JUDGMENT

Vivek Singh Thakur, J. - This application has been filed by applicantdefendant No.2 National Hydro Power Corporation Limited (in short 'NHPC') for interim directions under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure Code (in short 'CPC').

2. Non-Applicant plaintiff, Himachal Pradesh State Electricity Board Limited (hereinafter referred to as the 'Board') has filed main suit for recovery of Rs. 1,53,79,285/- alongwith pendente lite and future interest @ 16% per annum from the defendants with respect to electricity connection provided to non-applicant/defendant No.1 at the work site of NHPC allegedly leviable upon non-applicant/defendant No.1 for unauthorized use of electricity as violation charges during existence of connection of electricity supply to non-applicant/defendant No.1. According to plaint, it was informed by NHPC that non-applicant/defendant No.1 has deserted construction site. It is further case of the Board that NHPC being a principal contractor has admitted its liability and agreed to pay electricity charges, but despite various reminders, it has failed to do so and, therefore, NHPC is also liable to pay electricity charges for consumption of electricity in execution of its work.

3. An application under Order 38 Rule 5 CPC has also been filed by the Board for attachment of the property of defendants before judgment.

4. Now, this application has been preferred by NHPC against non-applicant/plaintiff for restraining it from taking any coercive action in the form of denying a power connection of 3- phase, 2077KW (Contract demand 1400 KVA), 11 KV to NHPC at its Parbati Hydro Electric Project Stage-II-I site at Village Sheela, Barshaini in District Kullu and seeking direction to the Board to allow aforesaid power connection and issue Power Availability Certificate (in short 'PAC') in favour of NHPC during pendency of the suit. It is case of NHPC that despite the fact that dispute regarding recovery of Rs. 1,53,79,285/- is pending adjudication in the main suit, the Board is taking coercive action by not issuing PAC and providing power connection of 3-phase referred supra and is raising demand for payment of aforesaid amount, regarding which recovery suit is pending, before processing application of NHPC.

5. In response to the application, the Board has taken a stand that Himachal Pradesh Electricity Regulatory Commission, in exercise of power conferred in it, under Section 50(x) of subsection (2) of Section 181 of the Electricity Act, 2003, read with Section 21 of the General Clauses Act, 1897, has made Regulations which have been notified in Himachal Pradesh Rajpatra on 04.07.2020, wherein it has been clearly stipulated that without clearing arrears, fresh connection cannot be granted in the same premises. It is further submitted that Himachal Pradesh Electricity Supply Code 2009 (in short 'Electricity Supply Code, 2009'), as amended from time to time, in its Clause 5.2.13A, provides that in case of connection supply, sought to be released in the name of original consumer or owner or their legal heir, entire outstanding amount shall be recovered before release of new connection or release of supply for the premises in question and, therefore, in view of proviso to Clause 5.2.13A, NHPC is liable to pay charges and consequently this application is not maintainable. It is also contended on behalf of the Board that as per provisions of 36.2.5.2.(4) Electricity Sales Manual Part-1, provides for charges to be levied at the time of restoration of supply after permanent disconnection and recovery of all outstanding amount of previous connection and as per mandate of Statute, new connection cannot be given without clearing previous charges/dues.

6. Main objection raised on behalf of the Board is that defendant-NHPC is precluded from filing present application and as such, this application is not maintainable and, therefore, liable to be dismissed as NHPC, being defendant, has no right