Gujarat High Court
Geb Through Secretary vs Saurashtra Chemicals on 11 September, 2003
Equivalent citations: AIR2004GUJ83
Author: C.K. Buch
Bench: D.K. Trivedi, C.K. Buch
JUDGMENT C.K. Buch, J.
1. This appeal under Section 96 of the Code of Civil Procedure is preferred by the appellants -original defendants of Special Civil Suit No. 2/1991 against the judgment and order dated 30.9.1995 passed by the ld. Civil Judge (S.D.), Porbandar whereby suit of the respondent -original plaintiff company has been decreed. Appellants are the original defendants and respondent is the original plaintiff and for the sake of convenience, they will be referred to hereinafter as defendants and plaintiff respectively. Ld. Civil Judge decreed the suit holding that the plaintiff is entitled to recover an amount of Rs. 37,17,548-00 from the defendants with running interest at the rate of 12% p.a. from the date of the suit till its realisation with costs of the suit.
2. To appreciate the rival contentions raised by the ld. Senior counsel appearing for the parties, it would be appropriate to narrate the facts of the case in nutshell.
2.1 It is the case of the plaintiff that plaintiff company namely Saurashtra Chemicals, Porbandar was provided with 2000 KVA High Tension Electric Connection as per the agreement and electricity meter was installed in the factory premises by the defendants. Installation Checking Squad of defendant No. 1 Gujarat Electricity Board (hereinafter referred to as GEB ) visited the premises without intimation, of the plaintiff company on 2.2.1982 and from that day to 7.2.1982 electricity meter was watched in the presence of the responsible officer of the company and plaintiff was informed that the meter installed in the premises of the plaintiff is not showing correct electricity supply consumed and the same is running slow. Thereafter GEB installed new Trivector meter on 9.9.1982 parallel to old existing meter No. 12636824. According to the plaintiff, this act of putting parallel Trivector meter without prior intimation was objectionable and so the same was objected and the officers of the Checking Squad were requested to check the old meter. According to the plaintiff, the existing meter was giving the correct reading and defendants had agreed to check the old meter, but the same was never checked. On the contrary, on 12.5.1983, defendant No. 1 GEB had issued a supplementary bill for the period from 6.12.1981 to 9.9.1982 claiming that the old meter was used for the billing purpose and for the said period, so the plaintiff should pay the amount shown in the supplementary bill. This supplementary bill was issued on the strength of the letter from defendant No. 1 to defendant No. 3 for Rs. 2,10,404-92. This supplementary bill was objected by the plaintiff and detailed reply was sent to the defendants. Thereafter, defendants issued notice to the plaintiff threatening to disconnect the meter connection if plaintiff fails to make payment of the amount demanded vide supplementary bill and ultimately, according to the plaintiff, defendants recovered the amount wrongly claimed by deducting that amount from the plaintiff's account in which the refund was being credited as per the rules. Undisputedly, the plaintiff is having H.T.Consumer Account with defendant No. 1 GEB being Account No. 2763 in which energy charges are debited and the amounts paid by the plaintiff are credited and the said account is current and was continued (running) even on the date of filing of the suit. It is contended by the plaintiff that new Trivector Meter No. 26628293 was used for the purpose of billing from 9.9.1982, was moving fast by around 6% and for that the plaintiff had requested the defendant -concerned authority and ultimately on 22.1.1987, Trivector Meter placed was replaced by another new Trivector Meter. The grievance of the plaintiff is that the action of the defendants to issue supplementary bill of Rs. 2,10,304-92 ps. and to charge the plaintiff on the strength of new meter from 6.12.1981 to 9.9.1982 and from 10.9.1982 to 21.1.1987, is totally illegal and bad-in-law and, therefore, defendants are liable to refund the amount actually recovered from the plaintiff with interest from 1.5.1983, the date on which the amount was adjusted from the amount lying in the H.T. Current Account of the plaintiff. As the amount recovered by the defendant is excess on the basis of reading of new meter which was moving fast, without referring the dispute raised to Electricity Inspector, should be held illegal.
2.2 Defendants have resisted the suit by filing written statement vide exh.16 and they have denied the allegations made in the plaint. According to the defendants, the suit of the plaintiff is neither true nor legal or otherwise maintainable in law. It is also the say of the defendants that the suit is hopelessly barred by limitation in view of the Limitation Act and, therefore, the suit of the plaintiff need to be dismissed without going into merits of the facts stated by the plaintiff. According to defendants, plaintiff has not mentioned any exact date on which cause of action has allegedly arisen. Defendants have inter alia contended that the suit of the plaintiff requires to be dismissed in view of the provisions of O.9 R.9 of CPC as the same is not maintainable and therefore deserves dismissal in view of the provisions of O.2 R.2 of CPC. Prior to filing of the present suit, plaintiff had filed a suit being Special Civil Suit No. 7/1986 in the Court and the Court dismissed the said suit under O.9 R.8 of CPC for want of prosecution. It was filed on the same ground and for the said alleged cause. Undisputedly, defendant No. 1 GEB as licensee doing business of supplying electric power by providing electricity connection to the consumers in their respective premises and as per its norms including Statute and Statutory Rules framed thereunder. According to law, they are providing meter and consumers are given bills as per the electricity energy consumed in accordance with the reading of the meter and the consumer is liable to pay the amount of bill. It is the say of the defendants that they are given right and authority to check, to search the meter installed at the place or premises of the consumer and checking of the plaintiff's meter by Checking Squad made from 2.2.1982 to 7.2.1982 was absolutely in accordance with the authority of law. As the meter was not found rotating or moving properly against the energy consumed, they put parallel meter with old existing meter in exercise of the authority and powers under sub-section 7 of Section 26 of the Indian Electricity Act. This parallel Trivector meter was fitted in the presence of the responsible officer of the plaintiff and as per rules. This act of putting parallel Trivector meter was with a view to test and verify whether the old existing meter is showing correct figures of rotation or not. It is contended by the defendants that new parallel Trivector meter fitted was a calibrated and tested by the Laboratory maintained by defendant No. 1 GEB.
2.3 It is contended that GEB is doing business of supplying electrical energy and for the purpose i.e. to assess the consumption of supply, it also provides meter along with connection and bills are being issued as per the reading of the meter to the consumers and the consumer is supposed to pay bill amount. The law also gives right and authority to check and inspect the meters so installed at the premises of its consumers and in exercise of statutory right the team of GEB visited the premises of the plaintiff. The plaintiff company has experienced and qualified Electrical Engineer as employees. The old meter was initially watched manually and as it was found that rotation is probably slow and so a meter parallel to the load meter in accordance with the provisions of Sec.26(7) of the Act was installed. This new parallel meter was installed in presence of one responsible officer of the plaintiff company and ultimately it was found that the old meter of the plaintiff was moving slowly at the rate of 5.87% and, therefore only, the plaintiff was issued supplementary bill of Rs. 2,10,304-92 ps. According to GEB, if the plaintiff had any objection against the issuance of supplementary bill on the ground that new meter is moving fast in the same percentage i.e. 5.87% or say 6%, then the plaintiff itself ought to have referred the dispute as to genuineness of the new meter to the Electrical Inspector under Section 24(2) of the Act. On the contrary, the plaintiff had paid the amount of bill to the defendant by permitting adjustment without raising any formal dispute before the Electrical Inspector and after a long time, various false pleas are raised. While denying the claim of the plaintiff, GEB contended that the suit of the plaintiff is barred by limitation because the same is brought after the lapse of more than three years of the adjustment of the amount-recovery of the amount of the supplementary bill. In view of the disposal of the earlier suit, it is contended that the present suit is barred and not maintainable in view of the provisions of O.9 R.9 of CPC. The relief which has been prayed in the present suit could have been prayed much earlier and especially when the first suit was filed in the year 1986 being Spl.Civil Suit No. 7/1986. So also, the present suit is barred in view of the provisions of O.2 R.2 of C.P.C. The earlier suit was not withdrawn as per the scheme provided under O.23 of C.P.C., but the same was dismissed for want of prosecution on the day fixed for recording evidence. So, the provisions of O.2 R.2 and O.9 R.9 of C.P.C. would hit the suit of the plaintiff. For short, it is contended that there is no base for filing the present suit against the recovery of the amount in question and, therefore, the same should be dismissed.
2.4 The ld. trial Court framed various issues in view of the rival contentions raised by the parties vide exh.17 and the parties have led oral as well as documentary evidence in support of their pleadings. The plaintiff company has examined his one of the officer Mr. Ramjeevan Rampratap Singhal who was a Manager at relevant point of time vide exh.37 and defendants have examined Executive Engineer Shantilal Liladhar Soneji vide exh.58. Parties mainly have placed reliance on the documentary evidence. Most of the documents have been produced and on admission they have been exhibited and the some of the documents have been proved by the witnesses examined by the parties.
2.5 We feel it necessary to mention certain undisputed or admitted facts; viz:-
(i) Installation Checking Squad of GEB had visited the premises of the plaintiff company during 2.2.1982 to 7.2.1982 without prior information;
(ii) In the presence of the responsible officers of the plaintiff company, the officers of the Checking Squad installed new Trivector Meter parallel to the old meter on 9.9.1982. Existing Meter was bearing No. 12636824 and number of New Parallel Meter was No. 26628293. As per the plaintiff, the old meter was showing the correct reading as to the supply of electricity energy and Trivector meter was moving fast by about 5.87% against the say of the defendant GEB is that the old meter was moving slow to that extent. So, there is no material variation as to the percentage of fast or slow movement of the meter in question.
(iii) Defendant GEB had issued supplementary bill to the plaintiff for the period from 6.12.1981 to 9.9.1982 claiming that the old meter which was used for billing purpose, was found moving slow for the said period.
(iv) That amount of said supplementary bill has been paid and recovered by the defendant GEB and this recovery is by way of adjustment from the plaintiff's account. At the request of the plaintiff, new meter was removed in the year 1987 and another new- third meter was installed at the premises of the plaintiff company.
(v) That installation of fresh third new meter at the request of the plaintiff and the said request was made prior to the date of filing of the earlier suit i.e. Spl. Civil Suit No. 7/1986.
(vi) That the plaintiff had filed a suit being Spl.Civil Suit No. 7/1986 against the defendants for various reliefs including recovery of the amount of Rs. 2,10,304-92. The said suit has been dismissed by the Court on the ground of non-appearance of the plaintiff when the same was listed for recording of evidence after framing of issues.
2.6 After appreciating the evidence and various contentions raised by the parties and oral arguments advanced by the impugned judgment, the trial Court decreed the suit for the entire amount claimed by the plaintiff with running interest at the rate of 12% from the date of the suit till its realisation. The judgment and decree for the full amount with interest has been challenged by way of present appeal.
3. Ld. Senior Counsel Mr. M.D. Pandya appearing for the appellant GEB and Ld. Senior Counsel Mr. B.P. Tanna appearing for original plaintiff, have taken us through the entire oral as well as documentary evidence and have developed their arguments to all relevant legal as well as fact findings recorded by the trial Court. We have also carefully considered the reasons assigned by the ld. trial Judge for accepting the case of the plaintiff in toto. Before appreciating the arguments advanced before us, for the sake of convenience, we would like to deal with certain legal contentions raised by the appellant. According to us, these submissions go to the root of the merits of the case of the plaintiff and substantive reliefs prayed.
4. Copy of the plaint of Spl.Civil Suit No. 7/1986 filed by the respondent plaintiff and having regard to the fact that the suit was dismissed for default under O.9 R.8 of CPC, the subsequent suit i.e. Spl.Civil Suit No. 2/1991 being in substance and reality a fresh suit in respect of the same cause of action would be clearly barred in light of the provisions of O.9 R.9. The cause of action shown in the earlier suit by the plaintiff company and the present suit is one and the same. The appellant company has never attempted to see that earlier suit is either restored by the Court or the decision of dismissal of the suit for want of prosecution because of non-appearance of the plaintiff on the date of recording of evidence and after framing of issues, or the decision of the dismissal is challenged in the Court of appeal treating the order having effect of dismissal under O.17 R.2 of CPC. On proper appreciation of the facts mentioned by the plaintiff in the suit and the relevant provisions of the Act and the Rules framed thereunder, it clearly transpires that the plaintiff challenged the validity of the bills, facts leading to preparation and issuance of such supplementary bills, as such it had attempted at the time of filing of earlier Spl.Civil Suit No. 7/1986. Mr. Pandya, ld. Senior Counsel appearing for the appellant has fairly submitted that the finding of the ld. trial Judge, though is found legal and proper qua the decision on the issue of barring of the suit on the principles of res-judicata, the adjudication of the issue No. 9(b) is not legal. Undisputedly, this is not a case where the defendant Board had either directly or indirectly admitted the claim or part thereof. So, as per the scheme of Rule 9 of O.9 of CPC, as the plaintiff company failed in appearing when the earlier suit was called out for hearing, the Court was compelled to make an order of dismissal of the suit. It is not even the case of the plaintiff respondent that somebody on behalf of the company was physically present in the Court, but on the contrary, it is clear that nobody on behalf of the plaintiff appeared on the date fixed for recording evidence. The dismissal of the suit by passing the order having effect of the order passed under O.17 R.3 and as the earlier suit of the present respondent plaintiff was wholly dismissed under R.8, the plaintiff obviously was precluded from bringing the fresh suit in respect of the same cause of action in view of R.9 O.9. Ld. trial Judge ought to have compared the averments made in both the plaints and especially the nature of relief prayed and cause of action initiated in relevant paras of both the suit plaints while appreciating the arguments advanced by the appellant Board and recording the finding on issue No. 9(b). We agree that the order under O.9 R.8 of the CPC is not appealable under O.43 R.1 of CPC and the remedy of the parties is to apply for restoration, but a party who has failed in getting the suit restored, cannot bring a fresh suit modulating or camouflaging the basic facts. We are not convinced by the reasons assigned by the ld. trial Judge that the present suit of the plaintiff is on different cause of action. For the purpose of O.9 R.9, the term "cause of action" is to be construed with reference rather to the substance then to the form of action. The Apex Court, in the case of Suraj Rattan Thirnai and others v/s Azambad Tea Co.Ltd. and Ors. , reported in AIR 1965 SC P.295, has observed that :-
" Order 9 Rule 9 of Civil P.C. precludes a second suit in respect of "the same cause of action" where the first suit is dismissed for default of appearance of the plaintiff. In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is "are the causes of action in the two suits in substance and not technically identical." Thus, the term "cause of action" is to be construed with reference rather to the substance than to the form of action."
When the matter substantively in controversy in the earlier suit and the the subsequent suit are the same, then for want of any formal restoration, the subsequent suit would be barred. Right conferred under O.9 R.9 of CPC debarring a party from instituting a suit on the same cause of action, is a substantive right created in favour of the other side and such a right is not only a procedural right. Ld. trial Judge has failed in appreciating this aspect. So, ld. trial Judge ought to have held that fresh suit on the same cause of action being not maintainable, requires to be dismissed solely on this ground.
5. Ld. Senior Counsel Mr. M.D. Pandya while developing his arguments has fairly accepted that the finding recorded by the Lower Court on the issue No. 6 has some legal force and as earlier suit filed by the plaintiff company was not decided on merits, requirement of section 11 of the CPC cannot be said to have been satisfied and, therefore, the 2nd suit could not have been dismissed by treating it as barred by the principles of "res judicata". It is rightly submitted that while dealing with issue No. 6, ld. Judge has incorrectly interpreted the scheme of O.2 R.2 of CPC and the effect thereof while dealing with some undisputed facts available on record. Copy of the plaint of previous suit at exh.44 is a relevant document more particularly the relief clause in the said suit and cause of action for filing of that suit, mentioned in relevant para of the plaint. It is clear that the subject matter of the previous suit and the present suit are the same. The parties are also same and the plaintiff is litigating substantially on the same cause and for the amount which could have been claimed on the basis very documents that have been produced as foundation for the present suit. It is true that in the earlier suit, the State of Gujarat was joined as party-defendant and in the present suit the State of Gujarat has not been joined as one of the defendants. Tricky commission of one of the party-defendant in whose absence effective and executable decree can be passed, shall not help the plaintiff in bringing the 2nd suit on the same cause of action or grievance. Undisputedly, the defendant Board has recovered the excess amount from the plaintiff company and from its account and amount lying with the defendant Board. Merely because the said account is not closed or the plaintiff company being a consumer of electricity supply continuing its account maintained by the defendant Board, would not make him entitled to file the 2nd suit as if the suit is filed for statement of accounts. The reference of entry of adjustment effecting recovery of excess amount than payable by the plaintiff company was made much prior to the earlier suit, cannot legitimately be made basis for filing of the suit as these entries were made and referred to by the plaintiff company as one of the basic contention in the earlier suit. Though the officers of the defendant Board has admitted that they are maintaining ledger account of each consumer wherein they are crediting and crediting the amount which the consumers are entitled and debiting the amount payments of which are to be made by the consumers and accordingly entries are also made. In the case of the present plaintiff, though the Board had continued that very ledger account and credit as well as debit entries have been made even after 1986, it cannot be said that there was no final settlement of accounts till filing of the present suit i.e. 2nd suit between the parties. According to us, finding recorded by the lower Court is misconceived that the cause of action would continue till the filing of the present suit and there would not be any embargo in filing of the present suit. Interpretation of document exh.33 dated 1.5.1986 does not give rise to the new/fresh cause of action. It would be incorrect to say that the cause of action is also different than the previous suit and, therefore, there is no element of either omitting or relinquishment of any of the reliefs which could have been prayed in the earlier suit. The finding recorded by the Lower Court is misconceived in holding that O.2 R.2 of CPC is not applicable in this case. On the contrary, according to us, defendant has satisfactorily established by leading oral as well as mainly documentary evidence that the present suit is in respect of the same cause of action as that on which the previous suit was based. It would be incorrect to say that in the previous suit, no evidence was led by any of the parties and the same was dismissed for want of prosecution on failure of the plaintiff to appear and lead evidence and so provisions of O.2 R.2 of CPC is not applicable. According to us, the scheme of O.2 R.2 of CPC is discussed by the lower Court in a bit confused manner. The Lower Court also should have dealt with relevant issue viz. issue No. 9-A independently rather than dealing with the said issue with issue as to whether the suit is barred by the principles of res judicata. O.2 of CPC deals with the frame of the suit and each plaintiff is supposed to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. While filing the earlier suit, the plaintiff was aware as to how and why the excess amount has been claimed and recovered by the defendant Board. On that day also, the plaintiff was aware that after installation of the new Trivector Meter parallel to old existing meter No. 12636824 and after comparing the rotation of both the meters in accordance with the law and rule framed thereunder, and the existing old meter of the company was found rotating slow by a specific percentage viz. 5.87% and on that basis the excess amount was claimed and was recovered by way of adjustment against credit amount, as per supplementary bills issued by the defendant Board. R.2 of O.2 of CPC confers certain privileges in favour of the plaintiff who brings the suit, but simultaneously it imposes an embargo or say restriction in claiming /bringing the another suit for any of the reliefs which he could have prayed in the earlier suit. R.2 of O.2 of CPC is divided in to three sub-rules and the scheme is based on the principle that defendant may not be and should not be vexed twice for one or the same cause of action. It is true that this rule is not really a matter of substance, but it simply deprives the plaintiff claiming his remedy and does not vest any right in favour of the defendant, but in absence of permission, defendant can positively make a grievance that he has been wrongly vexed again for the same alleged wrong. Again the phraseology used in sub-rule 3 of rule-2 of O.2 of CPC creates implied bar. Undisputedly, the plaintiff company even its say is accepted as it is, was entitled to more than one relief including declaration and other consequential reliefs on the day on which the first suit was filed and it was entitled to sue the defendant Board for all or any of such reliefs. Some commission in praying such reliefs even inadvertently, would go to the root of the 2nd suit if the same is filed on one or the same cause of action. It is not the say of the plaintiff that proper permission of the Court was obtained when earlier first suit was filed. For any of the reliefs which have been now claimed in the present suit, the effect may be either of commission or of relinquishment of part or of total claim, but the effect would be the same. According to us, finding recorded by the lower Court is incorrect that the 2nd suit is based on a distinct and/or separate cause of action. It is settled that when the plaintiff in a suit based on accounts, omits some item, he cannot sue again in respect of the item so omitted. It is likely that several transactions may have given rise to one cause of action or there may be more than one cause of action based on the same transaction from one single account, but even where there are different contracts or entries in the account, yet if they form full or part of one transaction, breach of all such contracts or improper entries of accounts, should be construed as only one cause of action so far as the scheme of O.2 R.2 of CPC is concerned. It is not the case that on the date of filing of the first suit, the plaintiff was not aware about the actual amount which he could have claimed as amount erroneously or illegally recovered by the defendant Board. In the first suit, the substantial claim was against the defendant Board and not against the State of Gujarat. Clever drafting of pleadings so far as paragraph referring to the cause of action by itself would not take out the plaintiff from legal disablement in bringing the second suit on the same or one cause of action because plaint as a whole is to be read in reference to the relevant documentary evidence as well as oral evidence which the plaintiff normally could have led to succeed in the first suit. According to us, the documents which have been produced in the present suit in support of the say of the plaintiff and the documents on which the plaintiff has placed reliance produced from the custody of the defendant, were already available on the date of filing of the first suit. Removal of the meter No. 12636824 on 22.1.1987 has not given rise to the cause for filing the present suit. It would be wrong to observe that the defendant must establish that the 2nd suit is in respect of the same cause of action and that on which the previous suit was based. In such or similar case, the defendant is supposed to make grievance before the Court that he has been again vexed with fresh litigation on the same cause of action. While raising this plea as one of the pleas in defence, the defendant can produce the copy of the plaint filed earlier. The ld. Lower Court ought to have considered the basic contentions raised in the second suit for the purpose. The deposition of the Manager Mr. Ramjivan Rampratap Singal exh.37 should be evaluated in the background of the documents exh.20 & 39. The beck-billing is for the period of three months i.e. within the limits provided by section 26 of the Act and on the strength of the 2nd meter, supplementary bill of Rs. 21,0,304-92 ps. for the period between 6.12.1981 to 9.9.1982 was issued and thereafter, subsequent bills were issued from 9.9.1982 as per the reading of the 2nd parallel meter. Undisputedly, the trial checking of the original meter and placement of the 2nd / trivector meter has been made in presence of the representative of the company namely Mr. Malavia. Copy of the plaint of the first suit i.e. Spl.Civil Suit No. 7/1986 is also on record. Intimation exh.31 regarding the bill as per the new parallel meter has been ignored by the ld. Lower Court. Merely because the 2nd meter was removed on 22.1.1987, it cannot be said that the same has given rise to the cause under which the plaintiff can claim the amount recovered by way of adjustment of the account on or about 1.5.1986. Undisputedly, the earlier suit was filed after recovery by way of adjustment from the amount lying in the credit account. The phraseology used by the plaintiff in the earlier suit explaining the cause for filing of the suit to the effect that the "plaintiff reserves right to recover..... the amount" would not help the plaintiff but it affects adversely. Plaint of first suit has to come on record and thereafter it is obligatory on the part of the plaintiff to satisfy the Court that cause of action and in the subsequent suit is either distinct or different cause of action and/or it was not obligatory for the plaintiff to seek the permission from the Court when first suit was filed and the case does not fall in the category of either omission or relinquishment. The authorities referred to and relied upon by the lower Court are not in reference to the suit based on accounts or interpretation of a contract. We agree that the suit of the plaintiff could not have been dismissed on the principle of res judicata, but the same should have been dismissed in view of the embargo emerging from the scheme of O.2 R.2 of CIVIL PROCEDURE CODE. We are not in agreement with the finding recorded by the lower Court that "these rules are not applicable to this case."
6. The plea raised by the defendant Board that the 2nd suit is even otherwise time-barred also needs consideration. As per the facts mentioned, while dealing with the findings recorded by the ld. Lower Court in reference to Issue Nos.9-A & 9-B and 5, it is clear that without prejudice to the contentions raised by the defendant Board and for the sake of arguments if it is accepted that the removal of the 2nd meter on 22.1.1987 is an additional factor, then also the receipt of 1st bill on the strength of placement of 3rd meter, could be the latest date for the purpose of deciding the issue of limitation i.e. issue No. 5, because the 2nd meter has been removed undisputedly on 12-1-1987 and the present suit has been filed on 30.1.1991. It is not on record that when first bill was received by the plaintiff company after removal of the 2nd meter. Ld. Lower Court, while dealing with the issue of limitation, has accepted the say of the plaintiff that the suit is based on accounts and as excess amount has been recovered by the defendant Board from the plaintiff and amount required to be shown as credit, has not been shown, the question of limitation does not arise. The ld. Lower Court has erroneously held that the suit of the plaintiff is within time as the same is based on accounts which is continuous one. It is not correct to say that recovery made by adjusting the amount on 1.5.1983 has any relation with the act of removal of 2nd meter in the month of January 1987. So, on this sole ground of limitation, ld. Lower Court ought to have dismissed the claim of the plaintiff treating it to be time-barred.
7. Now, it is not necessary for the Court to deal with or decide other points raised and arguments canvassed before us by the appellant Board or resistance put forward by the ld. Senior Counsel Mr. Tanna appearing for the original plaintiff. This appeal can be allowed on above counts holding that the finding recorded by the ld. Lower Court in reference to Issue Nos. 9-A, 9-B and 5 are erroneous and require to be reversed and suit can be dismissed quashing the judgment and decree. However, according to us, this is a case wherein we should also deal with other factual as well as other legal aspects brought before us so that the plaintiff should feel that the substantive justice is done to the company, being the successful plaintiff before the Lower Court. In our considered opinion, the plaintiff has even no case on merits. We are not in agreement with the submissions of ld. Sr. Counsel Mr. Tanna that it was obligatory on the part of the defendant Board to take dispute before the Electricity Inspector when it was pointed out by the plaintiff company that the original meter was rotating correctly and parallel meter was moving fast approximately by 6%. It is contended by the plaintiff that the 2nd meter and/or parallel meter of the defendant Board was moving fast approximately by 6%. However, on appreciation of evidence, it transpires that the plaintiff has slightly modulated his stand and has attempted to impress upon the Court that the subsequent meters were moving fast by 5.87%. As per the document exh.18, the defendant Board was informed by the plaintiff that the meter placed by the Board is moving fast by 1.9%. The say of the defendant Board is that the original meter was found rotating slow by 5.87%. It seems that the allegation of the fast movement of the parallel meter and/or second meter to the extent of 5.87% is made only with a view to justify the stand of the company taken in the earlier suit that the original meter was showing correct reading and the rotation of the meter was not slow as alleged by the defendant Board otherwise exactly similar percentage might not have been pleaded by the plaintiff company especially in absence of any cogent, convincing evidence as to the speed of all the three meters. On the contrary, the defendant Board has fairly accepted that during the laboratory testing, second meter was found moving fast by 1.19 %. So, there is no dispute that the 2nd meter was bit fast. This cuts the case of fast movement pleaded quoting percentagewise. This percentage would be 5.87% minus 1.19%. Even otherwise, it is rightly argued by ld. Sr. Counsel Mr. Pandya appearing for the defendant Board that this percentage is within the permissible limits. In support of this submission, Mr. Pandya has quoted relevant rule-57 of The Indian Electricity Rules, 1956 and it would be appropriate to quote the same:-
"57. Meters, maximum demand indicators and other apparatus on consumer's premises:-
(1) Any meter or maximum demand indicator or other apparatus, placed upon a consumer's premises in accordance with Section 26, shall be of appropriate capacity and shall be deemed to be correct if is limits of error are within the limits specified in the relevant Indian Standard Specification and where no such specification exists, the limits of error do not exceed 3 per cent above or below absolute accuracy at all loads in excess of one-tenth of full loads and up to full load.
Provided that for extra high voltage consumers the limit of error shall be 1 per cent.
(2) No meter shall register at no lood.
(3) Every supplier shall provide and maintain in proper condition such suitable apparatus as may be prescribed or approved by the Inspector for the examination, testing and regulation of meters used or intended to be used in connection with the supply of energy:
Provided that the supplier may with the approval of the inspector and shall, if required by the inspector, enter into a joint arrangement with any other supplier for the purpose aforesaid.
(4) Every supplier shall examine, test and regulate all meters, maximum demand indicators and other apparatus for ascertaining the amount of energy supplied before their first installation at the consumers' premises and at such other intervals as may be directed by the State Government in this behalf.
8. It is argued that if slowness in the movement of the original meter of the company would have been found within the permissible limits, then Board could not have charged the company for such negligible slowness of the meter or negligible difference. However, as movement was found slow beyond permissible limits of percentage, supplementary bill was issued and the amount was adjusted on the basis of the said bail. Ld. Sr. Counsel Mr. Anna has submitted that fixation of the parallel meter by the defendant Board and fact of not taking the dispute before the Electricity Inspector and absence or non -availability of test report of the original meter of the company from the authorised laboratory, the defendant Board was not authorised to issue supplementary bill and to adjust the amount lying as credit in the running account. According to Mr. Tanna, the defendant Board has ignored the provisions of Section 26 of the Act. According to Mr. Tanna, Electricity Inspector becomes an important person as and when dispute is raised. The proviso of sub-section 7 of section 26 of the Act should be read in reference to sub sections 4, 5 & 6 of Section 26 of the Act. The checking squad inspected the plaintiff Company on 2.2.1982 and because of the dial test indicative of slowness, had tempted GEB to put a parallel meter. It is not the case of the plaintiff that the parallel meter was not set up as per norms or the same installation was, in any way, technically defective. According to Mr. Tanna, when plaintiff company has refused to accept the version of the checking squad that existing meter was running slow by some percentage, then it was the duty of the defendant Board to send the original meter for checking and the dispute so raised was required to be placed before the Electricity Inspector. It was obligatory on the part of the defendant Board to go to the Electricity Inspector and not the plaintiff company. Mr. Tanna has tried to submit that the Board who wants money i.e. excess amount by issuing supplementary bill, should go to the Electricity Inspector raising dispute as to "incorrectness of existing meter" as the dispute qua "the meter". When the defendant Board was inclined to set up a parallel meter, allegedly tested by the laboratory maintained by defendant Board itself, then that procedure also ought not to have done after intervention of the Electricity Inspector, otherwise the defendant Board can be said to have acted as " Judge of its own cause." In support of his submission, Mr. Tanna has placed reliance on the decision of the Apex Court in the case of M.P. Electricity Board & Others v/s Smt. Basantibai, reported in AIR 1988 SC 71. Referring paras-8, 9, 10 & 13 of the said decision, Mr. Tanna has submitted that the dispute whether the disputed meter was correct or faulty is to be decided by the Electricity Inspector and unless the dispute raised is decided, pending such dispute, Electricity Board cannot issue supplementary bill or threaten disconnection of supply of electricity. The plaintiff was threatened disconnection when it was issued with supplementary bill in the month of May 1983 though there was legitimate dispute as to speed of the parallel meter fixed by the Board. In cited decision, the Apex Court was dealing with the decision in the case of one Basantibai in connection with the writ petition filed by the petitioner consumer and a letter issued by the State Electricity Board calling upon the petitioner consumer to pay the amount as per the supplementary bill with threat of disconnection if the amount is not paid, was under challenge. The meter of the consumer was found burnt. It was also the case that out of three phases, one phase was not working when the responsible engineer visited the consumer, bodyseal of the meter was found intact. However, the say of the respondent Board in reply affidavit was that there was fraud in breaking the body seal and the consumer got the meter burnt as the meter, according to the Board, did not burn ordinarily. The stand taken by the State Board as to the fraud played was never intimated to the consumer and it was on record that when the Engineer of Electricity Board visited the industry, the seal was found intact. In the present case, it is not the allegation against the company that any fraud has been played, or a case of theft of electricity supply. In the present case, in presence of the responsible officer of the company, the correctness of the existing meter was decided by placing the parallel trivector meter and to confirm the dual test done manually. The office of the defendant Board at the relevant point of time, authorised the officer concerned to inspect the meter and even to remove the meter fittings. Every notice for disconnection cannot be equated with the threat under the Scheme if Section 24 and sub-section (4) of Section 26 of the Act are read in harmony. In the cited decision, the consumer was not reconnected with electricity supply, but in the present case as the company being reputed and involved in manufacturing activities round the clock, the defendant Board has opted to decide the correctness of the movement of "a meter" in accordance with law and especially as provided under sub-section (1) read with sub-section (7) of Section 26 of the Act. The defendant Board attempted to confirm its reading taken on dial testing manually by putting the parallel meter. So, the ratio of the decision of the Apex Court, according to us, would not be applicable to the facts of this case.
9. Mr. Tanna has placed reliance on other two decisions viz (i) H.D. Shourie v/s Municipal Corporation of Delhi & Anr., reported in AIR 1987 Delhi 219, and (ii) Topasa Ramasa Patil v/s Karnataka Electricity Board Bangalore & Others, reported in AIR 1989 Karnataka 279. We have gone through aforesaid decisions and in our view, the ration propounded in the said decisions would also not help the plaintiff company because both these decisions deal with the scheme provided under sub-section (6) of Section 26 of the Act which authorises the Electricity Inspector to take decision on the dispute in question. What is implicit is the requirement of the Inspector following the principles of natural justice and before giving his opinion as regards the state of the meter and coming to a conclusion as to what was the extent of electricity consumed during the period when the meter was allegedly defective, both the parties have to be given a reasonable opportunity of representing their case. In the case of H.D. Shourie (supra), Electricity Inspector was never brought in picture and licensee had taken one sided decision and that too without bringing alleged facts to the notice of the consumer and behind his back. In the case of Topasa Ramasa Patil (supra), Karnataka Electricity Board raised the bill without approaching the Electricity Inspector and getting the meter tested. Karnataka High Court found that the respondent Board has wrongly resorted to misbilling in respect of the meter installed in the business premises of the petitioner on account of slow reading. It was not the case of the plaintiff in the earlier suit filed that he has offered his meter to be tested through the Electricity Inspector and dispute may be referred to the Electricity Inspector, nor it was contended that the allegation of incorrectness of the trivector meter parallelly installed was moving fast by 5.87% or 6%. Immediately, the correctness of the parallel meter so fixed in accordance with the provisions of sub-section (7) of section 26 of the Act was not disputed nor the Board was requested to send both the meters to the Electricity Inspector, putting third meter, date and time gap in the present case available on record are very relevant in evaluating the case put forward in the second plaint. In the case of Topasa Ramasa Patil (supra), the Karnataka High Court rendered said decision based on the observations made by the Apex Court in the case of Smt. Basantibai (supra) as the Karnataka High Court found that the dispute squarely falls with the scheme provided under the Act and it is the Electricity Inspector who alone is empowered to decide such dispute. In the present case, slow movement of the original meter was tested percentagewise by placing parallel meter in accordance with law and as it was found that meter was moving slow not within the permissible limits, supplementary bill was issued and act of issuance of supplementary bill in May 1983 was challenged in the earlier suit. Again the same is challenged in the present suit. In both the aforesaid decisions rendered by the Delhi High Court as well as Karnataka High Court respectively, the method of placing the parallel meter was not adopted by the licensee. So, these two decisions also would not help the plaintiff company. The finding of the ld. Lower Court that it was obligatory on the part of the defendant Board to refer the dispute to Electricity Inspector, issuance of supplementary bill and recovery of the amount lying in the credit account is illegal, reasons assigned are not found sustainable as they are erroneous. It seems that the Lower Court has mainly concentrated on sub-section (6) of Section 26 of the Act and decision of the Apex Court in the case of Smt. Basantibai (supra).
10. On the contrary, ratio of the decision of this Court in the case of Quality Steels and Forgings Ltd. & Another v/s Gujarat Electricity Board & Another, reported in AIR 1988 Gujarat 121, would help the defendant Board more wherein this Court has observed that under the provisions of Section 24 of the Act, the licensee has powers to cut off the connection if the dues are not paid and consumer has a right to approach the Electricity Inspector if there is bona fide dispute about the demand made. The consumer must approach the Inspector and he cannot just seat silent over the matter after the disputed demand. Similar observations have been made by the Allahabad High Court in the case of Shree Lakshmi Ice Mills, Muzaffarnagar v/s Executive Engineer, Electricity Maintenance Division, Muzaffarnagar, reported in AIR 1987 All.115. Referring to the provisions of Section 26(6) of the Act and the agreement between the parties, the High Court has observed that the Executive Engineer was perfectly within his right in fixing the check meter in order to ascertain whether the meter installed on the premises of the petitioner concerned was working properly or not. There is no provisions either in Clause 19 of the agreement or in Section 26(6) of the Act which obliges the respondent to refer the dispute for adjudication of the Electrical Inspector before making necessary adjustment on the basis of the reading of the check meter. When it was the say of the plaintiff company that the Trivector meter parallelly fixed was moving fast up to 6%, then it could have approached the Electrical Inspector as to this difference or regarding dispute qua any matter referred in sub-section (1) of Section 26 of the Act. The correctness of even parallel meter so fixed could have been challenged before the Electrical Inspector. Such parallel meter is supplied to the consumer by licensee for recording quantum of energy consumed to the consumer, the plaintiff company has not opted for that action. On the contrary, the defendant Board before raising demand by issuing supplementary bill and notice to disconnect in the event of failure of payment so demanded under Section 24 R/w sub-section (4) of Section 26 of the Act, has taken the recourse of the Scheme and the procedure provided under Section 26(7) of the Act. Ultimately, the meters are installed to measure the electricity supply so consumed by the consumer and where there are no serious allegations as to fraud, electricity theft, the procedure prescribed under sub-section (7) of Section 26 should be followed. It would be advisable where industry is engaged in manufacturing activities or in an institution engaged in activity or service round the clock. It is true that Madhya Pradesh High Court in the case of M/s Regal Theatre & Others v/s M.P.E.B., Ranpur & Others, reported in AIR 1987 MP 276, has observed that the consumer disputing claim regarding wrong recording by consumer's meter, for 2/3rd consumption, it was incumbent on Board to refer the dispute to Electrical Inspector for his decision and Board could not itself decide that the meter is not recording the actual consumption. However, in this decision, ld. counsel appearing for the respondent Board has fairly conceded that "he is not in a position to support the stand taken by the respondents in their return though he urged that as a matter of fact, the petitioners had never objected when tested with check meter, a substantial difference of 2/3rd of electric consumption was in fact recorded when compared with electric meter installed on theatre, owing to which it was not necessary to refer the dispute to the Electrical inspector. " In this decision, points raised by the ld. counsel appearing for the respondent Board were not raised in the return i.e. reply affidavit. We are of the considered view by reading the entire decision, that the scheme of sub-section (7) of Section 26 of the Act conferring a privilege was not brought to the notice of the MP High Court.
11. The ratio of the decision of the Apex Court in the case of Bewlwal Spinning Mills Ltd. etc. v/s U.P. State Electricity Board and another, reported in AIR 1987 SC 2793 clinches the issue. Taking care of the provisions of Section 26(6) of the Act, the Apex Court has observed in paras 37 & 38 as under :-
"37. After giving our careful consideration to the facts and circumstances of the cases in these appeals and the submissions made by Mr. Gupta, Mr. Sen and Mr. Andherujina, the learned Solicitor General, it appears to us that Section 20 of the Electricity Act authorises the licensee to enter the premises of the consumer to remove fittings and other apparatus installed by the licensee. Clause(a) of sub-section (1) of Section 20 authorises the licensee to enter the premises of the consumer for 'inspecting, testing, repairing or altering the supply lines, meters, fittings and apparatus for the supply of energy belonging to the licensee. The licensee, therefore, cannot only enter the premises of the consumer for inspecting, testing etc. but the licensee also can alter the meter whenever such alteration is needed. Such power under section 20 does not depend on the adjudication of correctness of the meter and other apparatus by the Electrical Inspector on a reference under Section 26(6) of the Electricity Act. But such powers flows from the statutory duties and functions of the licensee to maintain the correct meter for recording the quantum of electricity supplied to the consumer. Such duty to ensure maintenance of correct meter in the premises of the consumer has been indicated in sub-section (1) and sub-section (2) of Section . The power of removing the meter under Section 20, however, is circumscribed by the proviso to sub-section (4) of Section only when the dispute as to the functioning of the meter has been referred to the Electrical Inspector under sub-section (6) of Section . A licensee is authorised under sub-section (7) of Section to place in addition to the meter installed in the premises of consumer as referred to in sub-section (1) of Section , other meter or apparatus as the licensee deem fit for the purpose of recording or regulating the amount of energy supplied to the consumer. Such power also does not depend on the existence of any dispute as to the correctness of the meter installed.
38. Check meter is usually installed for the purpose of checking and ascertaining the proper functioning of the installed meter but there is no legal bar treating the check meter as an altered meter in place of the meter installed earlier when on checking the meter the licensee has has found it to be defective. Such power of installing the meter, replacing it by another meter is also independent of existence of any dispute between the consumer and the licensee."
12. The parallel meter fixed by the defendant Board in the present case, undisputedly was trivector meter duly checked by the laboratory maintained by the defendant Board established under the Statutory Rules which has no special significance or legal incidence for which there is a bar that the check meters cannot be treated as an altered meter if the licensee intends to replace the defective meter by the check meter. In the present case, the check meter was fixed parallel so comparison of both was even possible by the officers of the plaintiff company. The plaintiff company maintains electricity department and has engineer employees of its own. It is open to the Electrical Inspector to ascertain the correctness of the check meter along with the disputed meter. In the present case, the plaintiff while sitting silent till l986 when first suit came to be filed, has attempted to recover the huge amount with interest. The present second suit seems to be an afterthought. Licensee is duty bound to instal the correct meter and, therefore, it is also bound to maintain the Laboratory so that after certain observations and checking, the correct meter can be installed at the premises of the consumer. The consumer can very well say that the meter so fixed by the licensee Board is giving correct reading of consumption of electric supply, but it does not prevent the licensee Board in testing the meter of consumer. On the contrary, it authorises the Board and defendant Board in the present case has opted to fix the parallel trivector meter some period and manually recorded dial reading, was ultimately found correct. The act of removing 2nd meter in the year 1987 because it was found to be shooting high, has no bearing on the merits of the present suit.
13. We are inclined to quote some observations made by the Apex Court in the case of I. Jagannath Singh alias Jainath Singh & Ors. v/s B.S. Ramaswamy (now Krishna Murthy), reported in AIR 1966 SC 849. Though same deals with a criminal case i.e. criminal appeal dealing with the construction of Sections 39 & 44 of the Act and Rule 138 of the Indian Electricity Rules, 1956. The appellants were held guilty and convicted under Sections 39 & 44 of the Act. The Apex Court has observed that:-
(5) The exposure of the stud hole permits the insertion of foreign material inside the meter retarding the rotation of the inside disc, and is thus an artificial means for preventing the meter from duly registering the energy supplied. For purposes of S. 44, the existence of such an artificial means raises the presumption that the consumer, in whose custody or control the meter is, wilfully and knowingly prevented the meter from duly registering . To raise this presumption, it is not necessary to prove also that the consumer was responsible for the artificial means or that the meter was actually prevented from duly registering. The appellants did not rebut the presumption, and were rightly convicted under S. 44.
(6) The High Court also convicted the appellants of the offence under S. 39. It held that the exposure of the stud hole was an artificial means of abstraction of energy and was prima facie evidence of dishonest abstraction by the consumer. Section 39 reads:
"Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code; and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction."
14. The Apex Court, according to us, has said that checking meter affords easy method of proving that the consumer meter is recording less than the units consumed. In the present case, without alleging any malafide against the plaintiff company, the Board was authorised to raise supplementary demand. It is not the case that calibrated meter was not even tested by the Laboratory maintained by the Licensee Board. We have already quoted Rule: 57 of the Rules which provides to have Laboratories and to keep such meters ready, in para-7 of this judgment.
15. It seems that the ld. Lower Court while dealing with the merits of the case, has ignored the legal, undisputed oral as well as documentary evidence on record and has given unnecessary and undue weightage to the fact of removal of 2nd meter in the year 1987 and the technical phraseology used qua the 2nd meter so removed that the same was "shooting high." It would not be correct to infer that a meter which was found shooting to the maximum gives always incorrect reading. It is nothing in the evidence to show that when first supplementary bill was issued in the year 1983, Trivector meter parallelly fixed was giving incorrect reading than the permissible limits of percentage. 16. The plaintiff company has placed reliance on all the documents either referred to or relied upon by filing Reg. Civil Suit No. 76/86. Paras- 8 & 9 of the said suit reads as under:-
"8. Cause of action has arisen when defendants put new Trivector meter No. 26628293 on 9.9.1982 and send the suppli bill on 12.5.1983. The suit is within time so the Hon'ble Court has jurisdiction to hear and try the suit."
Relief prayed in sub-para(B) of para-9 of the said suit reads as under:-
"9(B) To declare that the plaintiff is entitled to recover the amount of electricity energy charges paid to the defendant on the basis of new meter and difference thereof with effect from 9.9.1982."
17. Having considered all the relevant record produced by the plaintiff, it reveals that the plaintiff company had demanded test certificate for the new Trivector meter - TV meter parallelly installed by the defendant Board- supplied to the plaintiff company on 6.12.1983. The document exh.31 is the letter addressed to the President of the plaintiff company by the Executive Engineer, Porbandar dated 29.9.1982 whereby it was intimated that the TV Meter is provided for reading of power supply. Before 9 months, this meter was checked by installation checking from the Board and the meter was found to be slow by about 5%. So, it was suggested that one check TV meter should be put into service with existing TV meter and be tested on long run test. The company was also intimated that the Board has decided to keep new meter for recording reading from 9.9.1982 and existing meter will be taken out for testing and adjusting in the laboratory and the company was also informed that accurate percentage of slowness will be computed and company will be billed for excess for all the period in accordance with the directions received from the Head Office. In response to this letter, the plaintiff company had written a letter on 20.12.1982, but it is on record that on all the occasions, both the meters were watched by the responsible officer of the Board as well as by the plaintiff company and before issuing supplementary bill, the reading of both the meters i.e. existing meter and series TV meter installed by the Board for the purpose of checking were recorded in the presence of Mr. B.J. Malaviya, Senior Plant Superintendent of the plaintiff company. This document is at exh.32. Comparison of reading taken by the officers jointly are of 9.9.1982 and 27.12.1982 and undisputedly, the revised supplementary bill was issued thereafter. According to us, the letter exh.34 whereby the meter No. 26628326 was installed as the existing meter was shooting to the maximum in the month of January, 1987, has no bearing on the merits of the present case. It would be beneficial to refer to and reproduce the relevant sub-section (1), (4), (6) & (7) of Section-26 of the Act, as under:-
"Sec.26. Meters- (1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter:
Provided that the licensee may require the consumer to give him security for the price of a meter into an agreement for the hire thereof, unless the consumer elects to purchase a meter.
(4) The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove any meter referred to in sub-section (1): and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter is found to be otherwise the correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses the meter shall be referred to an Electrical Inspector, and the decision of such Inspector shall be final:
Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in sub-section(6) has arisen until the matter has been determined as therein provided.
(6) Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained is the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity:
Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days' notice of his is intention so to do.
(7) In addition to any meter which may be placed upon the premises of a consumer in pursuance of the provisions of sub-section (1), the licensee may place upon such premises such meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply:
Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in sub-section (1):
Provided, also that where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence of an agreement the contrary, keep the meter, indicator or apparatus correct; and the provisions of sub-section (4),(5) and (6) shall in that case apply as through the meter, indicator or apparatus were a meter referred to in sub-section (1)."
So, the say of ld. Sr. Counsel Mr. Tanna is not found convincing that the moment on which the officers of the plaintiff company refused to accept the version that the existing meter is moving slow by any percentage, it was obligatory on the part of the defendant Board to refer the dispute to the Electrical Inspector and there was no scope or authority to issue any supplementary bill till the dispute is resolved by the Electrical Inspector being the only authorised person under the provisions of the Act as well as Rules. The provisions of sub-section (4) of section-26 of the Act put an embargo on the authority of the Board to take off or remove any such meter if any difference or dispute of the nature described in sub-section (6) of Section 26 of the Act has been raised. According to our considered opinion, as such no positive dispute was raised when checking squad was watching the existing meter and dial checking was on. So, the action taken in accordance with the above referred sub-section (7) of Section-26 of the Act by the Board was absolutely legal and the Board was not obliged to file an application before the Electrical Inspector to resolve the dispute. On the contrary, the defendant Board intimated the plaintiff company that the existing meter was found moving slow by 5.87% and the company shall be served with the supplementary bill and the Board was to consider the reading taken jointly by the officers of the Board and the plaintiff Company, the plaintiff company ought to have approached the Electrical Inspector by moving an application invoking the powers of the Electrical Inspector under section 26(6) of the Act. For short, filing of the present 2nd suit is certainly an after thought. We are not supposed to comment upon as to what would have happened if the plaintiff would have continued earlier suit and led evidence, but while appreciating the present case on merits, we can positively observe that even on merits, the company has no case. So, finding of the trial Court declaring the plaintiff company successful on merits also requires to be reversed.
18. It is true that the laboratory report produced by the plaintiff company clearly indicates that even the new meter i.e. Series TV Meter parallelly installed was found to be running fast by 1.9%, the amount of supplementary bill so issued by the Board could have been reduced by the Board accordingly. Of course, no such formal relief has been prayed and as we have held that the present 2nd suit is also not maintainable in view of the provisions of O.2 R.2 & O.9 R.9 of C.P. Code, it would not be legal and proper for us to draw any decree of such nature. However, it will be open for the defendant Board to consider the representation of the plaintiff company if made to reduce the amount of supplementary bill it being the Public Undertaking and the plaintiff company otherwise is a regular consumer, especially when there are no allegations of malafide practice or theft.
19. For the reasons aforesaid, appeal is allowed. Judgment and decree dated 30.9.1995 passed by the ld. Civil Judge (S.D.), Porbandar in Civil Suit No. 2/1991 is hereby quashed and set aside. The suit of the plaintiff company is hereby dismissed with costs throughout.