Punjab-Haryana High Court
Punjab State Electricity Board And ... vs M/S Sepal Hotel Private Limited on 12 August, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
RSA No. 767 of 1994 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 767 of 1994
Date of Decision: 12.8.2013
Punjab State Electricity Board and another
....Appellants.
Versus
M/s Sepal Hotel Private Limited
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. Roshan Lal Sharma, Advocate for the appellants.
Mr. Sanjay Tangri, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. The present regular second appeal filed by the defendants is directed against the judgment and decree dated 14.8.1993 passed by the lower appellate Court whereby that of the trial Court dated 6.9.1989 decreeing the suit of the plaintiff-respondent for permanent injunction was upheld.
2. Briefly stated, the facts necessary for adjudication of the present appeal as narrated therein are that the plaintiff-company got an electric connection. Impugned bill was issued by the defendants for ` 20,680/-, but demand of ` 13786.70P out of the said bill was void and illegal as there had been no theft of energy by the plaintiff. The plaintiff requested the defendants to desist from effecting recovery of that amount but to no effect. Hence, the plaintiff filed a suit for permanent Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -2- injunction restraining the defendant-appellants from charging ` 13,786,70P on the basis of bill No. 100534/01 and from disconnecting the electric connection bearing account No. MS-20-50, installed in its premises. Upon notice of the suit, the defendants filed a written statement raising various preliminary objections. Besides controverting the averments made in the plaint, it was pleaded that on checking by the Flying Squad, the meter was found to be recording 1/3rd consumption as one phase was working and other two phases were not contributing fully. From the pleadings of the parties, the trial court framed the following issues:-
"1. Whether demand of Rs.13786.70P by the defendants is void, illegal on the grounds mentioned in the plaint? OPP
2. Whether the plaintiff is entitled to injunction as prayed for? OPP
3. Relief."
3. The trial court on appreciation of oral as well as documentary evidence led by the parties while deciding issue No.1 in favour of the plaintiff held the demand raised by the defendants to be unjustified and the plaintiff was not liable to pay the disputed amount. Accordingly, the trial court vide judgment and decree dated 6.9.1989 decreed the suit and restrained the defendants from effecting recovery of ` 13786.70P on the basis of bill No. 100534/01 of ` 20680/- and also from disconnecting the connection No. MS-20-50 installed in the plaintiff's hotel. Feeling aggrieved, the defendant-appellants filed an appeal before the appellate court who vide judgment and decree dated 14.8.1993 upheld the judgment and decree of the trial court and Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -3- dismissed the appeal. Hence, the present regular second appeal.
4. Learned counsel for the appellants submitted that the courts below were in error in decreeing the suit of the plaintiff-respondent. According to the learned counsel, the report, Ex.D1 was not taken into consideration by the courts below. It was urged that once the meter was found slow by 66% on testing, the plaintiff-consumer was liable to pay the electricity charges for the consumption. The findings recorded on issue No.1 were also challenged by the learned counsel for the appellants.
5. On the other hand, learned counsel for the respondent besides supporting the findings recorded by the courts below argued that in the report of the Flying Squad Ex.D1, it was recorded that the meter was found to be showing only 1/3rd consumption and its two phases were not contributing and functioning properly and the slow running of the meter was not attributable to the plaintiff. Therefore, the demand raised by the appellants was rightly rejected by the courts below. There was no tampering of the meter and in such a situation no extra demand could be raised by the appellants. Reliance was placed upon the judgment of the Hon'ble Supreme Court in Bombay Electric Supply & Transport Undertaking v. Laffans (I) Pvt. Ltd. and another 2005(2) CCC 364 (SC) and of this Court in Punjab State Electricity Board and another v. Commissioner Appeals, Patiala Division, Patiala and others 2009 (1) CCC 340 (P&H) (DB) in support of his submissions.
6. After hearing learned counsel for the parties, I do not find any merit in the appeal.
7. The trial court while deciding issue No.1 in favour of the plaintiff had recorded as under:-
Singh Gurbachan2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -4-
"Admittedly on the basis of this very report (Ex.D1) of Flying Squad given by Sukhmander Singh A.E.E. two bills one for Rs.84,266/- and another for Rs.5763/- were issued to plaintiff by defendants on the ground that the meter was found to be showing only 1/3rd consumption and its two phases were not contributing and functioning properly. The validity of those two bills was challenged by the plaintiff in Civil Suit No. 97 of 31.1.86. In that suit also defendants relied upon this very report Ex.D-1 of Flying Squad given by Sukhmander Singh. Suit was no doubt dismissed by this Court vide judgment dated 8.11.88 but plaintiff challenged that judgment in appeal. The appellate court accepted the appeal and quashed the impugned bills issued by the defendants to plaintiff. Perusal of copy of judgment Ex.PX passed by appellate court shows that report Ex.D1 of Flying Squad and evidence of Sukhmandar Singh A.E.E. who gave that report were not accepted and it was observed that infact due to less voltage all the phases of the meter were not contributing and not that the plaintiff in any manner tampering with the meter and caused any defect in it. It was also observed that due to less voltage all the phases of meter were not working fully. That judgment is binding on the defendants. No doubt that judgment has been challenged by the defendants in High Court but till it is set aside it Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -5- remained in force and this court cannot by pass the same and give different findings. Earlier finding given by this Court a Civil Suit that due to plaintiff's conduct and act phases of the meter were not working and that plaintiff company was liable to pay the demanded amount had been set aside by the appellate court. In the face of judgment of appellate court, I have no option but to hold that the demand raised by the defendants is unjustified and plaintiff is not liable to pay the disputed amount. Issue is decided in favour of the plaintiff."
8. The aforesaid findings of the trial court were affirmed by the lower appellate Court with the following observations:-
"6. It is an admitted case of the parties that the bill was issued for Rs.20680/- whereas respondent is disputing the amount of Rs.15,786.70 P. The learned counsel for the appellants vehemently argued that on checking of the meter of the respondent Co. Flying Squad headed by Sukhwinder Singh found that only one phase of the meter was working properly and the other two phases were not contributing to the meter and on the basis of the report of the flying squad Ex.D1, the learned counsel pointed out that the respondent is causing theft energy. I have considered the contention of the learned counsel for the appellants but the same does not find favour with me. I find from the record that on the basis of the report Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -6- Ex.D1, two bills in the sum of Rs.84,266/- and Rs.5763/- were issued to the respondent by the Electricity Board and both these bills were challenged by the respondent in an earlier suit bearing No. 97 of 31.1.86 and in that suit the appellants relied upon this very report Ex.D-1 of Flying Squad given by Sukhwinder Singh. This suit was dismissed by the Court on 8.11.88 but the appellate court accepted the appeal and quashed both the impugned bills issued by the appellants to the respondent. I have gone through the copy of judgment Ex.PX passed by the court which clearly spells out that the court did not place any reliance on the report of the Flying Squad and the same was not accepted and it was observed by the ld. District Judge, Bathinda that infact, due to less voltage, all the phases of the meter were not contributing and the respondent have not tampered with the meter in question in any manner and it was further observed that due to less voltage all the phases of the meter were not working fully. Meaning thereby that the appellate court recorded a finding that it was due to negligence on part of the Electricity Board since proper voltage was not being released that two phases of the meter were not working and there was no fault on part of the respondent. The appellate court quashed the bills in question. In view of all this, it is crystal clear that the demand raised by Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -7- the appellants through the bill in question is unjustified, and as such the respondent is certainly entitled to the decree of permanent injunction and the findings of the lower court are hereby affirmed."
It was concluded that earlier also two bills in the sum of ` 84,266/- and ` 5763/- were issued to the respondent on similar grounds which were challenged in a suit bearing Civil Suit No. 97 of 31.1.1986 and in that suit the appellants had relied upon the report Ex.D1 of Flying Squad. The said suit was dismissed vide judgment and decree dated 8.11.1988 and the appeal thereto was accepted by the appellate court and the impugned bills were quashed vide judgment and decree dated 5.4.1989 (Ex.PX) wherein it was observed that due to less voltage, all the phases of the meter were not contributing due to external defect and the respondent had not tampered with the meter in question in any manner. There was nothing which could be attributed to the plaintiff for slow running of the meter. Once, there was no defect in the meter, except supply of less voltage and there was no tampering with the meter, the plaintiff-respondent could not be held liable for the amount as claimed by the appellants. It was in such circumstances, the demand raised by the appellants was held to be unjustified. Learned counsel for the appellants was unable to show that the findings recording by the lower appellate court were erroneous or based on misreading of evidence.
9. In Laffans (I) Pvt. Ltd's case (supra), the Hon'ble Apex Court had held as under:-
"For the period for which, according to the appellant, the meter was not correct, none of the parties has Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -8- referred the dispute to the Electrical Inspector. The meter though it is alleged by the appellant to have remained not correct, readings have been regularly recorded, bills raised and also paid by the consumer- respondent No. 1. According to Section 26(6), the readings would bind the appellant and respondent No. 1 both. It has never been the case of the appellant at any stage that the meter was not correctly recording the consumption of electricity on account of being non-functional due to any fraud committed or device or trick adopted by the consumer-respondent No. 1 or that the body seal of the meter was found broken or tampered with. The respondent No. 1 was accepting and honouring the demands raised by the appellant and, therefore, respondent No. 1 cannot be expected to have raised a dispute and sought for a reference for determination by Electrical Inspector. The appellant could not have, therefore, revised the demand for such period based on average consumption during the previous year. There is yet another reason why the entitlement of the appellant to recover charges from the respondent No. 1 may have to be denied. According to the proviso appended to sub-section (4) of Section 26, the licensee cannot take off or remove any such meter as to which difference or dispute of the nature described in sub- section (6) has arisen until the matter has been Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -9- determined by the Electrical Inspector. The purpose is to preserve the evidence. The dispute shall be expeditiously disposed of by the Electrical Inspector by applying scientific method of investigation to find out if the meter was incorrect and if so then what was the extent of error. In the present case, the meters said to be incorrect have been removed and replaced by the appellant. Admittedly, no dispute has been raised and referred to the Electrical Inspector. The most material evidence being the meter itself has been lost by the act of the appellant in removing the incorrect meter. The appellant cannot be permitted to take advantage of its own act and omission the act of removing the meter and the omission to make a reference to the Electrical Inspector."
10. In Commissioner Appeals, Patiala Division, Patiala's case (supra), this Court had observed as under:-
"....The responsibility of the petitioner-Board is to check and maintain the serviceability of the meter installed by it in the premises of a consumer. For the lapse(s) on the part of the petitioner-Board, the consumer cannot be held liable and thus, cannot be penalized. In the present case, the slow running of the meter cannot be attributed to any act or omission of the consumer i.e. respondent No.3 and, therefore, he cannot be liable for that. The order passed by the Commissioner (Appeals), Patiala, is in accordance Singh Gurbachan 2013.09.16 10:33 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No. 767 of 1994 -10- with equity, justice and fair play and thus, calls for no interference by this Court."
11. In view of the above, no substantial question of law arises in this appeal. Finding no merit in this appeal, the same is hereby dismissed. There shall, however, be no order as to costs.
August 12, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.09.16 10:33
I attest to the accuracy and
integrity of this document
High Court Chandigarh