- (1.) Special leave granted.
(2.) We have heard the learned counsel on either side. This appeal arises against the judgment of the division bench of the Calcutta Highcourt dated 21/05/1991 granting interim direction pending the matter arising under Article 226 of the Constitution. The appellant admittedly supplies electric energy to the respondent-mill and in terms of the contract the appellant, as contended by its learned counsel had to supply the electric energy and the respondent had to pay the consumption charges as well as surcharge on delay in payment thereof plus additional security deposit on average of three months' consumption of electricity as per section 24 of the Indian Electricity Act, 1910. It is the case of the appellants that the respondent-mill had undertaken in July 1990 to make the payment of the arrears at the rate of Rs. 10 lakhs per month in addition to regular consumption charges till all the arrears were liquidated and had also undertaken to furnish the additional security and to pay surcharge on the delayed payments but the respondent-mill committed default. The appellants, therefore, issued notice of disconnection and challenging the validity thereof, a writ petition was filed in the High court. Ultimately in that writ petition direction given to pay the arrears at the rate of Rs. 10 lakh per mensern till all the arrears were liquidated became final and again default was committed. Again notice of disconnection was issued. The second writ petition was filed and in the second writ petition, the learned Single Judge directed to deposit at the rate of Rs. 6 lakhs per mensern. When challenged, on appeal the impugned order was passed. The High court directed as an interim measure that the respondent-mill should pay the balance sum of Rs. 25 lakhs within five months from the date of the order and first instalment shall be payable on or before 15/06/1991 and thereafter on the 15th of every succeeding month. The instalment paid shall not be less than Rs. 4 lakhs per mensern. However, the entire dues shall be liquidated within five months as stipulated earlier. If any default is committed, then the appellant shall be at liberty to disconnect the supply after giving three days' clear notice.
(3.) It is contended by Sri P. P. Rao, the learned senior counsel for the appellants that when the High court had given direction in the first writ petition, the respondent-mill had committed default and that, therefore, the second writ petition is not maintainable. We do not propose to go into this aspect of the matter since it was not raised in the High court. It is next contended that the appellants are entitled in terms of Section 24 of the Indian Electricity Act, 1910 to the current rate of consumption charges and also surcharge on delayed payment and additional security. The respondent-mill is bound to comply thereof. Having undertaken in the contract and also as per the order of the High court in the first instance the respondent-mill is bound to make payment in terms thereof. Sri A. N. Sen, the learned senior counsel for respondent-mill contendedthat under Section 3 of the Sick Industrial Companies (Special Provisions) Act, 1985, on 6/09/1990 the respondent-mill has been declared as a sick mill and proceedings have been initiated before the board for Industrial and Financial Reconstruction (hereinafter referred to as B. I. F. R. ). The appellant company is one of the creditors and it has to lay its claims and decision is to be 'rendered by the Board. The respondent-mill is not obligated in these circumstances to pay the same. It is a matter pending in the High court. The liability to pay to the appellant was disputed before the High court. The B. I. F. R. 's order would become final and that, therefore, the respondent has been paying only the current consumption charges. The directions cannot, therefore, be given to liquidate the arrears.;