of energy which is contained in Appendix 'A' of Annexure VI of the aforesaid rules. It includes an agreement to pay for the said supply at the tariff rates and on the conditions of supply in force, from time to time, and also to pay for all such other charges as become due from time to time.
7. I can quite appreciate why the learned Subordinate Judge has not given a detailed consideration to the point of power factor. It appears that nothing more than the bare plaint was before him supplemented by the argument of the learned Counsel. Even in this Court, the position is no better except that the learned Counsel for the appellant has been able to point out something in the notification relating to the Bihar State Electricity Board in so far as the manner prescribed by them for charging the consumers is concerned. Learned Counsel for the appellant was unable to tell me that there was anything else on the record which the learned Subordinate Judge ought to have considered while considering the question of power factor. There was nothing before him as pointed out except the plaint
8. It appears from the aforesaid notice of the respondent-company that the revised tariff for the supply of electrical energy on and from the 1st June, 1968, has been provided for high tension supply. The power factor is said to be relevant for the calculation of the minimum guarantee payment by such consumers, and all that the notice says is that "the consumer should guarantee and pay an energy charge at 25% load factor of the contract demand per annum as the minimum". It does not talk of the power factor at all. It is for this reason that the learned Subordinate Judge said that the matter would have to be considered in the suit itself and could not be taken as a ground at the present stage for grant of an injunction. I find difficulty in taking a different view.
9. Assuming, however, that the plaintiff has made out a substantial case in respect of the power factor, I would still be not inclined to grant an injunction for the reason that neither the balance of convenience is in favour of this appellant, nor is there any irreparable injury likely to occur to it. I find myself in agreement on both these points with the learned Subordinate Judge, Mr. J.C. Sinha has urged that 'irreparable injury' does not mean only such loss as cannot be compensated in terms of money but has also to be understood so as to include 'serious injury". Reliance has been, placed in support of this proposition on a Bench decision of this Court in Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222. That was a case where the person seeking injunction had raised bungalows, dwelling houses, tram lines, railway sidings, fixed plant and machineries, etc., on the land in question, and the question was whether serious injury would be caused to him if he were to remove them. Their Lordships held that before granting an injunction the Court must be satisfied that the plaintiff has a prima facie case, that the Court's interference is necessary to protect him from irreparable or at least serious injury, that the balance of convenience is in favour of the person who asks for the injunction, and that there is no other sufficient remedy open to him by which to protect himself. There is no dispute about the proposition laid down in that case. Each case, however, has to be considered on its own merit for the purpose of finding out whether the principles are applicable. In the present case, the respondent-company has been charging all the consumers at the same rate. The appellant also had been paying the respondent the same rate from 1968 to 1971 until the dispute arose. If the injury caused to the appellant till then was not irreparable or serious, it can hardly be contended that it has now become irreparable or serious simply because a dispute has arisen between the parties. Mr. K.D. Chatterji relied on a passage in Halsbury's Laws of England, Third Edition, Volume 21, contained under the heading 'perpetual restrictive injunctions'. In paragraph 739, the question of injury being irreparable has been considered. It is stated therein:
"If, however, the plaintiff has himself shown, by his conduct on a previous occasion, that the injury complained, of is one which may in some way be compensated by money, the Court may decline to grant an injunction."
In the circumstances of the present case, the appellant had not felt that it was being injured irreparably for all the three years before the dispute. In this connection, I may point out that the difference between the parties, if at all, would be very minor in view of the fact that for the purpose of the injunction matter, it has not been disputed that the finding of the learned Subordinate Judge is wrong in respect of the basis of 32? KVA supply. If the power factor is at ail to be taken into consideration, then the difference between 0.80 and one unit is so little that it will hardly make any appreciable difference to the amount of the bill. Actually, it was prayed on behalf of the appellant that the injunction may be granted only in so far as the excess over the supply on the basis of 0.80 power factor is concerned. It has been said that if the appellant has to pay the illegal bill at the present rate, the plaintiff-Mill might not be able to run itself. The argument does not appeal to me for it has been able to run itself so long in spite of the payment.
10. Another consideration in this respect is that the Electric Company has a statutory duty under Section 22 of the Indian Electricity Act (hereinafter called 'the Act') to supply energy to the consumers. Section 23 (3) of the Act provides that "in the absence of an agreement to the contrary, a licensee meaning an electric company) may charge for energy supplied by him to any consumer (a) by the actual amount of energy so supplied, or (b) by the electrical quantity contained in the supply, or (c) by such other method as may be approved by the State Government". In this case, there is no material to show at this stage that the tariff at which the respondents are charging the appellant has not been approved by the State Government. These matters have not been brought before the Court. Sub-section (4) of Section 23 of the Act says that:
"Any charges made by a licensee under clause (c) of sub-section (3) may be based upon, and vary in accordance with, any one or more of the following consideration, namely:-
(a) the consumer's load factor, or
(b) the power factor of his load, or
(c) his total consumption of energy during any stated period, or
(d) the hours at which the supply of energy is required."
It does not say that the charges must be based upon all these factors. It may be based on one or more of them. Section 24 of the Act provides for discontinuance of supply to consumer neglecting to pay charge to the electric company and also that if there be any difference or dispute which is required to be determined by an Electrical Inspector, the same has to be referred to the Inspector. Model form of draft condition of supply, referred to above, contains clause No. 16 regarding payment of bills, and it says that "bills should be paid at the licensee's local office within 15 days from the date of their presentation", and that if any complaint with regard to the accuracy of the bills be made, "the amounts of such bills shall be paid under protest". If, therefore, the appellant has any dispute with regard to the accuracy of the bill, the law expects it to pay up the bills under protest. In such circumstances, it can hardly be said that the balance of convenience lies in favour of the appellant. From what has been stated above, it is clear that neither the balance of convenience is in favour of the appellant, nor is there any irreparable or serious injury likely to occur to it. Thus, there would be no justification for granting an injunction as asked for even assuming that the plaintiff has a substantial case to go to the trial.
11. It is, accordingly, dismissed. In the circumstances of the case, however, there will be no order as to costs.