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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Sree Rajeswari Mills Ltd. - Appellant
Versus
Union of India and Ors. - Respondents
A.S. No. 995 of 2009
Decided On : 19-03-2019
Civil Pr4ocedure Code,1908 - Order 7 - Rule 11 - Section 80 - Electricity Act, 2003 - Sections 26 (6) ,126, 127, 143 and 145 of 2003 Act - Indian Electricity Act, 1910 - Section 26 - Indian Electricity Rules, 1956 - Rule 57 (4) - Challenge - Suit for permanent injunction - Medium scale industry engaged in manufacture of cotton - Terms and Conditions of Supply of Electricity - Plaintiff which is a medium scale industry engaged in manufacture of cotton had filed suit on file of Additional District Judge Karaikal for following reliefs for a declaration that Electricity demands raised by defendant department authorities from to March for plaintiff HTSC Karaikal are all illegal invalid unlawful void an not binding on plaintiff - For a declaration that plaintiff is entitled to adjustment of amounts paid by them under mistake of law towards such bills from to March with interest at rate of p.a. And - For a declaration that plaintiff raised bonafide dispute about correctness of meters and readings consequential relief of permanent injunction restraining defendant department authorities and others claiming under them from disconnecting plaintiffs HT service connection Thennagudi for nonpayment of bills from March onwards and cost of this suit - Suit was resisted by defendants board and in written statement filed by defendant which was adopted by defendants and would inter alia contend that entire case of plaintiff would rest upon report of an engineer which procedure is unknown to provisions of Indian Electricity Act - They would further contend that correctness of meter or otherwise was governed by terms of Government of Puducherry which states that if test of error had not exceeded levels laid down under Indian Electricity Rules or any other Statutory notification it shall be deemed that entries are correct - Defendant board would further submit that between period plaintiff had not reported any inaccuracy in reading and thereafter between both dates being inclusive defects were reported and entered in metering card - During period for which meters were reported defective billing was done as per Clause 50 of Terms and Conditions of Supply of Electricity - In fact between period plaintiff company was subject to billing months and out of this only eight were reported defective - Defendants had rejected report submitted by expert stating that report is just based on a theoretical formulae and not on actual usage - Whether any meter referred to in Sub Section (1) is or is not correct matter shall be decided upon application of either party by an Electrical Inspector and where meter has in opinion of such Inspector ceased to be correct such Inspector shall estimate amount of energy supplied to consumer or electrical quantity contained in supply during such time not exceeding six months as meter shall not in opinion of such Inspector have been correct but save as aforesaid register of meter shall in absence of fraud be conclusive proof of such amount or quantity - Held, Under section 145 of Act - As already stated section 145 contemplates bar of jurisdiction only in cases falling under provisions of section 126 and 127 namely theft of energy - Coming to issue of rejection of plaint it is seen that in Judgement reported in Madras Race Club v. M. Victor and Others this Court had considered various situations in which plaint could be rejected - This Court had gone on to hold that when dealing with an application under provisions of Order 7 Rule 11 of Code of Civil Procedure only basis on which same could be rejected is averments contained in plaint and documents filed there on - Averments in written statement or documents filed by defendant would not give rise to a situation to reject plaint - However reading of Section 145 of Act would clearly indicate that it is only in cases coming within provisions of sections 126 and 127 that jurisdiction of Civil Court stands ousted - Further reading of explanation to Section 126 would clearly indicate that issue of defective meter does not come within scope of section 126 and consequently will not attract bar of section 145 - Civil Court not to have jurisdiction - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act - Appeal Suit Stands Allowed
JUDGMENT :
P.T. Asha, J.
1. The plaintiff is the appellant challenging the rejection of their plaint in O.S. No. 9 of 2007 on the file of the Additional District Judge, Karaikal. The facts in brief that has prompted and that has necessitated the filing of the above first appeal are as follows:
2. Plaintiff's Case
2.1. The plaintiff which is a medium scale industry engaged in the manufacture of cotton had filed the suit in O.S. No. 9 of 2007 on the file of the Additional District Judge, Karaikal for the following reliefs
(a) for a declaration that the Electricity demands raised by the defendant department authorities from 12/89 to March 2007 for the plaintiff HTSC Karaikal are all illegal, invalid, unlawful void an not binding on the plaintiff;
(b) for a declaration that the plaintiff is entitled to adjustment of the amounts paid by them under mistake of law towards such bills from 12/89 to March 2007 with interest at the rate of 18% p.a. And;
(c) for a declaration that the plaintiff raised bonafide dispute about the correctness of the meters and readings consequential relief of permanent injunction restraining the defendant department authorities and others claiming under them from disconnecting the plaintiffs HT service connection Thennagudi for non payment of the bills from March, 2007 onwards and cost of this suit.
2.2. With effect from 29.12.1989, the plaintiff was extended power supply by the defendants and at the time of the initial supply, the sanctioned demand was 500 KVA and at the time of filing of the suit, the demand had been enhanced to 900 KVA. From 27.08.2004, the plaintiff felt that the power supplied was not commensurate to the production and had therefore started addressing letters to the defendant requesting them to attend to this complaint. This was followed by the filing of a Writ in W.P. No. 34854 of 2005 which was disposed by order dated 28.10.2005 with directions.
2.3. Thereafter, a check meter was installed by the Department on 24.10.2005. However, this check meter was installed without furnishing details of the last test provided under section 57(4) of the Indian Electricity Rules.
2.4. The plaintiff had once again raised the dispute on 19.01.2006 and the second defendant had passed a non speaking order against which the plaintiff had filed an appeal before the first defendant on 11.04.2006. Considering the fact that the defendant Board was not evincing any interest in rectifying the dispute, the plaintiff engaged the services of a former Chief General Electrical Engineer belonging to the Southern Railway to inspect the mill and to check the electricity consumed vis-à-vis the production of cotton yarn for the period 29.12.1985 to date. At the request of the plaintiff, the said expert had also visited the mill in the last week of March 2007 and submitted an audit report dated 02.04.2007. A perusal of the said report revealed the following:
(a) The meter recording the electricity consumed was defective
(b) The meter (now in use) which was installed on 10.10.2001 and the check meter which was installed on 24.04.2007 also shows that the meters are defective on various days stated in the report.
(c) Therefore the demand for the period 29.12.1989 to February 2000 was also valid since the report would indicate that right from the date of installation, the meter is defective.
2.5. On various occasions, the defendant department had also conceded and confirmed that the meter was defective. It was also the practise of the authority not to inform the plaintiff before the meter was rectified and therefore the plaintiff was not able to suggest that the meter be tested by a Electrical Inspector before the same was replaced.
2.6. Taking into consideration the defects in the meter, on 10.10.2001 an electrical meter was installed and the initial reading was however not recorded which is evident from the entries and this was clearly violative of Rule 57 (4) of the Indian Electricity Rules. The plaintiff would further submit that even
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