IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 3414 of 2010(O) ------------------------------------- [EP.NO.166/2004 OF PRL.MUNSIFF COURT, PALAKKAD] .................... PETITIONERS: --------------------- 1. PADMINI.K.G, W/O.LATE V.P.SUDAKARAN, AGED 65 YEARS, 2. ULLAS SUDHAKARAN,S/O.LATE V.P.SUDAKARAN, AGED 35 YEARS, 3. MILLI PAVITHRAN,D/O.LATE V.P.SUDAKARAN, AGED 39 YEARS, PETITIONERS ARE RESIDING AT 'PADMASUDHA', PANIKKASSERY,I.T.OFFICE ROAD,YAKKARA AMSOM, PALAKKAD TALUK AND DISTRICT. BY ADV. MR.JACOB SEBASTIAN. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,'VYDYUTHI BHAVAN', PATTOM,THIRUVANANTHAPURAM. 2. ASSISTANT EXECUTIVE ENGINEER,K.S.E.B, BIG BAZAAR SECTION, PALAKKAD DISTRICT. R1 & R2 BY MR.P.P.THAJUDEEN, SC, K.S.E.B. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3414/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN O.S. NO.663/1990 OF THE COURT OF THE MUNSIFF OF PALAKKAD. EXT.P.2: COPY OF THE E.P. NO. 166/2004 OF THE COURT OF THE MUNSIFF OF PALAKKAD. EXT.P.3: COPY OF THE CALCULATION STATEMENT FILED BY THE RESPONDENTS IN E.P. NO. 166/2004 OF THE COURT OF THE MUNSIFF OF PALAKKAD. EXT.P.4: COPY OF THE OBJECTIONS FILED BY THE PETITIONERS TO EXT.P.3. CALCULATION STATEMENT OF RESPONDENTS. EXT.P.5: COPY OF THE ORDER DTD. 26/08/2009 OF THE COURT OF THE MUNSIFF, PALAKKAD. EXT.P.6: COPY OF THE ORDER DTD. 15/09/2009 IN E.P. NO. 166/2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 3414 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2010. JUDGMENT Petitioners are the legal heirs of late V.P.Sudakaran. Late V.P.Sudakaran had instituted O.S.663 of 1990 before the Munsiff's Court, Palakkad against the respondents herein, who are the defendants. The suit was originally one for declaration that the defendants are not entitled to collect electricity charges from the plaintiff unless the excess amount collected from the plaintiff refunded, and also for a permanent prohibitory injunction restraining the defendants from collecting electricity charges from the plaintiff without refunding the excess amount collected. Along with the suit the plaintiff had moved I.A. 2050 of 1990 seeking interim relief against disconnection of power supply. That was granted by the trial court. 2. The defendants entered appearance and admitted that they had collected excess amount from the plaintiff. During the pendency of the suit, without WPC.3414/2010. 2 obtaining permission from the court, the meter was changed. Since that was a defective meter, the plaintiff filed I.A. 2573 of 1991 for a mandatory injunction to replace the defective meter. Another application was also filed for the issuance of an expert commission. The Expert Commissioner has opined that the meter was defective. Suffice it to say, a decree was passed in the following terms: “In the result, suit stands decreed as follows, and plaintiff is entitled to a decree of declaration that the defendants are not entitled to collect electricity charges from the plaintiff until the excess amount collected from him towards electricity charges are refunded to him and also a decree of declaration stating that the plaintiff is liable to pay for 30% less electrical charges from 8.8.1991 to 7.7.1999. The plaintiff is also entitled to a decree of permanent injunction restraining the defendants from disconnecting the electricity connection given to the plaintiff in consumer No.3009 of the Big Bazar Section for non-payment WPC.3414/2010. 3 of the electrical charges till the excess amount paid by the plaintiff is refunded to him.” 3. Thereafter, according to the petitioners, the Board, contrary to the terms of the decree, issued bills calling upon the petitioners to remit a sum of Rs. 33,900/- before 31.05.2004, failing which they were threatened with disconnection. Petitioners found that interest at the rate of 24% was claimed from 1992 till April, 1998 and thereafter at the rate of 36% till April, 2004. 4. Petitioners approached the execution court for reliefs in terms of the decree. The Board was directed to file its statement as to how they arrived at the amount and they filed the statement. That was taken objection to by the petitioners, who pointed out that the Board was not entitled to levy interest and their calculation is incorrect. Petitioners have made available their calculation, which is produced as Ext.P4. The court below passed Ext.P5 order asking the decree holder to deposit Rs.6,713/- accepting the statement made available by the Board. WPC.3414/2010. 4 5. According to the petitioners, the court below was not justified in accepting the amount shown by the Board as due to them. Contention is that the Board had no right to levy interest on the current charges. It is also pointed out that earlier there was an adjudication on the issue and the petitioners were directed to deposit the amount and they did so. Petitioners therefore point out that the court below may be directed to adjudicate the issue as to whether they are liable to pay interest as contended by the Board and if any amount is due to the Board. 6. The prayer seems to be just and reasonable. One has to remember that execution petition was filed by the petitioners for enforcing the decree and it is in that proceedings they were directed to deposit the amount. Apart from the fact that they claim that they are not liable to pay interest in view of the decree, to show the bonafides the petitioners had deposited the amounts. Certainly an adjudication of the issue was called for, and the court below WPC.3414/2010. 5 was not justified in closing the execution petition without doing so. The order is clearly unsustainable in law. In the result, Exts.P5 and P6 orders are set aside and the matter is remanded to the trial court for fresh decision in accordance with law as expeditiously as possible. It is given to understand that the amount deposited has been withdrawn and that will be adjusted towards the future bills, if the finding goes in favour of the petitioners. The writ petition is disposed of as above. P. BHAVADASAN, JUDGE sb.