IMPORTANT POINT
Although ex parte order is recalled but the complaint is not maintainable for refund as payment has already been made with eyes open.

Palok Basu, President — Three complaints C/242/92, 244/92 and 245/92 raised identical issues though complainant in each one of them differently designed while all the opposite parties are same. One Miscellaneous matter has to be dealt with before proceeding with the merits of the matter. As far as Complaint No. 242/1992 is concerned, it has been dismissed in default on 9.1.2004 noting in that order that evidence was not filed. Restoration application has been filed by Sri V.P. Sharma for recalling of the order alleging therein that evidence was already filed which could not be brought to the notice of the court and the complaint may have, therefore, been decided on merits. Copy of the restoration application has been served on Sri Deepak Mehrotra appearing for all the opposite parties. The restoration application is supported by an affidavit filed on behalf of the complainant. No objections have been filed. The grounds are sufficient and consequently ex parte order dt. 9.1.2004 is recalled and the matter is restored to its original number. The Misc. Case No. M/42 is thus finally disposed of.

2. Reverting back to the merits of the matter, the only issue raised in the complaints is that the complainant in each of the complaints is entitled to the refund of what is alleged as excess payment. The other prayer is that along with the excess amount interest should be paid to the complainant by the opposite parties.

3. The relief claimed in Complaint No. C/242/92 is in the following shape.

“PARIVADI NIMN UPKSHAM PANE KE ADHIKARI HAIN—

AA— PARIVADI KO VIPAKSHIGAN SE JUNE 1987 SE MAY 1991 TAK VIDHYUT BILLON KI ADHIK VASULI GAI RASHI RUPAY 1,50,290.56 AVAM JUNE 1987 JULY 1991 TAK 2 PARTISHAT MASIK KI DAR SE BYAZ RUPAY 61,592.11 AVAM KUL RASHI RUPEY 2,11,883.67 PAR 24 PARTISHAT VARSHIK KI DAR SE MAY 1991 TAK KA BYAZ BHUGTAN KARNE KE DINANK TAK DILAYA JAY.

BA— PARIVADI KO JANBUZHKAR HAIRAN VA PARESHAN KARNE KE LIYE RUPEY 50,000/- MANSIK SANTRAS AVAM

UKT VIDHYUT BILLON KO LAGATAR VIDHYUT AAPURTI KE BILLON KO THEEK KARNE KE LIYE DILAYE JAYEN.

SA— PARIVADI KO ES PARIVAD KA VYAY RUPEY 5,000/- AVAM ADHIVAKTA KI PHEES RUPEY 5,500/- DILAI JAY.

DA— ANAY KOI UPSHAM JO NAYA-YALAYA UCHIT SAMJHE.”

4. The amounts are different but the reliefs claimed in the other two complaints C/244/92 and C/245/92 are identical.

5. Sri V.P. Sharma assisted by

Sri S.S. Nair, Advocate has appeared

for the complainant in each of the cases while Sri Deepak Mehrotra has appeared for all the opposite parties on the three complaints. Affidavits and evidence

have been exchanged. All the three

complaints are, therefore, ready for final decision.

6. The point canvassed on behalf of the complainant is that the industry was charged at the tariff fixed for continuous process industry while according to the allegation of the complainant, the said tariff was not applicable because

the industry was not using continuous power.

7. Sri Deepak Mehrotra relied upon the pleadings of the opposite parties and argued three points. First, the allegation that continuous process power was not consumed is incorrect and has been made with ulterior purpose. Second, the type of machinery used was not detailed in the complaint to indicate justifiability of the claim of non application of continuous process industry tariff. Third, the payment has already been made with eyes wide open and the machinery was being used for several years before the complaint has been filed which is an afterthought and has been preferred with ulterior motives. The complaint is not maintainable and the preliminary objection raised on behalf of the opposite parties states that such refund claim is not to be gone into by a consumer redressal agency and further that since tariff matter is involved, it is all the more the reason why the complaint should not be entertained.

8. On behalf of the complainant, it is sought to be argued that since four letters were sent to the opposite parties, they were duty bound to take action in ac