Judgment

B.K. PATEL, J.

In this writ petition, the petitioner-consumer has made prayer to quash demand notice dated 21.10.2011 as revised by notice dated 25.10.2011 at Annexure-8 series for Minimum Charges issued by the opposite parties representing distribution company WESCO and to direct opposite parties to refund security deposit made by the petitioner under Agreement dated 5.9.2009 at Annexure-2 with interest with effect from 1.8.2011.

2. Facts culminating in filing of the writ petition are as follows:

2.1 Petitioner, a company registered under the Companies Act, 1956, is engaged in manufacturing of sponge iron and generation of electricity by a captive power plant (CPP).

2.2 The petitioner and WESCO entered into standard Agreement dated 23.4.2005 and Amended Agreement dated 25.6.2008 at Annexure-1 series respectively for supply of 3000 KVA power to the petitioner initially and reduction of contract demand from 3000 KVA to 1500 KVA w.e.f. 1.1.2008 subsequently. Paragraph 3 of the Amended Agreement dated 25.6.2008 provided, inter alia,

“The previous agreement executed with M/s Aryan Ispat & Power Pvt. Ltd. on 23rd April, 2005 will be superseded by the present Agreement w.e.f 01.01.2008.”

2.3 The petitioner and WESCO entered into fresh Agreement dated 5.9.2009 at Annexure-2 for enhancement of contract demand to 3000 KVA for a period of one year and thereafter to 5000 KVA. In accordance with the stipulation at Clause-5 of the Agreement at Annexure-2, the petitioner paid Rs.81,68,352/- towards security deposit and a new consumer account bearing BRL/6-0041 was allotted to the petitioner. Clause-9 of the Agreement at Annexure-2 provided as follows:

“All arrears, liabilities and security deposit under the agreement executed earlier with M/s Aryan Ispat and Power Private Limited, bearing consumer No.BRL/6-0041 in the same premises shall be treated as arrear, liabilities and security deposit under the present agreement. The previous power supply agreement executed with M/s Aryan Ispat and Power Private Limited on 25.06.2008 will be superceded by the present agreement from the date of availing power supply of 3000 KVA after observing all departmental formalities.”

Duration of Agreement was stated to be commencing from the date of availing power supply and to continue to be in force until the expiry of five years from the date of supply, and thereafter to continue until the Agreement was determined by either party giving to the other, two calendar month’s, notice, in writing, of its intention to terminate the Agreement.

2.4 Petitioner commissioned its CPP in the year 2010 and submitted letters under Annexure-3 series for emergency supply only as per Regulation 80(15) of the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004, (for short, ‘OERC Code’).

2.5 WESCO by letter dated 4.3.2011 under Annexure-4 series accorded permission for emergency power supply only to the petitioner and directed the petitioner to execute a fresh agreement, and pointed out that regular power supply was to be disconnected immediately after supply of emergency power supply. As required by WESCO in their letter dated 21.07.2011 under Annexure-5 series petitioner deposited Rs.1,30,00,000/-towards security deposit under intimation to WESCO by letter dated 23.07.2011 at Annexure-5 series.

2.6 Agreement for emergency power supply dated 23.07.2011 at Annexure-6 was executed between the parties, clause-9 of which reads as follows:-

“All arrears and liabilities under the agreement executed earlier with M/s Aryan Ispat and Power Private Limited bearing consumer No.BRL/6-0041 in the same premises shall be treated as arrear and liabilities under the present agreement. Similarly, all dues such as security deposit demand charges, over drawl charges, penalty refundable to M/s Aryan Ispat and Power Private Limited will be refunded with immediate effect. The previous power supply agreement executed with M/s Aryan Ispat and Power Private Li