Signing of plaint by the Superintending Engineer.

The defendant, a consumer of electricity under the Madras State Electricity Board, has filed this second appeal, challenging, inter alia, the claim for the recovery of the annual minimum amount guaranteed under an agreement for supply of electricity. The agreement was entered into on 2nd February, 1954, by the electricity department of the State of Madras and by and under the agreement the defendants had agreed to take supply of electric energy for a ten horse-power motor in his field bearing S. No. 726 in Naduhalli village, Salem District. The agreement provided that the defendant was liable to pay to the Government a minimum charge of rupees three hundred and fifty per annum for a period of ten years from 18th July, 1954, that is from the date on which the supply was available to the defendant at his end, whether electric energy was consumed or not. There was provision in the agreement for disconnecting supply after seven days notice for non-payment of bills within thirty days. The defendant failed to pay the current consumption charges for the month of June, 1957, and after due notice to the defendant, the supply was disconnected on 31st August, 1957. The suit has been filed for recovery of arrears to the tune of Rs. 1,150-53 for the period 31st August, 1957, to 17th July, 1959. It may be stated that on 1st July, 1957, the rights of the State Electricity Department vested in the Madras State Electricity Board, the plaintiff in the suit, and the suit has been instituted by the Board for the recovery of the arrears.

Various defences were raised, but only two of them have been persisted in: (i) whether the plaint has been properly signed and verified on behalf of the plaintiff Board, and (ii) whether the provision for the payment of the sum of rupees three hundred and fifty, the minimum payable under the agreement by the defendant, whether he consumed electricity or not, was not a penalty clause and so unenforceable.

A further point was raised that whereas the agreement was for the supply for a ten horse-power motor, actually the supply was only for a five horse-power motor. Therefore, it was argued that the plaintiff had failed to act in terms of the agreement. This last plea is wholly devoid of substance. P.W. 2, the supervisor, has deposed that while the department was in a position to give supply for ten horse-power motor, the defendant himself represented that he had installed only a five horse-power motor and wanted electricity to be supplied accordingly, though the sanctioned capacity was ten horse-power.

To take-up the first point; the plaint has been signed and verified by the Superintending Engineer, Mettur Electricity System. The plaintiff Board came into existence on the 1st of July, 1957, under the Electricity (Supply) Act LIV of 1948. Under section 12 of the Act the Board is a body corporate by name having perpetual succession and a common seal. The relevant provision applicable in the matter of signing and verifying pleadings is Order 29, rule 1 of the Code of Civil Procedure, which provides that any pleading in suits by or against a Corporation may be signed and verified on behalf of the Corporation by the secretary or by any director or other principal officer of the Corporation, who is able to depose to the facts of the case. The Courts below have elaborately examined the position and pointed out that the Superintending Engineer is a principal officer of the Corporation who could depose to the facts of the case. Under the administrative rules governing the Corporation the administration of an electricity system is in charge of the Superintending Engineer and rule 122 states that the Superintending Engineers of the power systems are empowered to accept an agreement for low-tension supply of power. In the instant case the Superintending Engineer alone has signed that suit agreement on behalf of the plaintiff Board. He is certainly a principal officer of the Corporation, and Order 29, rule 1, Civil Proced