IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 179 of 2005. Judgement reserved on: 17.6.2009 Date of decision: July 3, 2009. Himachal Pradesh State Electricity Board ….. Appellant. Versus M/s Everest Tube Ltd. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Baldev Singh, Advocate. For the Respondents : Mr. O.C.Sharma, Advocate vice Mr. M.S.Thakur, Advocate, for respondent Nos. 1 to 5 and 9 to 14. Mr. Dushyant Dadwal, Advocate, for respondents No. 6, 7 and 8. Kuldip Singh, Judge. The appellant has assailed judgement decree dated 5.3.2005 passed by learned District Judge, Solan in Civil Suit No. 2- S/1 of 2004 dismissing the suit of the appellant for recovery of Rs.9,42,238/-. 2. Briefly stated the facts of the case are that respondent No. 1 had deposited a sum of Rs.2,27,500/- with the appellant- Board on account of advance consumption deposit (ACD) when connection was sanctioned. Late Chiranji Lal Garg was the Managing partner of respondent No. 9 and through him respondent No. 9 stood surety for Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… the payment of electricity bills by respondent No. 1 and executed a bond in the sum ofRs.3,40,000/-. Chiranji Lal is now dead and respondents No. 2, 4, 10, 11, 12 and 14 are legal representatives of Chiranji Lal. The respondents No. 2 and 4 are the Managing Director and Director of respondent No.1. The respondents No. 10, 11, 12 and 14 are the partners of respondent No. 9. The respondent No. 6, a company acting through respondent No. 8 also stood surety for the payment of electricity bills by respondent No. 1 by executing a bond in the sum of Rs.3,40,000/-. The respondent No. 7 is the Managing Director of respondent No. 6. The respondent No. 1 had been paying the bills regularly up to December 2000 whereafter it started making default. The amounts claimed through the bills were not deposited in full. 3. The payments made by respondent No. 1 were adjusted against the bills and also in the account maintained in the ledger book and the balance was shown in the subsequent bills as also in the ledger account. In December 2001 a sum of Rs.14,42,388/- was due to the appellant from respondent No. 1. After adjustment of advance consumption deposit of Rs.2,27,500/- made by respondent No. 1 and another such deposit amounting to Rs.2,72,650/- by respondent No. 6, a sum of Rs.9,42,238/- was due to the appellant. The suit was filed in December 2003. 4. The respondents No. 1 to 5 had filed a common written statement and took the objections of limitation, lack of cause of action, better particulars, estoppel, suit is liable to be stayed under Section 10 CPC. The appellant has not approached the court with …3… clean hands, the suit has not been filed through the competent person, the suit is bad on account of non compliance of Order 7 Rule 14 CPC. On merits, the claim of the appellant was denied. It was pleaded that advance consumption deposit made by respondent No. 6 was wrongly adjusted. It has been alleged that most of the amounts claimed by the appellant are the subject matter of the suit filed by respondents and the references filed by respondents before the Disputes Settlement Committees of appellant. 5. It was further pleaded that appellant as per bill has claimed a sum of Rs.3,97,440/- on account of Peak Load Hours Violation Charges and Rs.5,25,978/- on account of change in the classification of connections from LS-II to LS-I on account of revision of tariffs. The respondents have disputed these claims of the appellants. The peak load hours charges have been worked out by treating the entire consumption to have been made during the peak load hours whereas as per by-laws such charges can be claimed only in respect of consumption made during the peak hours. A notice was received from appellant in June 2001 demanding the difference between the amount already charged at the tariff applicable to LS-II and the amount alleged due on account of reclassification of the connection as LS-I, the said notice was replied and it was submitted that even as per revised tariff connection fell in the category of LS-II. The appellant in the subsequent bills raised the demand for energy consumption at the tariff applicable to LS-II connection, which established that respondents stand was accepted. …4… 6. The respondents No. 6, 7, 8 have pleaded that they have filed a suit in the court of Additional District Judge for refund of amount of Rs.2,72,650/-, which they had deposited on account of advance consumption deposit and was wrongly adjusted by the appellant towards the alleged claim of respondent No.1, the said suit is pending and the present suit is liable to be stayed under Section 10 CPC. On merits, it was pleaded that surety furnished by respondent No. 8 on behalf of respondent No. 6 ceased to operate when appellant did not disconnect the supply, after first default was made in the payment of energy charges by respondent No.1. 7. The respondents No. 9 to 12 in their written statement have taken almost the same pleas which were taken by respondents No. 1 to 5. They have denied that Chiranji Lal had executed a surety bond. Chiranji Lal was not authorized by respondent No. 9 to execute any bond or to stand surety on behalf of respondent No. 9. The surety bond executed by Chiranji Lal does not bind respondent No. 9 and its surviving partners. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether a sum of Rs.9,45,238/- is due to the plaintiff from the defendants on account of the electricity charges for the electricity consumed by defendant No. 1 in its premises? OPP. 2. If issue No. 1 is proved whether the plaintiff is entitled to recover the aforesaid amount with interest, if so at what rate of interest? OPP. 3. Whether claim is barred by limitation as alleged? OPD 1 to 5 and 9 to 14. 4. Whether the plaintiff has no cause of action? OPD 1 to 5 and 9 to 14. …5… 5. Whether the suit is not maintainable as alleged? OPD 1 to 5 and 9 to 14. 6. Whether the plaintiff is estopped to sue by the acts, deed and conduct of its officers and servants as alleged? OPD. 7. Whether the suit is liable to be stayed under Section 10 CPC? OPD. 8. Whether the suit has 9not been filed by a person competent to sue on behalf of the plaintiff? OPD 1 to 5 and 9 to 14. 9. Whether billing for the supply of the electricity to the defendants has been at the rates higher than those applicable, as per prescribed tariff, if so to what effect? OPD 1 to 5 and 9 to 14. 10. Whether the defendants No. 6 to 8 are not likable as guarantors for electricity charges, in respect of the electricity supplied after the first alleged default? OPD 6 to 8. 11. Relief. The issue No. 1 was decided by holding that appellant is entitled to only to a sum of Rs.18,820/-, issue No. 2 was also decided with the finding that appellant is entitled to Rs.18820/- alongwith 9% interest from the date of the suit till payment but in view of finding on issue No. 3 the claim was dismissed being barred by time, issue No. 3 was answered in affirmative, issues No. 4 and 5 were partly answered in affirmative, issues No. 6, 7, 8 and 9 were answered in negative, issue No. 10 was not decided in view of the fact that the matter is subjudice. The suit was ultimately dismissed. 9. Heard and perused the record. The learned counsel for the appellant has submitted that trial court has not properly appreciated the material on record, Ex. PB/1 has not been properly interpreted, the appellant is entitled to Rs.3,97,440/- on account of peak load violation charges, Rs.5,25,978/- on account of difference …6… between the tariff due to change in classification of connection from LS-II to LS-I, the ledger was maintained by the appellant in regular course of business and therefore, the amount of Rs.3,97,440/- shown in Ex. PB/1 on account of peak load violation charges has been fully proved so also amount of Rs.5,25,978/- on account of difference between the tariff due to the change in classification of connection from LS-II to LS-I. The notice Ex. PC/7 and letter Ex. DD dated 26.6.2002 were not appreciated properly. The entry in the remarks column of Ex. PB/1 that court has stayed the recovery of peak load violation charges has been misinterpreted. It has been wrongly held that the claim of the appellant is barred by limitation. The learned counsel for the appellant has submitted that appellant is entitled to full amount as claimed in the suit alongwith interest. The learned counsels for respondents No. 1 to 5, 9 to 14 and respondent Nos. 6, 7 and 8 have supported the impugned judgement, decree and prayed for dismissal of the appeal. They have submitted that there is no legal evidence on record in support of the claim of appellant. 10. PW 1 J.S. Chandel on the basis of affidavit Ex. PA and order dated 15.10.1988 Ex. PA/1 has stated that he has been empowered and authorized by the Board to sign, verify and file the suit. PW 2 Jai Kishan, Senior Assistant, Electrical Sub Division, H.P. State Electricity Board, Barotiwala has placed on record his affidavit Ex. PB and has stated that he had brought the record i.e. the accounts register of the Board. He has placed on record the statement of account Ex. PB/1 prepared by him on the basis of …7… entries in the account of M/s Everest Tubes Barotiwala account No. LP-43. PW 2 has stated that Ex. PB/1 has been prepared on the basis of ledger maintained in Electrical Sub Division, Barotiwala. He has not brought the bills or their copies on the basis of which the amounts mentioned in Ex. PB/1 were demanded. He has also stated that bills used to be issued from their Solan office. An amount of Rs.2,36,266.50 and Rs.2,89,711.50 on account of sundry charges as shown vide items No. 2 and 3 of the abstract at page-2 of the statement Ex. PB/1 has been raised in view of audit objection. PW 2 has not stated that entries in the original ledger were made by him or the original ledger was maintained by him. He has, however, stated that statement Ex. PB/1 was prepared on the basis of ledger. The statement Ex. PB/1 is not the primary evidence. It is at the most based upon the entries made in the original ledger. But entries of the original ledger on the basis of which statement Ex. PB/1 was prepared, have not been proved. 11. In Chandradhar Goswami and others vs. Gauhati Bank Ltd. AIR 1967 SC 1058, the Hon’ble Supreme Court after noticing Section 34 of the Evidence Act has held as follows:- “It is clear from a bare perusal of the section that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them………” …8… In Escorts Limited vs. Sai Autos & others 1991 Civil Court Cases 363 (Delhi), Chandradhar Goswami and others vs. Gauhati Bank Ltd. AIR 1967 SC 1058, was noticed and it was held as follows:- “In view of the provisions of Section 34 of the Evidence Act, entries in the books of account are not alone sufficient evidence to charge and person with liability. Nor can copies of entries in the books of account be sufficient to charge any person with liability. The manner in which entries in the books of account are to be proved to charge any person with liability has been dealt with by the Supreme Court in AIR 1967 Supreme Court 1058 (Chandradhar Goswami & others v. Gauhari Bank Ltd.), the Supreme Court has clearly stated that the entries in the books of account are not primary evidence of indebtedness. A plaintiff has to lead evidence in the shape of vouchers, bills etc. to prove the entries in the books of account.” The appellant in the present case has led no evidence in the shape of vouchers, bills etc. to prove the entries of original ledger on the basis of which statement Ex. PB/1 was prepared. Therefore, it cannot be said that amount shown due from respondents in statement Ex. PB/1 has been proved in accordance with law. 12. There is another aspect of the case. It is clear from the statement of PW 2 Jai Kishan that the appellant has based its claim against the respondents on the basis of statement of account Ex. PB/1, which was allegedly prepared on the basis of entries in the account of M/s Everest Tubes Ltd., Barotiwala. Rule 17 of Order VII CPC provides that where the document on which the plaintiff sues is an entry in a shop- book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint together with a copy of entry on which he relies. There is nothing on record to show that appellant at the time of filing of the suit …9… had produced the original ledger from which statement Ex. PB/1 was allegedly prepared. 13. PW 3 D.P. Diwedi has placed on record his affidavit Ex. PC, surety bond Ex. PC/1 and Ex. PC/2, copies of applications and agreements for electricity connection Ex. PC/3 and Ex. PC/4, copy of notice Ex. PC/5, copy of demand dated 1.8.2002 amounting to Rs.8,77,513/- Ex. PC/6 and copy of notice Ex. PC/7. PW 3 in his affidavit Ex. PC has stated that after adjusting the amounts of A.C.D’s of respondents No. 1 and 6 by way of enforcing the surety bond dated 4.8.1994, the respondents still have to pay a sum of Rs.9,42,238/- to the Board. The basis of claim of Board against the respondents amounting to Rs.9,42,238/- have not been proved. The vouchers, bills in support of claim of Rs.9,42, 238/- have not been proved. 14. PW 3 has stated that peak load violation charges are claimed as per notification dated 26.11.1999, copy Ex. DA. He had not brought any bill not even the bill in respect of demand for all the accumulated arrears up to December 2001. He has stated that in bill Ex. DB the demand raised for electricity consumption treating the connection as one of the large supply-I. He has also stated that communication dated 15.6.2000 Ex. DC was received in respect of bill Ex. DB from M/s Everest Tubes Ltd. The communication dated 26.6.2000 Ex. DD was also received. He has admitted that bill raised for July 2000 is Ex. DE. The discount was given for the difference between the charges for LS-II connection and LS-I connection in the …10… bill for the month of June 2000 and also charged tariff prescribed for LS-II for further consumption for which the charges were demanded. 15. The evidence led by the appellant does not prove that an amount of Rs.9,42,238/- was due to the appellant from respondents at the time of filing of the suit. It has come in the statement of PW 3 that after issuing bill Ex. DB, the communications Ex. DC and Ex. DD were received by the Board and thereafter in the bill for the month of July 2000 Ex. DE the Board had given discount for the difference between the charges for LS-II and LS-I connection in the bill for the month of June 2000 and also charged tariff prescribed for LS-II for further consumption for which the charges were demanded in bill Ex. DE. In other words, the Board has accepted the plea of the respondents that they are liable to pay rates for LS-II and not for LS-I. The respondents are well within their right to support the dismissal of the suit on any other ground available to them in law. There is no legal evidence in support of the claim of the appellant, therefore, the finding recorded by the lower appellate court that plaintiff is entitled to recover a sum of Rs.18820/- is also not sustainable even though the respondents have not filed any appeal or cross-objections against the impugned judgement, decree. 16. The finding of the court below that suit is not within limitation in view of sub-section (2) of Section 56 of the Electricity Act, 2003 is not sustainable in view of law laid down by Hon’ble Supreme Court in Kusumam Hotels Private Limited vs. Kerala State Electricity Board and others (2008) 13 SCC 213, where it has been held as follows:- …11… “Whereas the bills are issued only in respect of the dues arising in terms of the law as was applicable prior to the coming into force of the 2003 Act, sub-section (2) of Section 56 shall apply after the said Act came into force. The Board could have been framed a tariff in terms of the provisions appended to Section 61 of the Act. The appellants incurred liability to pay the bill. The liability to pay electricity charges is a statutory liability. The Act provides for its consequences. Unless therefore, the 2003 Act specifically introduced the bar of limitation as regards the liability of the consumer incurred prior to coming into force of the said Act; in our opinion, having regard to Section 6 of the General Clauses Act, the liability continues. (See Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO.)” 17. In the present case, as per the case of the appellant, an amount of Rs.14,42,388/- was due from the respondents in December 2001 and after adjusting advance consumption deposit of Rs.2,27,500/- made by respondent No. 1 and another such deposit amounting to Rs.2,72,650/- by respondent No. 6, a sum of Rs.9,42,238/- was due to appellant. The alleged due amount is prior to the coming into force of Electricity Act, 2003, therefore, the suit filed by the appellant is within limitation. This does not improve the case of the appellant, inasmuch as, on merits the appellant has failed to prove its case by leading legal evidence that an amount of Rs.9,42,238/- is due from the respondents. 18. No other point was urged. 19. As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. July 3, 2009 ( Kuldip Singh ), (Hem) Judge.