A suit challenging a penalty imposed by the Electricity Board for alleged misuse of electricity is not maintainable without exhausting the remedy provided under the terms and conditions of the contract, specifically Clause 9 of the Schedule to Terms and conditions of supply of Electricity by the Tamil Nadu Electricity Board, which provides for an initial assessment notice and an appeal process.

The second appeal has been directed against the judgment and decree in A.S.No.30 of 1986 dated 9. 1987 on the file of the Subordinate Judge, Salem, reversing the judgment and decree of the learned District Munsif, Attur in O.S.No.1 of 1983 dated 12. 1986.

2. The plaintiffs are the appellants. The respondents Electricity Board issued notice to the plaintiffs to pay certain amount which they calculated on the ground that the electricity in respect of service connection 420 for agricultural purposes has been misused and the water pumped from the well had been taken to the Sago Factory nearby which is not permitted under the Electricity Supply Act and therefore the plaintiffs have to pay the penalty calculated by the Board. The suit was instituted questioning the above penalty on the ground that no notice has been issued by the Electricity Board Officials before making the inspection. The Electricity Board in the written statement contended that inspection has been made as per the procedure. The maintainability of the suit as framed has also been questioned by the Electricity Board.

.3. On the pleadings of the parties the learned District Munsif, Attur, formulated the necessary issues. On the evidence adduced by the parties both oral and documentary, the learned District Munsif, reached to the conclusion that the suit as framed is maintainable and ultimately decreed the suit as prayed for. Aggrieved by the said judgment and decree, the Electricity Board preferred A.S.No.30 of 1986 on the file of Principal Subordinate Judge, Salem. The first appellate Judge, on an reappraisal of the evidence, reached to the conclusion that the trial court has committed a grave error in rejection the evidence adduced on behalf of the Electricity Board. In particular, the first appellate Judge found that the Electricity Board has proved that through underground pipes water has been taken to the sago Factory from the well intended for agricultural purposes. The objection raised by the plaintiffs in the first Appellate court regarding res judicata has also been held to be untenable. Ultimately. the learned first appellate Judge by his judgment dated 9. 1987 allowed the appeal, reversed the judgment and decree of the trial court and dismissed the suit, against which the present second appeal has been preferred.

4. Thesubstantial question that was submitted by the learned counsel for the appellants is that notice in writing ought to have been issued by the Electricity Board Officials before conducting an inspection regarding the illegal abstraction of the energy and using the water intended for agricultural purposes for the Sago Factory.

5. Reliance was placed by the learned counsel for the appellants on a decision of the Karnataka High Court in M/s.Southern Steelmet and Alloys Ltd., Bangalore v. Karnataka Electricity Board, Bangalore and another M/s.Southern Steelmet and Alloys Ltd., Bangalore v. Karnataka Electricity Board, Bangalore and another M/s.Southern Steelmet and Alloys Ltd., Bangalore v. Karnataka Electricity Board, Bangalore and another A.I.R. 1991 Karn. 267. In the said judgment at the end of paragraph 9 the learned Judge has observed that, “in the absence of notice to the consumer or its representative, no credibility can be given to the inspection conducted by the Electricity Board Officials of the Electricity Board to proceed with the inspection if the consumer or his representative does not turn up to witness the inspection.

.6. Per contra, the learned counsel for the respondents Electricity Board invited the attention of this Court to the decision of this Court in Tamil Nadu Electricity Board v. D.K.Kanniappa Mudaliar Tamil Nadu Electricity Board v. D.K.Kanniappa Mudaliar Tamil Nadu Electricity Board v. D.K.Kanniappa Mudaliar 1984 L.W. (Crl.) 239. Dealing with the aspect of notice the learned Judge has made in the following observation in paragraph 6:

.“On a careful consideration of the abovesaid section, I find that it