Himachal Pradesh High Court
Sh. K.L. Sahni S/O Sh. Sewak Ram vs The H.P. State Electricity Board on 17 June, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF JUNE, 2022
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
.
REGULAR SECOND APPEAL No.188 of 2009
Between:-
M/S LAXMI ROLLER FLOUR MILLS (P)
LIMITED, PARWANOO, SECTOR-6,
TEHSIL KASAULI, DISTRICT SOLAN, H.P.
THROUGH ITS MANAGING DIRECTOR
SH. K.L. SAHNI S/O SH. SEWAK RAM
......APPELLANT
(BY SH. NAVNEET KUMAR BHALLA, ADVOCATE)
AND
1. THE H.P. STATE ELECTRICITY BOARD,
SHIMLA, VIDYUT BHAWAN
THROUGH ITS SECRETARY
2. THE CHIEF ENGINEER, H.P. STATE
ELECTRICITY BOARD, SHIMLA
3. THE SUPERINTENDING ENGINEER,
H.P. STATE ELECTRICITY BOARD
HYDEL CIRCLE SOLAN
4. THE EXECUTIVE ENGINEER,
H.P. STATE ELECTRICITY BOARD
PARWANOO, DIVISION PARWANOO,
TEHSIL KASAULI, DISTRICT SOLAN, H.P.
......RESPONDENTS
(BY SH. TARA SINGH CHAUHAN, ADVOCATE)
This Appeal coming on for hearing this day, the
Court delivered the following:
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2
JUDGMENT
The civil suit filed by the appellant for recovery .
of a specified amount has been concurrently dismissed by both the learned Courts below. Aggrieved, the plaintiff has instituted instant regular second appeal.
This appeal was admitted on 20.07.2009 on following questions of law:-
"Whether the findings of the Ld. Courts below are perverse based on misreading of oral and documentary evidence, particularly exhibits PW1/C, PW1/D and PW1/E?"
2. Heard learned counsel for the parties and gone through the record.
3. Facts:-
3(i). A civil suit was instituted by the appellant against the respondents for recovery of Rs.1,87,850/-, i.e. Rs.65,000/- on account of principal and Rs.1,22,850/- on account of interest thereupon @ 18% per annum with future interest @ 18% per annum. The case of the plaintiff in nutshell was that there was a dispute between the parties regarding the electricity charges. The plaintiff instituted a civil suit against the defendants. Learned Trial Court vide judgment dated 11.04.1991 decreed the suit.
The defendants were restrained from disconnecting the ::: Downloaded on - 17/06/2022 20:04:09 :::CIS 3 electricity supply to the plaintiff for non-payment of the disputed amount. The defendants were also restrained from recovering the disputed amount of Rs.1,60,390.05/- plus .
Rs.10,202.52/- till the adjudication of the dispute between the plaintiff and defendants by the Electrical Inspector.
This judgment and decree was modified by the learned First Appellate Court on 30.12.1991 to the extent that the words "till the dispute between the plaintiff and defendants is adjudicated upon by the Electrical Inspector as per provisions of the Electricity Act" appearing in the judgment were ordered to be deleted. Regular Second Appeal No.146 of 1992 filed by the defendants against the aforesaid judgment was dismissed by this Court on 21.05.1998.
3(ii). The plaintiff pleaded that defendants kept on exerting pressure on it to pay the electricity dues. That under the threat of disconnection of electricity supply, the plaintiff made payment to the defendants on several occasions, in all amounting to Rs.65,000/-. The case of the plaintiff was that in the previous round of litigation, it had already been held that the defendants cannot recover the disputed amount from the plaintiff, therefore, the payment of Rs.65,000/- made by it on different dates to the ::: Downloaded on - 17/06/2022 20:04:09 :::CIS 4 defendants was liable to be refunded to the plaintiff alongwith interest @ 18% per annum.
3(iii). The defendants filed their written statement. In .
para 3 thereof, the defendants admitted that the consumer/ plaintiff had deposited six installments amounting to Rs.64,200/-. The stand was that the said installments were deposited by the plaintiff after being convinced about the amount being charged from it.
3(iv). The parties led evidence in support of their respective contentions.
3(v). After considering the pleadings, evidence and submissions made by learned counsel for the parties, learned Trial Court vide judgment and decree dated 12.06.2007, dismissed the suit. The judgment and decree passed by the learned Trial Court has been affirmed by the learned First Appellate Court on 08.01.2009.
4. While dismissing the civil suit and appeal, both the learned Courts below have held that the plaintiff was required to prove that it had made payment of the amount in question to the defendants. That no receipts had been produced/proved on record by the plaintiff to show that it had made the payment of the principal amount of Rs.65,000/- on different dates to the defendants. There ::: Downloaded on - 17/06/2022 20:04:09 :::CIS 5 being no formal proof of the payments having been made to the defendants, the plaintiff was held not entitled for recovery of the amount in question.
.
5. With the assistance of learned counsel for the parties, I have considered the record. As observed above, in para 3 of the written statement, the defendants have admitted the deposit of an amount of Rs.64,200/- by the plaintiff against the bills raised by the defendants. It will be apt to reproduce this para from the written statement:-
"3. That the contents of para 3 of the plaint are wrong and denied. It is denied that under pressure the deposits were made by the plaintiff as mentioned in this para and it is also denied that there was any threat or disconnection of electric supply as alleged. It is however submitted that the firm has in fact requested for payment instalments of the arrears vide letter dated 5.4.88 (Copy enclosed Ann 'A') which was allowed by SE Solan vide letter No.HC-4/CS-141-PAC-88/654-58 dated 23.4.88 (Copy enclosed Ann 'B') and the consumer has deposited six instalments after being convinced about the amount being charged.
1st Rs.14800.00- 4/88
2nd Rs. 9800.00- 5/88
3rd Rs. 9800.00- 6/88
4 th Rs. 9800.00- 7/88
5th Rs.10000.00- 8/88
6 th Rs.10000.00- 9/88
_______________
Rs.64200.00
_______________
Hence the details given by the plaintiff is not correct. The same amount has already been adjusted against the consumer account and even otherwise the same amount cannot be recovered as has become barred by limitation."::: Downloaded on - 17/06/2022 20:04:09 :::CIS 6
The stand taken by the defendants in para 3 of the written statement has not been noticed either by the learned Trial Court or by the learned First Appellate Court.
.
The defendants had admitted the receipt of Rs.64,200/-
from the plaintiff in lieu of electricity supply against the bills raised in that regard. This admission and its implication upon the relief claimed by the plaintiff has not been considered by the learned Courts below at all. Hence, the impugned judgments and decrees deserve to be interfered with.
Accordingly, the present appeal is allowed. The judgment & decree dated 12.06.2007 passed by the learned Trial Court in Civil Suit No.150/1 of 06/02/1999 and judgment & decree dated 08.01.2009 passed by the learned First Appellate Court in Civil Appeal No.33-S/13 of 2007 are set aside. The matter is remanded to the learned Trial Court for fresh decision in accordance with law. Parties, through their learned counsel, are directed to appear before the learned Trial Court on 14.07.2022. Registry is directed to return the records to the learned Courts below forthwith.
Considering the fact that the civil suit was instituted by the appellant in the year 1999, there shall be a direction to the learned Trial Court to decide the suit as ::: Downloaded on - 17/06/2022 20:04:09 :::CIS 7 expeditiously as possible, preferably within a period of three months from today.
The appeal stands disposed of in the above .
terms, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
June 17, 2022 Judge
Mukesh
r to
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