@JUDGMENTTAG-ORDER
1. In this revision u/s 115 of the CPC petitioner-plaintiff has questioned the legality and correctness of the order dated 13-7-1998 passed by the I Additional Civil Judge (Senior Division), Mangalore in Miscellaneous Appeal No. 23 of 1997 interfering with the order of the IV Additional Civil Judge (Junior Division), Mangalore dated 10-4-1997 on Interlocutory Application No. II, in the suit, an application under Order 39, Rules 1 and 2 of the CPC.
2. Plaintiff is a company called Mangalore Chemicals and Fertilizers Limited, incorporated under the Companies Act, 1956 and engaged in the manufacture of fertilizers having its factory at Panambur, Mangalore. Defendant is the Karnataka Electricity Board engaged in regulating supply of power in the State of Karnataka. Plaintiff is a permanent customer of the defendant which consumes sufficient quantity of electrical energy during each month for the purpose of running the factory.
3. Undisputed facts are:
That the plaintiff approached the defendant in the beginning of 1984 for sanction of additional high cost electrical energy as the usual supply was inadequate for running the factory. Accordingly, defendant allocated 33,72,600 units of high cost electrical energy a month for the months of January, February and March 1984 and conveyed its approval by letter dated 2-1-1984 (Annexure-C). It would appear that plaintiff could not utilise the energy due to inadequate quota of demand and as such marginally exceeded the same during January 1984 but did not utilise from 6-2-1984 and the factory was shut down. There were correspondences between the plaintiff and the defendant in regard to the payment of high cost electrical energy sanctioned/utilized and by notice dated 8-1-1997 (Annexure-V) Assistant Executive Engineer (Electrical), No. 2, Sub-Division, KEB, Kavoor, Mangalore demanded the plaintiff to pay a sum of Rs. 33,14,583-00 being the charges and interest thereon at Rs. 60,36,123-00, in all Rs. 93,50,706-00.
The other claim is in respect of temporary power supply for three months commencing from the month of August 1996. The defendant claimed the charges under letter dated 30-12-1996 (Annexure-T) for availing temporary power supply and the demand was Rs. 1,38,73,041-00. It would appear that this claim was made on the ground that the plaintiff utilised temporary power commencing from 13-8-1996 without there being any written agreement and without depositing the advance consumption charges, the agreement being executed on 9-9-1996 (Annexure-Q is the agreement).
4. Plaintiff did not pay the amount demanded under both the letters dated 30-12-1996 and 8-1-1997 within the date stipulated therein (Annexure-T is the letter dated 30-12-1996 and Annexure-V is the letter dated 8-1-1997). Therefore, on 29-1-1997 Assistant Executive Engineer (Electrical), No. 2, Sub-Division, Karnataka Electricity Board, Kavoor, Mangalore sent a letter threatening disconnection on 30-1-1997 by 10-30 a.m. (Annexure-W). Plaintiff therefore filed Original Suit No. 89 of 1997 in the Court of IV Additional Civil Judge (Junior Division), Mangalore for a declaration that the demands under letters dated 30-12-1996 and 8-1-1997 are illegal and ultra vires and also for consequential relief of permanent injunction restraining the defendants not to enforce the said claims by disconnecting the power supply or otherwise. Along with the suit presented Interlocutory Application No. II, an application under Order 39, Rules 1 and 2 of the CPC and sought for temporary injunction pending disposal of the suit. Learned Additional Civil Judge (Jr. Dn.), Mangalore after hearing and considering the respective contentions elaborately, by order dated 10-4-1997 allowed the application, granted temporary injunction restraining the defendants from enforcing the claims till the disposal of the suit subject of course the plaintiff depositing a sum of Rs. 25,00,000-00 within one month, plaintiff has deposited the amount on 6-1-1997.
5. Aggrieved by the said order, defendant approached in appeal the I Additional Civil Judge (Senior Division), Mangalore in M.A. 23 of 1997. Learned Civil Judge (Senior Division), by order dated 13-7-1998 allowed the appeal, rejected the cross-objections of the plaintiff filed questioning the direction to deposit Rs. 25,00,000-00 and set aside the grant of temporary injunction on the ground that the plaintiff has not exhausted the remedy of preferring an appeal as provided under Regulation 46 of the Karnataka Electricity Board Electricity Supply Regulations, 1988 (hereinafter referred to as ''Regulations, 1988'') and for filing the suit without depositing the entire claim under protest as required under the Karnataka Electricity Board (Recovery of Dues) Act, 1976 (hereinafter referred to as ''the Act 1976'').
6. Heard the learned Counsel for both the parties. Perused the papers.
7. The principal contention of Sri Shivasubramaniam, learned Counsel for the plaintiff is that appeal provided under Regulation 46 is only under certain circumstances and not in all matters of disputes between the K.E.B. and the consumer. In the instant case, dispute between the plaintiff and the defendant is totally different and did not fall within any one of the three categories enumerated in Regulation 46 and therefore the Appellate Court was not right in saying that the suit without exhausting the remedy of appeal under Regulation 46 is not maintainable. Trial Court after considering the rival contentions elaborately, concluded that there exists prima facie case and balance of convenience lie more in favour of the plaintiff. In the circumstances Appellate Court erred in interfering with the discretion exercised by the Trial Court. Impugned order, according to him is not sustainable in law and therefore prays for setting aside it and to restore the order of the Civil Judge (Junior Division) on LA. II.
8. Sri N.K. Gupta, learned Counsel for the respondents/defendants per contra vehemently argued that in view of Regulation 46 suit is not maintainable. The claims made by the Board constitutes ''Supplemental claim'' and therefore whatever dispute the consumer had should have approached the authority by way of an appeal under Regulation 46. The suit in such circumstances is not maintainable. In support of his arguments he invited my attention to the decision of the learned Single Judge in B. Narayana Swamy v The Assistant Executive Engineer (Electrical), K.E.B. and two other unreported cases of this Court. He also submitted that when a statute prescribes a particular mode, a party even if he is aggrieved by the decision of the Board cannot question it in a suit but he has to proceed according to the remedy provided under the statute. He further argued that in the instant case, it is clear that by necessary implication the suit is barred and therefore there are no substantial grounds to interfere with the order impugned.
9. In view of the rival contentions, the point that would arise for determination is.-
Whether the Appellate Court was not right in holding that the plaintiff ought to have approached the authority in an appeal in view of Regulation 46 of Regulations 1988 and the provisions of the Act 1976 and therefore the order impugned is not sustainable in law?
10. It is clear from the correspondences between the plaintiff and the defendant K.E.B. that there is no dispute in regard to the availment of high cost energy during the month of January and upto 6-2-1994. Undisputably, plaintiff has not availed the high cost electrical energy from 6-2-1994. The principal ground on which the claim is made, as I could see from some of the letters is that plaintiff did not surrender the sanction of high cost electrical energy on 5-2-1984 and therefore he is liable to pay for the quota allotted for the month of February together with interest thereon. Learned Trial Judge considering the pleadings on the question has said that it is a serious matter which can only be gone into at the trial.
The second claim relates to the utilisation of temporary power during the months of August, September and October 1996, there does not appear to be any dispute in regard to the payment in respect of the power consumed, but the claim is made on the ground that plaintiff could not have drawn the power from 13-8-1996 without there being a written agreement and without depositing the advance consumption charges. The agreement has been executed on 9-9-1996 and the format for executing the agreement is supplied on 7-9-1996. The learned Trial Judge after considering the pleadings on the question elaborately has also said that this is a serious matter which can be gone into at the trial. Certain letters between the parties more particularly the letter dated 12-9-1996 (Annexure-R) by the plaintiff to the Additional Secretary, K.E.B. discloses that the payments are made in respect of the utilisation of temporary power supply during August and September 1996. This letter also reflects that on 11-9-1996 plaintiff has paid Rs. 50.50 lakhs being the advance payment for consumption for the period from 11-9-1996 to 20-9-1996 on the basis of the full monthly quota of 31 lakh units.
11. Learned Counsel for the plaintiff contends that this claim does not come under the category of ''supplemental claims''. Per contra, learned Counsel for the defendant contends that the claim made constitutes a supplemental claim.
12. Before trying to understand and appreciate the controversy, let me refer to the relevant regulation viz., 46.01 in Regulations 1988 reads thus:
"Any consumer aggrieved by claims made by the Board on grounds of prejudicial use of power or on account of faulty metering equipment or due to any supplemental claims, may file an appeal to the prescribed Appellate Authority within one month from the date of bill of claims, under intimation to the office of issue, by making payment as indicated below:
(a)Dishonest abstraction/ consumption/use: 50% of the claims or more. (b)Other cases 25% of the claims or more",
A plain reading of the Regulation 46.01 makes it clear that the consumer is required to go in appeal before the prescribed authority within a particular period, if the claims by the Board are on the ground of (1) prejudicial use of power, or (2) on account of faulty metering equipment, or (3) due to any supplemental claims. Having regard to the nature of dispute and the controversy, one can conveniently say that the claims do not fall under any one of the two categories ''prejudicial use of power'' or on account of ''faulty metering equipment''. The claims are in respect of additional sanction of power supply. Therefore the question would be whether those claims come under the category of ''supplemental claims''. In order to say that it is a supplemental claim, there should be something suggesting that there was a original claim and subsequently additional claim was made by the Board. Here in the instant case, it is not shown that there was original claim and by way of additional claim the demand was made either under the letter dated 30-12-1996 or under the letter dated 8-1-1997. The charges for supply of high cost energy and for temporary supply of power had been agreed. The payments have been made accordingly.
13. In regard to the first claim the contention of the Board is that the surrender should have been intimated on 5-2-1984 and that having not been done, the consumer is required to pay for the whole of February 1984. In regard to the second claim it is stated that the consumer having consumed power before executing the agreement and without depositing the advance consumption charges, he is liable to pay certain amount by way of penalty. First claim relates to the year 1984 and second claim relates to the year 1996. There are correspondences between the parties. The agreement contains the definition of certain expressions and according to definition (e) "Date of commencement of supply" mean the date of actual availing of supply by the consumer. As against the column "Period of Agreement", it is stated that the power supply shall be for a period of two months from 13-8-1996 and shall be deemed to be extended for such period for which temporary power sanction is extended by the supplier at the request of the consumer. I do not wish to dwell elaborately on the point, lest it may prejudice the case of either party at the trial. I have only stated certain facts which are necessary for just disposal of this revision petition. The nature of claims and the controversy are such that it would be difficult at this stage to say that the claims made by the defendant-Board constitute supplemental claims and therefore by implication the suit by the consumer is barred.
14. It is a settled position that if a statute were to bar the jurisdiction of Civil Court in respect of a particular claim either expressly or by necessary implication, the Civil Court cannot entertain a suit. The question therefore is whether the Regulation 1988 or the Act 1976 bars the suit either expressly or by necessary implication. It is necessary to refer to Section 5 of the Act, 1976 which reads thus:
"Suit to challenge liability to payment.--Where a notice of demand has been served on, the debtor or his authorised agent u/s 4, he may, if he denies his liability to pay the dues, penalty or costs or any part of any of them, institute a suit within six months from the date of service of notice of demand, after depositing with the prescribed authority the aggregate amount specified in the notice of demand under protest in writing that he is not liable to pay the same. Subject to the result of such suit, the notice of demand shall be conclusive proof of the various dues, penalty and costs mentioned therein".
A plain reading of Section 5 makes it clear that a debtor (who is presumably a consumer) could institute a suit within a particular time on receipt of notice of demand if he were to deny his liability to pay the dues, penalty or costs or any part of any of them, of course subject to depositing with the prescribed authority the aggregate amount specified in the notice of demand under protest in writing. Let me not go into the question for a moment whether there is deposit or not, but it is clear that Section 5 does not bar a suit against the Board by a consumer. The expression "Debtor" is defined and according to Section 2(3) of the Act, 1976 "Debtor" means a person by whom any dues are payable. No other Section in the Act bars the jurisdiction of the Civil Court. Undisputabty, plaintiff has not deposited any amount with the Board before instituting the suit. May be for this reason, Trial Court has directed the plaintiff to deposit a sum of Rs. 25,00,000-00 and accordingly plaintiff had deposited on 6-5-1997 the said sum of Rs. 25,00,000-00.
15. Sri Shivasubramaniam, learned Counsel for the plaintiff inviting my attention to Regulation 46.09 contended that in the facts and circumstances of the case, plaintiff could not have approached either the first Appellate Authority or the second appellate authority as that would not have yielded any better results, assuming but not conceding that in the circumstances only remedy was by way of an appeal. In support of his arguments, he read to me several letters (produced them as Annexures in the case) between the parties to the proceedings. On reading those letters carefully I find considerable force in the submission. The claim exceeds 5 lakhs and therefore the first Appellate Authority is the Chief Engineer, K.E.B. and the second Appellate Authority is the Board in the case of appeals under Regulation 46. We may usefully refer to one of the letters by the Member (Finance) of the Board dated 29-9-1995 (Annexure-H) to the Deputy Managing Director (Works), M.C.F. In the letter, while answering the reference regarding payment of arrears. Member (Finance) has said that the action taken by the Unit Office, Mangalore is in order and withdrawing the case pertaining to February 1984 issue amounting to Rs. 20.48 lakhs with interest is not acceptable to the Board.
16. Sri Gupta, learned Counsel for the defendant-Board relied on the decision of the Hon''ble Supreme Court in
"8.....
Section 9 of the CPC provides that Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication is barred. Such suit would not be maintainable. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implications, the . cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the instructions issued by the Board in that behalf from time to time as stated above".
(emphasis supplied)
I have said that in the instant case since the claim or the demand made cannot at this stage be construed as supplemental claims, consumer could not have gone in appeal. Secondly, provision in the relevant Act viz., Act 1976 does not expressly bar the jurisdiction of the Civil Court except saying that in a case where the suit has to be filed certain requirements have to be complied with.
17. Sri Gupta, then relied on the decision of this Court in CRP No. 3355 of 1994 disposed of on 4-6-1998 and another decision in CRP No. 1921 of 1998 disposed of on 9-9-1998. In the first case, claim was regarding back-billing and in the second case facts are not stated. In both these two revisions, decision of the Apex Court in Punjab Electricity Board''s case, supra, is referred. In the first case, it is only stated that the Board may raise the question of maintainability of the suit in the Trial Court and did not interfere with the order of the Trial Court in view of the direction to the consumer to pay or deposit 50% of the amount in six weeks. Therefore, these two decisions in my considered view do not lend any support to the arguments that the suit being not maintainable the Trial Court could not have granted temporary injunction.
18. It is settled position that the Appellate Court can only interfere with the discretion exercised by the Trial Court in the matter of granting injunction if the order is either perverse or arbitrary. Here is a case where on facts the Appellate Judge does not make any comment. The Appellate Court is of the view that the dispute relates to supplemental claims and as such the suit is not maintainable in view of Regulation 46. Further holds that the suit is not maintainable for the reason that the plaintiff has not deposited the amount before filing the suit. Trial Court perhaps taking this into consideration the failure to deposit has directed the plaintiff to pay 25 lakhs and that has been paid subsequent to the order viz., on 6-5-1997. In the appeal preferred by the defendant plaintiff filed cross-objections questioning the Trial Court''s direction to deposit the amount and that has been rejected. This portion of the order is not challenged by the plaintiff. I have said that the demand in respect of both the claims cannot at this stage be construed as supplemental claim and therefore the plaintiff could not have gone in appeal as provided under Regulation 46. Therefore, the order in appeal is not sustainable.
19. Lastly Sri Gupta, learned Counsel for the respondent-defendant submitted that in the event of the order in appeal being set aside, having regard to the claims there shall be a direction to the plaintiff to deposit certain other amount in addition to the deposit of Rs. 25,00,000-00. There is substance in this submission. It is for the Trial Court to determine and decide whether the claims are true, just and appropriate. I have only said that at this stage it is difficult to say that both or any one of the two claims constitute "Supplemental Claims" in the strict sense.
The charges claimed in the letter dated 8-1-1997 concerning consumption of high cost energy is Rs. 33,14,583-00 and interest of Rs. 60,36,123-00. In all Rs, 93,50,706-00. The direction of the Trial Court to the plaintiff is to deposit Rs. 25,00,000-00. It is therefore necessary that plaintiff has to be directed to deposit another sum of Rs. 10,00,000-00 within 8 weeks making a total of Rs. 35,00,000-00. Appropriation or adjustment or repayment of the whole of this amount shall be subject to the decision in the suit.
ORDER
20. In the result and for the reasons hereinabove stated, this revision is allowed. Order impugned dated 13-7-1998 in M.A. 23 of 1997 is hereby set aside. Order of the Trial Court on I.A. II, dated 10-4-1997 in O.S. No. 89 of 1997 is restored subject of course to the petitioner/plaintiff depositing/paying the Board-defendant another sum of Rs. 10,00,000-00 (Ten Lakhs) within 8 weeks. Appropriation or adjustment or repayment of the whole of Rs. 35,00,000-00 is subject to the decision in the suit.
It is further made clear that the defendant is at liberty to urge all those points including the question of maintainability of the suit as is necessary and permissible in law and in which event the Trial Court shall frame appropriate issues and proceed to dispose of the matter in accordance with law uninfluenced by any observations made during the course of the order. Both the parties shall co-operate with the Court in disposing of the suit as expeditiously as possible and at any rate on or before 31-12-2000.
21. The Registry shall send a copy of this order to the Trial Court within 15 days for compliance.
