1/5 S.B.CIVIL FIRST APPEAL NO.83/1987 R.S.E.B., Jaipur VS. M/s Ashok Sugar Mills. Date : 05.02.2008 PRESENT HON'BLE DR. JUSITCE VINEET KOTHARI None present for the appellant. Mr. M.S. Panwar for the respondents. --------- 1. None present for the appellant even in second round. 2. Heard learned counsel for the respondent ex-parte. 3. Learned counsel for the respondent states that the controversy involved in the present is squarely covered by the decision in R.S.E.B. & Anr. Vs. Sh. Ikling Cotton Ginning & Processing Factory – S.B. Civil First Appeal No.91/1980 decided on 13.09.2001. He submits that like Cotton Ginning Factory, Sugar Mills are also included in the definition of “seasonal factories” under clause (9) of the 1974 Rules. He relied on the following quoted portion of the said judgment:- “The clause (9) of the above provision of 1974 is relevant to be quoted here: “9. 'Seasonal factories' mean the facftories whichby virtue of their nature of production can work only during a part of the year continuously or 2/5 intermittently up to a maximum of eight months, such as Ice Factory, Ginning & Processing factory, Oil Mills, Sugar Mills provided no other industry including the distillary is supplied power from that connection and such other factories as may be provided by the Board from time to time subject to the conditions that:-” “8. Not only this but after treating it as seasonal factory, admittedly, bills were issued for the electricity consumption treating the plaintiff as seasonal factory. There is no dispute with respect to the payment of the bills which were issued by the defendant but the dispute is as clear from the Annexure-5 that the defendant claimed Rs.14,262/- as the old dues and there is mention that this is issued as per objection of the audit party and there is no case of the defendant that this bill was issued after any notice to the plaintiff for treating the plaintiff as non-seasonal factory for the period for which the arrears is said to be claimed against the plaintiff. In written statement the plea taken by the defendant is that the plaintiff has not served the notice as required under sub-clause (1) of the Clause (9) of the above Tariff Rules, 1974. When the plaintiff was treated as seasonal factory billed for as seasonal factory for a long period since 1972 and the disputed period is also covered in the bills, which were issued to the plaintiff saying that plaintiff is a seasonal factory then if there was non-compliance of any of the conditions then the defendant failed to plead under which circumstances the above bills 3/5 were issued treating plaintiff as seasonal factory. When bills were issued to the plaintiff treating plaintiff as seasonal factory then unless it is alleged and proved that bills were issued under some mistake or because of any fraud made by the plaintiff or defendants show that the issuance of above bill cannot be treated as admission of compliance of the conditions till then and defendant-appellants have no right to claim any amount from the plaintiff. It appears from the facts on record that merely there is an audit objection and reason for audit objection was not even brought to the notice of the plaintiff. The authorities of the appellant issued the bills and after issuing the bills tried to justify their issuance of bills by saying that notice under sub-clause (1) of clause (9) was not given by the plaintiff. Therefore, it appears that plea taken by the defendants appear to be nothing but after thought to justify their action of issuance of bills on the ground of the audit objection. Even the witness of the defendants in his cross- examination stated that bill was issued as per the audit objection. The witness of the defendants DW- 1-Shyam Sunder admitted that how much electricity was consumed. There is a record with the appellant and that was not placed before the court in evidence. Defendant's witness further admitted that the bill Ex.3 was issued treating the plaintiff as seasonal factory, therefore, when the trial court has decided the issue No.1, keeping in mind all the above facts, committed no mistake of law but in fact decided the issue No.1 in accordance with law. The defendants being failed to plead and proved for which month or 4/5 for which year notice was not given by the plaintiff as per the sub-clause (1) of the Clause (9) of the above Tariff Rules, 1974. There appears to be even no plea of the defendants that the plaintiff is not a seasonal factory and, therefore, in view of the above discussion and the reasoning given by the trial court on issue No.1, it is clearly established that plaintiff was the seasonal factory for the relevant period and there was a notice of being seasonal factory to the defendant-appellant and the disputed bill for Rs.14,262.40/- was wrongly issued. Since the defendants also failed to prove for which period notice was not given by the plaintiff to the defendant, therefore, in view of the conduct of the defendants, by issuing bills to the plaintiff treating it as seasonal factory for the period in which bills were issued are estopped from saying that the plaintiff has not pleaded any of the conditions provided under ;the Clause (9) of Rule of 1974. 9. Hence, there is no force in this appeal and the same is hereby dismissed. Sd/- (Prakash Tatia), J.” 4. I have perused the record of this case and in the present case also the demand of dues were made from the plaintiff Ashok Sugar Mills in the off season period on account of alleged minimum charge for the said period on the basis of audit objection. The suit filed by the plaintiff Ashok Sugar Mills was 5/5 decreed by the impugned judgment of the trial court dated 8.5.1987. R.S.E.B. has filed the present appeal in this Court. 5. Considering the submissions made at the Bar and the judgment of this Court in R.S.E.B. & Anr. Vs. Sh. Ikling Cotton Ginning & Processing Factory (supra), this Court is of the opinion that the learned trial court has not committed any error in deciding the various issues in favour of the plaintiff and the demand of minimum charges from the seasonal factory for off season period was not justified, hence, the direction of refund of excess amount realized from the plaintiff firm was also given. 6. The present appeal by RSEB is devoid of merit, the same is accordingly dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.53 babulal/-