S. N. Variava, J. - (1.) This Appeal is against an Order dated 14th August, 1991 passed in Letters Patent Appeal No. 69 of 1990, by which the Appeal has been dismissed in limine. The Letters Patent Appeal was against an Order dated 20th January, 1989 read with an Order dated 2nd May, 1990, wherein an Appeal filed by the respondent had been allowed.
(2.) Briefly stated the facts are as follows : On 12th January, 1972 the appellants and the respondent entered into an agreement whereunder the appellants were to supply to the respondent High Tension electricity for a contract demand/load of 1500 KVA at 11000 volts. The relevant Clauses of the Agreement are 4(a), 8 and 9. They read as under : "4(a) The consumer shall pay to the Board for the energy so supplied and registered as aforesaid at the rates given in the Schedule, provided that the minimum charge as specified in the schedule appended hereto shall be paid irrespective of whether energy to that extent has been consumed or not. ********** ********** 8. The agreement shall be ordinarily in force for a period of not less than 3 years in the first instance except in exceptional cases in which written consent of the Board will be taken, from the date of commencement of supply i.e.____________________ and thereafter shall continue from year to year until the agreement is determined hereinafter provided. 9. The consumer shall not be at liberty to determine this agreement before the expiration of 3 years from the date of commencement of the supply of energy. The consumer may determine this agreement at any time after the said period on giving to the Board not less than twelve calendar month's previous notice in writing in that behalf and upon the expiration of the period of such notice this agreement shall cease and determined without prejudice to any right which may then have accrued to the Board hereunder provided always that the consumer may at any time with the previous consent of the Board transfer and assign this agreement to any other person and upon subscription of such transfer this agreement shall be binding on the transferee and Board and take effect in all respect as if the transferee had originally been a party hereto in place of the consumer who shall thenceforth be discharged from all liability under or in respect thereof. If a consumer, whose line has been disconnected does not apply for reconnection, in accordance with the law within the remainder period of the compulsorily availing of supply or that of notice whichever be longer, he will be deemed to have given a notice on the date of disconnection in terms of the aforesaid clause 9 for determination of the agreement." Thus it is to be seen that even though energy may not be consumed minimum charges had to be paid. The agreement was to be for a period of 3 years and thereafter to continue from year to year until it was determined. Under Clause (9) the consumer could not determine before the expiration of 3 years but could determine, after the expiry of 3 years, on giving a 12 month's previous notice in writing. Also if the line has been disconnected, and the consumer did not apply for reconnection within the remainder period of compulsory availing of supply or of notice then the date of disconnection shall be deerned to be the date of notice for determination of agreement.
(3.) In 1973-74 the respondent addressed several letters to the appellants to reduce the contract demand from 1500 KVA to 1000 KVA. The respondent also requested the appellants to reduce the period of the agreement from 3 years to 2 years. Ultimately, by a letter dated 12th February, 1974 the Respondent requested that the agreement be determined with effect from 1st March, 1974 and that thereafter they be given a temporary supply of 500 KVA. The appellants did not agree to this. It is an admitted position that, in spite of respondent' letters, the agreement subsisted till February, 1975. On 24th February, 1975 the respondent addressed a Letter to the appellants, which reads as follows : "This is for your kind information that from 1-3-75 we shall stop availing construction power being supplied to us at 33 KV 3 phase 50 c/s A.C. from your sub-station at Bhurkunda. Please therefore arrange to disconnect the supply from 1-3-75 and take charge of your metering equipment installed at our end." Pursuant to this request the appellants disconnected the electricity. In May, 1975 the appellants submitted to the respondents a Bill which, inter alia, contained an amount towards the minimum charges for the period 1st March, 1975 to 28th February, 1976. As the amounts of the Bill were not paid a Notice dated 18th May, 1976 was addressed by the appellants to the respondent. As the payment was still not made a recovery certificate was issued on 2nd August, 1978.;