HARI SHANKAR PRASAD, J. - (1.) THIS appeal, at the instance of the appellants, is directed against the judgment dated 29.6.2000 and decree dated 7.7.2000 passed in Money Suit No. 108/27 of 1987 -88, whereby and whereunder the learned Subordinate Judge III. Ranchi, decreed the suit.
(2.) THE case of the plaintiff in brief is that the plaintiff Usha Martin Udyog Ltd, registered under the Companies Act, at Tanti Silway. P.S. Tanti Silway, District. Ranchi, runs its business. Previously Usha Martin Udyog Ltd. was known as Usha Martin Black Ltd, which after conversion is known as Usha Martin Udyog Ltd. The plaintiff entered into an agreement in 1961 for taking high tension electric energy. According to the agreement, plaintiff consumed electricity and installed separate meters for factories as well as for domestic purposes and plaintiff sent separate monthly consumption report to the defendants and defendants in turn sent bill on the basis of electrical consumption. As soon as defendants sent bills, plaintiff went on paying the bill and before sending the bills the defendants have never any complaint against the plaintiff whatever bill was sent on the basis of monthly electrical consumption report, plaintiff went on paying the same within the stipulated date. Further case of the plaintiff is that on 21 January, 1966 defendants directed the plaintiff to send separate electrical consumption report consumed in the factories on month basis but no objection was raised in that very letter that some changes have been made for preparation of bill. The facts is that every month from time to time defendants inspected the meters installed in the factories of the plaintiff and on that very basis payments have been made. Defen dants on 18th April, 1983 directed the plaintiff to get the electricity consumed for domestic purposes verified by Assistant Electrical Engineer and send electrical consumption report consumed for domestic purposes duly verified by Assistant Electrical Engineer and if the report is not verified by the Assistant Electrical Engineer then 10% of the total consumption will be charged as additional duty charge and according to the direction plaintiff sent duly verified domestic consumption report to the defendants and on that very basis defendants sent bill to the plaintiff and payments were made without any objection. But all of a sudden defendants, by their letter No. 200 dated 15th February, 1986 directed the plaintiff to pay the additional bill for a sum of Rs. 5,88,471.75 paise. This additional bill is related to the period from April, 1979 to March, 1983 and April, 1983 to August, 1983. According to the aforesaid letter, it was also directed that from 1st April, 1979, for all high tension consumers, circuit and meter will be installed. It was. further informed through this letter that the meter, which has been installed for home consumption of the plaintiff, is neither tested by the competent authority of the Electricity Department nor the meter reading was taken by the particular authorized meter reader and that he total dutiable units already charged were less than dutiable units, which were levyable in terms of clause 16 3(b) of the relevant tariff. According to the plaintiff, at the time of taking high tension electric energy at the factory, separate meter and circuit were installed for factory and domestic electrical consumption and statements of meter reading were made and the same was verified from time to time by the defendants and on that basis bills were sent by the defendants and the same was paid by the plaintiff. The further case of the plaintiff is that it had earlier filed CWJC No. 395/86 (R) and the Hon ble High Court had stayed the demand and at the instance of the defendants the plaintiff filed objection before the Revenue Officer but the Revenue Officer did not properly consider the matter and by his order dated 30.10.86 has held that the supplementary bill dated 15.2.86 has rightly been charged. The writ application was dismissed on the ground that the matter requires investigation into the disputed question of fact and thereafter a sum of Rs. 5,88,471.75 paise was paid by the plaintiff to the defendants on 2nd September, 1986 by way of pay order No. 774934 dated 1.9.96, but such payment was made under protest. Thereafter, plaintiff filed Special Leave Petition before the Supreme Court against the said judgment of the Patna High Court, which was however, withdrawn with liberty to file a suit before the appropriate Court. It is stated that the additional demand of charges in electricity energy raised by the defendants is illegal and wrongful. It is further stated that clause 6.3(b) of the tariff has got no application where supply was commenced from 1961 and as such, purported supplementary bill dated 15.2.1986 and purported order dated 30.7.1986 are illegal and wrongful. It was further stated that defendants have already raised bill on the basis of statement prepared by the plaintiff in accordance with the direction and stipulations of the defendants on the basis of meter reading and defendants had accepted payments on the basis of said bill without any objection and, therefore, defendants are stopped from disputing the correctness of the said bill and from raising a supplementary bill in respect of the previous bill in question and it is not open to the defendants to reopen the correctness of levy of energy charges in respect of past period on the basis of audit report. The plaintiffs is also entitled to charge interest on the sum of Rs. 5,88,000/ - and odd and the plaintiff filed a suit for claim as stated in the plaint. The defendants appeared and filed written statement taking ornamental defences such as suit is barred by law of limitation and law of estoppel and suit is bad for joinder and non -joinder of necessary party and State of Bihar is a necessary party in the suit. It is submitted that state ment made in para 1 of the plaint is wrong and plaintiff is to prove the same.
(3.) IT is stated that plaintiff had applied for power from the defendants for industrial purposes at 250 KVA and on due observance of legal formalities connection No. R/2095 was provided with a meter by the defendants and agreement was also executed. The claim of the plaintiff that separate meters were installed for recording quantum of electrical energy consumed for industrial as well as domestic purposes and that separate circuits were also made for the said purposes is false and misleading. The agreement was for single point of supply and defendants had supplied to the plaintiff one meter for industrial purposes on one point and no other meter was provided to the plaintiff by the defendants for any other purposes and only one meter has been provided to the plaintiff on due observance of Rule 57 of the Indian Electricity Rules, 1956 to record the total consumption of energy. The plaintiff may have made separate arrangement for recording industrial consumption as well as domestic consumption but there was no such agreement with the defendants. It is further stated that defendants are under duty and obligation to supply power to a requisitionist only on due observance of formalities required under the rules and general conditions of supply and not otherwise. The statement made in para 3 of the plaint is also not wholly correct and in this connection it is stated that plaintiff was required to pay electricity duty previously @ 6 paise per unit on its consumption prior to the amendment of Bihar Electric Duty (Amendment) Act, 1963, whereby and whereunder electricity duty @ 6 paise per unit of energy was leviable on actual electrical energy consumed by the industrial and agricultural consumption and @ 7 paise per unit for other consumption, which position will be clear from letter No. ED -2 -1965 -307 -Patna dated 11.8.1986 of Government of Bihar, ' Finance (Commercial Taxes) Department. Hence the need for separate metering arrangement, if any, was required to be made from August, 1965 and prior to August, 1965 the electricity duty charge on all the consumption were not exempted by the Government under Section 9 of the Electricity Duty Act, 1948. When the provision of separate meter was not made but the plaintiff submitted separate readings of its domestic and commercial consumption and the same have been taken by the defendants in good faith believing that the plaintiff had been provided separate meters by the defendants as required under Section 26 of the Indian Electricity Act, 1910 but the fact is that meters installed by the plaintiff were not provided by the defendants as per the law nor they were tested by the defendants before installation on due observance and necessary formalities. The defendants under mistaken belief believed that the meter has been supplied by the defendants, accepted the statement of readings taken by the plaintiff and accepted the payment in good faith and it was a bonafide mistake. The defendants admit that the officials of the defendants had visited the premises of the plaintiff for verification of the meter reading recorded by the plaintiff but allegation for inspection of other meters which were installed by the plaintiff, is not admitted and is false. The defendants have made agreement with the plaintiff only for the single point supply. With regard to para 6 of the plaint, it is submitted that plaintiff did not comply the demand as stated and the onus is upon him to prove the same. The letter dated 18.4.1983 of the defendants itself suggests that the plaintiff himself was submitting the readings without its verification by any of the authorities of the Electricity Board and, therefore, so far as the plaintiff was concerned, as per Tariff Notification, 1979, No. Com/CAR -1007/79 -89, clause 16 6(b), State Electricity Duty, 10% of the total energy consumption would be chargeable as electricity duty on him and as per law and the agreement, both the parties are bound by the tariff. The defendants admit that supplementary bill was submitted but the same was submitted as per rules of the Board. The defendants have admitted the averments made in para 12 to 17 of the plaint and lastly it was submitted that plaintiff has got no genuine claim and the suit is fit to be dismissed.;