The electricity board's right to recover arrears under Section 24 of the Indian Electricity Act, 1910, is not barred by limitation.

1. The above second appeal has been filed against the judgment and decree of the learned District Judge, Salem, dated 1. 1983 in A.S. No. 129 of 1982, whereunder, the First/Appellate Judge has chosen to set aside and reverse the judgment and decree of the learned trial Judge and dismissed the suit.

2. The suit O.S.No.225 of 1981 was filed by the respondent-plaintiff on the file of the District Munsif Court, Mettur, for declaring that the claim of Rs. 14,536.20 said to be the penal charges on the excess over quote consumption for service connection 702 of Omalur, which stands in the name of the plaintiff and included in the electric bill for the month of July, 1980 is illegal, arbitrary and unenforceable in law and for a permanent injunction restraining them from disconnecting the service connection for the nonpayment of the alleged sum of Rs. 14,5320. The service connection in question pertains to a cinema theatre at Omalur and there can be no dispute that at the relevant point of time, quota system was enforced on account of the power cut between September, 1976 and April, 1977 during which period, the plaintiff was said to have been given only 500 Units of electricity per month on condition that any excess consumption would be charged at a special rate. The case of the plaintiff appears to be that there are no arrears of electricity charges, but the Department as issued Exhibit B-4 notice on 37. 1980, claiming an arrears of Rs. 14,536.20 on the basis of audit report pursuant to which a working sheet was prepared of the quantum said to be due from the appellant. The further plea on behalf of the plaintiff was that the claim made is barred by limitation and therefore, no coercive steps can be taken to collect the same by threatening disconnection. The defendants representing the Board as noticed earlier, based on the materials gathered during the course of audit and the report submitted thereafter fixed the excess energy consumed during the period of power cut and it was contended that this vital fact was overlooked resulting in an error and could be detected only in June, 1979 and therefore, the claim is well in accordance with law and the plea of limitation will not avail the plaintiff in any manner to avoid the payment of the said amount as also the recovery thereof by the Board, having recourse to penal action.

3. On the above claims and counter claims, the suit came to be tried and oral and documentary evidence was adduced on both sides. The learned trial Judge came to the conclusion that the suit claim was barred by limitation and therefore, decreed the relief as claimed in its entirety by the grant of even permanent injunction. As a matter of fact, in paragraph 6 of the judgment of the learned trial Judge, it is stated "the plaintiff is not questioning the correctness of payment. The plaintiff is now questioning the right of the defendants to reopen the account long after the period of limitation. If the defendants have filed a suit for the disputed amount, the plaintiff will be entitled to plead limitation successfully."

4. Aggrieved, the Board filed an appeal in A.S.No.129 of 1982. The learned First Appellate Judge by his judgment and decree dated 1. 1983, as noticed earlier, differed from the conclusions arrived at by the learned trial Judge, placing reliance upon the decision reported in Mudaliandan Chettiar v. Ranganathan and others, 81 LW 383. It appears the plea on behalf of the Board before the learned First Appellate Judge was that the plea of limitation cannot be used as a sword but could be used only as a shield. That was a case werein despite the fact that the arrears of rent were for period, which could be held in a suit for recovery as time barred, the tenant would still be under a legal obligation to deposit the arrears in proceedings instituted under Section 11 of the Act before contesting the claim for eviction under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act. Th