- (1.) By the impugned order, the learned Single Judge has directed the respondents/writ petitioners to execute a bank guarantee by 9th of June, 2009 to the tune of Rs.11,00,000/- to be renewed from time to time till disposal of the writ petition. In default, CESC Ltd. will be within its right to take appropriate steps including disconnecting the electric line. This order has been challenged by the CESC Ltd. on the ground that the entire amount ought to be secured by directing the writ petitioners to deposit 50% of the amount due in cash and not through a bank guarantee. Mr. Anindya Mitra, learned Senior Counsel appearing with Mr. Utpal Bose, learned Counsel submits that the issue with regard to the kind of security that is required in cases such as this has been settled by the Supreme Court in the case of W. B. State Electricity Board v. Fakir Chand Rice Mills & Ors., reported in 1996 (8) SCC 647. In that case the Supreme Court has clearly observed that when the Electric Supply Company is obligated to supply electrical energy to the consumer, an equal obligation has to be cast on the consumer to pay the amount subject to determination of controversy in the, suit.
(2.) On the other hand, Mr. S.N. Mitra, learned Counsel appearing for the respondents/writ petitioners submits that furnishing of bank guarantee as directed by the learned Single Judge would be sufficient security for the claim made by the appellant / CESC Ltd. Learned Counsel also submitted that the rights of the parties have not been adjudicated at this stage. At the time of the final hearing of the writ petition, the writ petitioners would be able to demonstrate that the demand made by the appellant is palpably erroneous. In fact, it relates to periods other than the period which was the subject-matter of the appeal before the appellate authority. The controversy only related to December 2001. The appellate authority had, however, determined the liability for the period commencing from 25th October, 2001 to 29th April, 2002. It was upon taking into consideration these facts and circumstances that the learned Single Judge had directed that it would be sufficient if security was furnished by way of bank guarantee only. Learned Counsel further submitted that it would be wholly inequitable if the writ petitioners are directed to furnish security for an amount which would not be due in accordance with law. Merely, because the appellant has raised a demand notice, which is without the sanction of law, the same would not entitle them to claim security, let alone insist on cash deposit. Learned Counsel further submitted that the judgment in the case of W.B. State Electricity Board (supra) is not applicable in the facts and circumstances of this case. In the present case, the rights of the parties have not been adjudicated by any judicial authority thus far. In the case before the Supreme Court, the matter had been adjudicated by the trial Court, Appeal Court and the High Court, in revision.
(3.) We have considered the submissions made by the learned Counsel. We are of the opinion that the judgment of the Supreme Court in the case of W. B. State Electricity Board (supra) would be applicable in the facts and circumstances of this case. Since it is only a short judgment we are reproducing the same in its entirety. "(Before K. Ramaswamy, S. Saghir Ahmed and G. B. Pattanaik, J J.) West Bengal State Electricity Board ....Appellant v. Fakir Chand Rice Mills & Ors.....Respondents Civil Appeal No. 4720 of 1996, decided on February 27, 1996 Order 1. Mr. A. D. Sikri, the learned Counsel accepts notice on behalf of the respondents. We have heard the counsel for the parties. 2. Leave granted. 3.As rightly pointed out by the counsel for the respondents, jt is a discretionary order. The discretion would also be properly exercised by the Courts below when dealing with the points in controversy. A demand of Rs.28,68,264.06 was made on the allegation that there were pilferages in the meter reading of the electrical energy supplied to the respondents. In a suit by the respondents for supply of energy to the respondents, the trial Court directed payment of Rs.2,60,000/- and odd. On appeal, it was confirmed. When it was carried in revision, the High Court in CO. No. 2714 of 1995 modified the order and directed the respondents to deposit a sum of -Rs.5,60,000. Thus, this appeal by special leave. 4. A demand notice for Rs.28 lakhs and odd having been issued, the question is: whether the Court was right in directing ultimately payment of Rs.5,60,000? The High Court does not appear to have addressed itself to the questions. It simply repeated that it was a discretionary order passed by the Courts below directing payment of Rs.2,60 lakhs and at the same time directed the respondents to deposit Rs.5,60,000/- without adjudicating the matter. Normally, in matters of money claim, at least half of the amount would be directed to be deposited. In the situation obtaining in this case, when the appellant is obligated to supply electrical energy to the respondents, an equal obligation has to be cast on the respondents to pay the amount subject to determination of controversy in the suit. Under these circumstances, the respondents are directed to deposit a sum of Rs.12 lakhs within a period of two months from today. If the amount of Rs.5,60,000/- has already been deposited, the same may be given credit for the payment and the balance be paid within the aforesaid period. 5. The appeal is accordingly disposed of. No costs.";