Shinghal, J. - (1.)The trial court's decree in his favour having been set aside by the judgment and decree of the lower appellate court dated Sept. 27, 1960, the plaintiff has preferred the present appeal.
(2.)The plaintiff owned the "Chitra Talkies" in Pali, which, after a while, came to be known as the "Rajendra Talkies". He took an electric connection from the defendant company for the exhibition of films in Pali at the rate of annas 3 per unit because that was the maximum rate of supply for industrial concerns. He installed a one-phase rectifier in the cinema house and started exhibiting the films from Aug. 18, 1950 onwards. The defendant company sent its bill for the months of Aug. and Sept., 1950, at the rate of annas 3 per unit, and it was paid at that rate under a receipt dated Oct. 6, 1950. The plaintiff pleaded that he installed the single-phase rectifier after consultation with the defendant company, but when the company found that he had made enough investment in installing it, it sent a letter to him (plaintiff) on Sept. 20, 1950 intimating that it would charge at the rate of annas 3 per unit only if the plaintiff installed a three- phase rectifier, and that it would, otherwise, make the charge at the rate of annas 8 per unit for use of electric energy on the single-phase rectifier. The plaintiff pleaded that he was thus forced to pay for electric power at the rate of annas 8 per unit from Oct. 9, 1950 to March, 1954 because he would otherwise have been put to a considerable loss, but that this payment was made under protest. Admitting that his claim for refund for the period Oct., 1950 to Feb., 1951 had become barred by time, the plaintiff prayed for the recovery of the extra payment made during the period March, 1951 to March, 1954, at the rate of annas 5 per unit, the ground for the claim being that the excess amount had been recovered against the contract and contrary to the law. The plaintiff appended a schedule with his plaint and prayed for a decree for Rs. 5,923/7/- with interest at 6 per cent per annum and costs.
(3.)The defendant denied the claim altogether. It pleaded that even though the plaintiff asked for the supply of power in his application (Ex. A. 1) dated Aug. 4, 1950, he installed a one-phase rectifier which only generated light and not power. The defendant also pleaded that it was entitled to charge at the rate of annas 8 per unit under its license for the supply of "light energy". Further, it pleaded that the plaintiff did not take its permission to install a single phase rectifier, that it did not enter into any agreement for the supply of energy at annas 3 per unit for use of energy by such a rectifier and that the plaintiff's was not an industrial concern. It was claimed that the defendant was entitled under the law to charge at the rate of annas 8 per unit for supply of energy of the kind used by the plaintiff in respect of his one phase rectifier and it was denied that the plaintiff had taken the approval of the defendant for the installation of the one-phase rectifier. It was pleaded that an agreement for the supply of motive power could only be effective in the case of a three phase supply. It was also pleaded that as the load of electric energy gets unbalanced in all circumstances when a one phase rectifier is used against a three phase supply system, the defendant was entitled to make the charge as for the supply of "light". It was thus the main line of defence that the defendant was entitled to charge at the rate of annas 8 per unit because the plaintiff had installed a one-phase rectifier whereas it should have placed a three-phase rectifier. It was also an important defence that "power" was not at all consumed in the plaintiff's cinema house, but that he only utilised the "light" which was chargeable at the rate of annas 8 per unit. It was denied that the payment at that rate by the plaintiff was made under protest and it was pleaded, on the other hand, that the plaintiff willingly went on paying at that rate. A plea of acquiescence was also taken to deny the claim for repayment and it was stated that if the plaintiff had made any protest, the defendant would never have supplied energy at the rate of annas 3 per unit on an installation of a single phase rectifier and that the energy was supplied under the belief that the plaintiff was willing to make payment for it at the rate of annas 8 per unit. The plaintiff filed a replication denying the defence, but it is not necessary to refer to it in any detail.
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