IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 AS.No. 171 of 2001(D) ---------------------------------- OS.124/1994 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): PLAINTIFF ---------------------------------------- SURABI MOVIES, CHALAKUDY, REP.BY ITS MANAGING PARTNER JOSE, S/O. PANADAN IPE, PARIYARM VILLAGE, PARIYARAM DESOM, MUKUNDAPURAM TALUK. BY ADVS. SRI.MATHAI M.PAIKEDAY (SR) SRI.K.B.GANGESH SRI.JOE JOSEPH KOCHIKUNNEL RESPONDENT(S): DEFENDANTS --------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP.BY SECRETARY, VAIDYUTHI BAVAN, THIRUVANANTHAPURAM. 2. ASST. EXECUTIVE ENGINEER, KSEB, ELECTRICAL MAJOR SECTION, CHALAKUDY. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------------------------------------- A.S.No.171 OF 2001 --------------------------------------------------------- Dated this the 18th day of August, 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Irinjalakuda in O.S.No.124 of 1994. The suit is one for injunction restraining the defendants from collecting the amounts covered by notice and from disconnecting of electricity supply. It is the case of the plaintiff that he is running a Cinema theater by name 'Surabi Movies', at Chalakudy. They are getting electrical energy from the Kerala State Electricity Board and was included in 'LT-IV' category for the purpose of tariff of electricity charges. In the year 1980 the first defendant converted the establishment to 'LT-VI' category without the concurrence of the plaintiff and levied increased rates of tariff for the electrical energy supplied to the plaintiff. It was questioned before the High Court of Kerala. Thereafter the defendant Board issued an invoice on 8.12.1986 demanding a sum of Rs.2,80,085.95 paise as the excess electrical charges plus the surcharge for non-payment. The plaintiff had moved the Munsiff's Court for injunction which was dismissed. Thereafter another suit was filed and now the contention is that the plaintiff A.S.No.171 OF 2001 2 is not liable to pay the amount as ordered by the Kerala State Electricity Board. The first defendant on the other hand filed a written statement contending that it was forced to change the category of tariff and amount demanded was only in accordance with law and, therefore, the plaintiff is bound to pay the amount and, therefore, the suit has to be dismissed. The trial court on analysis of the materials had dismissed the suit. It is against that decision the plaintiff has come up in appeal. 2. Heard the learned counsel for the appellant as well as the learned counsel for the Kerala State Electricity Board. The learned counsel for the appellant would contend that the court below was not right in dismissing the suit summarily. It is desirable to refer to some facts for a proper appreciation of the matter. The Kerala State Electricity Board by virtue of a notice dated 8.12.1986 issued an invoice directing the plaintiff to pay a sum of Rs.1,88,068.88/-as arrears due and Rs.92,017/- as surcharges, totaling to Rs.2,80,085.90/-. Thereafter it had also issued Ext.A2 bill dated 11.2.1994 claiming Rs.2,80,085.90/- plus surcharge on the said amount of Rs.3,92,120.30/-, totaling to Rs.6,72,206.20/-. It is against this, the present suit is filed. The point that raised for determination and considered by court below A.S.No.171 OF 2001 3 are regarding the right of the Electricity Board to change the tariff. On that point the learned Subordinate Judge considered the question in the light of the decision of the Supreme Court and held that the Electricity Board is entitled to do the revision and change the category. So, therefore the power to change the category from 'LT-IV' to 'LT-VI' vest with the Kerala State Electricity Board as approved by the Supreme Court and, therefore, there cannot be any challenge with respect to that assessment. 3. The second question considered was regarding the impact of O.S.2973 of 1986. It was a suit for injunction and it was dismissed for default. It is submitted by the learned counsel for the plaintiff that there was a direction to amend the valuation to hold that the Munsiff's Court does not have jurisdiction to try the case. The said findings was challenged unsuccessfully before the High Court and order of the trial court was confirmed but an opportunity was given to the plaintiff therein to amend the valuation portion. But the plaintiff did not carry out the same and, therefore, non carrying out the orders of the court, the suit was dismissed for default. At any rate it has to be stated that it is not a disposal on merits. The court has not applied its mind. It A.S.No.171 OF 2001 4 was really a disposal under Order 7 Rule 11 of C.P.C and, therefore, the principle of resjudicata will not apply. So also the bar to file a civil suit will not raise in such a case. Under Order 7 Rule 13 states that the rejection of the plaint under certain circumstances will not bar a suit under the same cause of action. Therefore, the finding of the trial court that O.S.2973 of 1986 will operate as resjudicata can not be sustained. 4. Now we have to consider the other points in this case. Now so much water has flown and the Honourable Supreme Court in the decision reported in Kerala State Electricity Board v. M.R.F Limited, [(1996) 1 Supreme Court Cases 597], had approved the fact that the Electricity Board is entitled to get interest at the rate of 18%. Subsequently, in another matter reported in Kusumam Hotels (P) Ltd. V. Kerala State Electricity Board, [2008 (3) KLT 276 (SC)] the Hon'ble Apex Court held that “The same principle would apply in this case also but the bill having been raised only in 2003, the question of charging any interest thereupon from the retrospective date would not arise”. Now whatever may be the reasons the Kerala State Electricity Board had raised the bill only on 8.12.1986, therefore, staking claim for interest prior to that period is invalid. A.S.No.171 OF 2001 5 If interest is calculated from 8.12.1986 on the arrears of electricity charges namely Rs.1,88,068.88/- for a period of 7 years and 2 months which ends on 21.2.1994 where an amount of Rs. 1,00,000/- is paid the amount due at that point of time, would be Rs.4,30,520/-. When amount of Rs.1,00,000/- paid is adjusted towards the interest, the amount due as on 21.2.1994 would come to Rs.3,30,520/- out of which Rs.1,88,000/- is the principal amount, namely the arrears of Electricity charges. Then the next payment of Rs.88068.00/- is made on 8.5.2001, ie, after a period of 7 years and 2 months. When interest is calculated for said period it would come to Rs.2,42,520/- making a total amount of Rs.5,73,040/- due on that date, namely 8.5.2001. When the amount of Rs.88,068/- paid on that date is deducted the amount of as on 8.5.2001 would come to Rs.4,84,972/- which takes in the principal amount of Rs.1,88,068.88/-. Till the actual payment is made 18% interest is liable to be paid to the Kerala State Electricity Board on the sum of Rs.1,88,068.88/-. Therefore, the contention of the plaintiff that no amount is due and the whole amount has been paid cannot be accepted. In the light of the Supreme Court decision whereby the entitlement of interest is also granted nothing survives for determination in this case but A.S.No.171 OF 2001 6 to hold that the Kerala State Electricity Board is entitled to get Rs.4,84,972/- on 8.5.2001 with further addition that they will be entitled to get at the rate of 18% interest on the sum of Rs.1,88,068/- till the actual payment is made. So for the purpose of recovery of this amount, the Kerala State Electricity Board is entitled to proceed in accordance with law. Now, I direct the Kerala State electricity Board to calculate in accordance with the above statement shown and prepare a fresh revised bill directing the plaintiff to pay the amount within a reasonable time and on failure thereto it can proceed in accordance with law. Appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE mns