Calcutta High Court (Appellete Side)
M/S. Gsb Toolcrafts Pvt. Ltd vs Cesc Ltd. & Others on 18 May, 2016
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
SPECIAL CIVIL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 28501 (W) of 2015
M/s. GSB Toolcrafts Pvt. Ltd.
Vs.
CESC Ltd. & Others.
For the petitioner : Mr. Uddipan Banerjee, Advocate
For the respondent nos. 1 & 2 : Mr. Madhusudan Saha Roy, Advocate
Heard on : 05.01.2016, 21.01.2016, 09.03.2016
Judgement on : 18.05.2016
Sambuddha Chakrabarti, J.:
The petitioner has been enjoying industrial electric connection. Its factory once belonged to the respondent no. 3 from whom it had purchased it on July 8, 2005 upon payment of consideration.
The case of the petitioner is that at the time of purchase of the said factory premises a meter was installed there in the name of the respondent no. 3 who intimated the petitioner that there was due in respect of the said connection. The petitioner applied for a separate industrial meter and the respondent no. 1 without raising any objection installed an industrial meter after receiving a sum of Rs. 1,26,649/-.
The petitioner alleges that all of a sudden some personnel of the respondent no. 2 came to its factory and disconnected the supply standing in the name of the respondent no. 3. The authority is alleged to have verbally intimated that the said meter was earlier disconnected in the year 2002. The respondent no. 3 filed a writ petition before the High Court. Although there was an interim order of restoration of electric supply the writ petition was ultimately dismissed and the authority again disconnected the supply on the ground of non-payment of dues.
The further case of the petitioner is that the licensee had asked it to pay the dues of the respondent no. 3 which the petitioner had flatly declined on the ground that the alleged incident of theft of electricity had taken place long before it purchased the property.
The petitioner had received a notice dated February 9, 2015 issued by the respondent no. 2 whereby the authority claimed Rs. 73,560/- plus applicable interest for Rs. 4,88,402/- till November 9, 2015 on account of the disconnection of the meter standing in the name of the respondent no. 3. That letter is under challenge in the present writ petition.
The Nodal Officer, Loss Control Cell of the licensee company filed an affidavit in response to the allegations made by the petitioner. According to him, the supply of electricity for industrial use to the respondent no. 3 was disconnected on July 12, 2001 at the said premises for unauthorized use of electricity. He filed a writ petition in this Court and the High Court directed restoration of electricity subject to payment of Rs. 32,000/-. Supply was restored through a new meter. The adjudicating authority passed an order where the charge for unauthorized use of electricity was assessed at Rs.1,17,894/-. The respondent no. 3 preferred an appeal and the assessed charges were reduced to Rs. 1,05,560.28. The respondent no. 3 filed a second writ petition which was dismissed on July 10, 2015 and supply was disconnected on July 30, 2015.
The respondent no. 2 submitted that the petitioner is a subsequent consumer and owned the self-same industrial establishment which was earlier owned or occupied by the respondent no. 3. It also revealed from a recent inspection of the premises that the load of industrial establishment was catered from the supply of the defaulting consumer till it got further disconnected on July 30, 2015.
The claim of unauthorized use of electricity is still unsettled and the petitioner has been enjoying the supply in the name of the petitioner at the self-same premises as a subsequent consumer without settling the earlier claim. From this, the licensee company submitted that there was a clear nexus between the petitioner and the respondent no. 3 and the licensee is entitled to recover the outstanding dues of the erstwhile consumer from the petitioner.
Therefore, the question that falls for consideration is whether the impugned letter dated November 9, 2015 is valid and whether the licensee could call upon the petitioner to ensure payment of Rs. 73,560/- plus applicable interest for Rs. 4,88,402/- as the unsettled dues of the respondent no. 3. The basis of the claim of the licensee is that the petitioner had owned and occupied the same industrial establishment which was earlier owned and occupied by the respondent no. 3. In support of his contention Mr. Madhusudan Saha Roy the learned advocate for the licensee has relied on a judgment in the case of M/s. M. K. & Sons Vs. CESC Ltd. & Others, reported in AIR 2012 Cal 19. In that case the appellant was a registered partnership firm, comprising four partners and one of them was the vendor of the premises. The appellant firm purchased the premises with an undertaking to pay the outstanding dues of the vendor. The original vendor was also a partner of the firm. Clause 4 of the deed of sale specifically recited that all rates, taxes, revenues etc., in respect of the property had been paid and cleared in full and the vendor undertook to keep the purchaser indemnified against any claims, demands, expenses, losses as may be suffered by the purchaser. By the said clause the purchaser had taken up the liability of paying all outstanding dues of the vendor. From the above set of facts the court concluded that it was apparent that to evade the outstanding liabilities of the consumption of electricity the appellant took the tenancy from one of the partners to avoid responsibility of payment of the outstanding dues. In that context, the Division Bench found a clear nexus between the two.
Mr. Saha Roy has further relied on a case of the Division Bench in this Court in MAT 178 of 2010 wherein the Division Bench had relied on the judgment of the Supreme Court that the electricity company can stipulate as one of the conditions for supply that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner should be cleared before the electricity supply is restored and a fresh connection is provided to the premises.
The problem, however, should properly be approached from the question of petitioner's knowledge about the outstanding dues in respect of the electric charges in the premises in question. If he has knowledge of any sum lying outstanding in respect of an electric meter and still uses it his liability or complicity cannot be brushed aside. The petitioner in the present case himself has admitted that at the time of purchase of the factory premises the respondent no. 3 had intimated him that there were dues in respect of the electric connection. The respondent no. 3 further undertook in the deed of sale that he is responsible for any due in respect of the said connection and he would pay the same. From the deed of sale it appears that the vendor had agreed to pay the outgoing municipal rates, taxes, electrical charges, land revenues etc., in the said premises and agreed to keep the purchaser fully indemnified against all or any claim arising in respect therefor.
Thus, the knowledge on the part of the petitioner about the outstanding is no longer a matter of presumption and the inspection made it very clear that the load of the industrial establishment was being catered from the supply of the defaulting consumer. It as a matter of fact continued till it was disconnected on July 30, 2015. I thus find no reason to interfere with the conclusion made in the letter impugned. There were good reasons for arriving at it.
There is no merit in the writ petition and the same is dismissed.
The interim order, if any, stands vacated.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee