JUDGMENT :

SUVIR SEHGAL, J.

1. This order shall dispose of both above noted appeals, as they involve common questions of law and fact.

2. For the sake of convenience, factual position is being taken from RSA-34-1995.

3. Appellants-defendants are in second appeal assailing concurrent finding recorded before Trial Court as well as First Appellate Court.

4. Respondent-plaintiff filed a suit for declaration and permanent injunction averring that he is running a factory of cotton ginning and spinning and is entitled to all benefits of a seasonal industry as per sales manual instructions. It has been pleaded that plaintiff has been complying with all conditions of the instructions. Plaintiff has a contract demand of 300 KVA and a meter of HT type was installed in November, 1989. When plaintiff realized that meter was not working properly, he sent an intimation on 09.11.1989, Ex. P-1, which was followed by a reminder dated 21.11.1989, Ex. P-2, but defendants did not change the meter. Defendants sent an ad hoc bill for month of November 1989, on the basis of consumption for month of November 1988, which plaintiff deposited under protest. Challenging the ad hoc billing, plaintiff filed a suit for declaration. Upon notice, suit was contested by defendants, wherein seasonal nature of work carried by plaintiff was admitted. It was conceded that plaintiff had been informing defendants regarding operation of factory premises. It was averred that on receiving intimation, Ex. P-1, meter was tested by Mobile Meter Testing Squad on 22.02.1990, and it was found that counter of KWH meter was not moving due to an internal defect. KVAH meter was found to be 3.14% fast and MDI was running fast by 3.04%. It has been stated that bill has been issued on the basis of consumption of November, 1988. On basis of pleadings of parties, issues were framed by Trial Court and both parties led evidence in support of their respective stand. After hearing the parties, suit was partly accepted by Trial Court vide judgement and decree dated 30.07.1992. Defendants were restrained from making a recovery of disputed bill. Appeal filed by defendants was rejected by learned Additional District Judge vide judgment dated 14.05.1994. Hence, the present second appeal.

5. By making a reference to circular No.11/1990, Ex. P-6, counsel for the appellants has argued that appellants-defendants had specified schedule of rates and method of arriving at these rates, which had been charged from respondent. He urges that criteria for levying consumption charges has been laid down in sales manual as per which if one of meter component is not working, calculation through other methods, load capacity and power consumed can be arrived at. Counsel asserts that demand raised was valid as per regulations framed by appellants and findings recorded by both the Courts are erroneous.

6. There is no representation on behalf of respondent.

7. I have heard counsel for the appellants and considered his submissions besides examining requisitioned record.

8. The admitted case of parties is that there is a snag in the electricity meter. The stand taken by appellants in their written statement and also evidence laid by them is that counter of KWH meter was not moving due to an internal defect. KVAH meter and MDI were found to be running fast. It is, therefore, evident that meter was defective. Section 26 of The Indian Electricity Act, 1910 (for short “the Act”), casts an obligation of electricity board to ensure that electricity meter is functional and running normally. Sub Section (6) to Section 26 ibid lays down that in case of any dispute or difference as to whether any meter is serviceable or not, such a dispute shall be referred to an Electrical Inspector by either of parties by moving an application. Where an Inspector finds that meter has ceased to be functional, he shall estimate amount of energy supplied to consumer during the period of defect and shall levy charge for the same for a period not exceedin