IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 RSA.No. 320 of 2009() --------------------- AS.13/2007 of II ADDL.SUB COURT,THRISSUR OS.1378/2000 of I ADDL.M.C.,THRISSUR .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- A.V.YUGIN, PROPRIETOR, RENOY ICE PLANT, MANAPPADY, PERAMANGALAM, THRISSUR. BY ADV. SRI.ROBSON PAUL SRI.RENJITH THAMPAN RESPONDENTS: APPELLANTS/DEFENDANTS ------------------------------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B. MUTHUVARA, THRISSUR PRESENT ADDRESS: ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, MUTHUVARA, THRISSUR. 3. ASSISTANT ENGINEER, K.S.E.B, ELECTRICAL MAJOR SECTION, MUTHUVARA, THRISSUR. PRESENT ADDRESS: ASSISTANT ENGINEER, K.S.E.B, ELECTRICAL SECTION, MUTHUVARA, THRISSUR. ADV. SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1-3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO. 731 OF 2009 IN R.S.A. NO. 320 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 8.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 320 of 2009 ---------------------------------------- Dated this the 8th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 13/2007 on the file of the Sub court, Thrissur which arises from the judgment and decree in O.S. No. 1378/2000 on the file of the I Additional Munsiff Court, Thrissur. The plaintiff in the suit is the appellant herein. The challenge in the suit are the bills issued by the Kerala State Electricity Board (hereinafter referred to as the Board) for additional electricity charges payable for the period from December 1999 to April 2000. Exts.A1 to A2 series are the disputed bills. The suit was filed for declaration that the plaintiff is not liable to pay the bills for additional electricity charges, that the bills are null and void and for consequential injunction. The trial court decreed the suit as prayed for. In appeal, the lower appellate court set aside the trial court's decree and judgment and dismissed the suit. Hence the Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff is a consumer enjoying three phase electric connection. According to him, he was paying the bills regularly ; but the defendants issued a bill of Rs. 83,272/- as additional electricity charges payable for the month of December 1999. to April 2000. The stand taken R.S.A. No. 320 of 2009 -2- by the Board is that though the petitioner is having three phase electric connection, the meter in one phase is defective and hence there was deficiency in the actual consumption of electricity and therefore they issued Exts. A1 to A2 series bills. According to the plaintiff Ext.A1 was not issued on the ground that the meter was faulty and did not record any reading for the said period. 3. It is the case of the defendant that one among the three phases connected to the meter was not functioning and therefore only 2/ 3 of the actual consumption was recorded in the meter. 4. The trial court considered all the oral and documentary evidence and declined to place reliance on Ext.B1 site mahazar stating that Ext.B1site mahazar does not reveal what sort of detailed inspection was conducted as to ascertain whether all the phases functioned or not and therefore Ext.B1 does not have the credence and reliability to support the contention of the defendants that the phases connected to the meter did not function . 5. The trial court also held that since the plaintiff did not complain that the meter fixed in his premises is a faulty one and that the Board had not earlier informed the plaintiff that the meter is running faulty, it cannot be said that the dispute could have been taken cognizance of by the statutory body constituted under the electricity supply Act. The R.S.A. No. 320 of 2009 -3- trial court also found that the suit is maintainable and accepting the averments set out by the plaintiff in the plaint, the trial court decreed the suit as prayed for. 6. The lower appellate court considered in detail the maintainability of the suit. It was contended by the defendants that when the dispute is regarding the non-working of the meter or the correctness of the bill, the same shall be resolved only by the Electrical Inspector and therefore the trial court ought not have entertained the suit. It is also brought to the notice of the lower appellate court that the Anti Power Theft Squad conducted an inspection and it was found that one of the phases out of the 3 phases was not functioning and so only 50% of the consumption of electricity was recorded by the meter. After referring to Section 26(4) and (6) of the Indian Electricity Act 1910, the counsel for the defendants argued that the dispute in that case is regarding the entitlement of the defendants to realise the amount mentioned in Ext.A1 notice and not regarding the correctness of the meter. 7. The definite case of the Board is that because of the non- functioning of one of the phases, only 50% of the consumption of electricity was recorded by the meter. The appellate court followed the decision in Calcutta Electric Supply Corporation Vs. N.M. Banka 1996 (2) SCC 58. held that the dispute is not only regarding the correctness of the meter R.S.A. No. 320 of 2009 -4- but also regarding the correctness of the bill and it is for the Electrical Inspector to resolve that kind of dispute , that when specific statutory remedy is provided by the Indian Electricity Act 1910 it cannot be allowed to be bypassed. In the circumstances the lower appellate court found that the suit is not maintainable and therefore set aside the trial court's decree and judgment 8. I am of the view that the findings entered by the lower appellate court on the question of maintainability of the suit by referring to the statutory provisions laid down in Section 26(4) and (6) of the Indian Electricity Act 1910 and the Apex Court's decision in the Calcutta Electric Supply Corporation's case (Supra) is correct in all respects. I do not find any reason to disagree with the findings arrived at by the lower appellate court. I am also of the view that, in such circumstances the remedy open to the plaintiff/consumer is to approach the Electrical Inspector as opined by the lower appellate court . No grounds are made out to interfere with the lower appellate court's judgment by invoking my jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. 9. However finding that the plaintiff prosecuted the suit bonafidely, I think that in the interests of justice an opportunity shall R.S.A. No. 320 of 2009 -5- be given to the plaintiff to agitate his contentions on merits. The plaintiff is at liberty to move the Electrical Inspector /other statutory appellate authority challenging the disputed bills. The necessary application shall be filed within a period of one month from today. If such an application is filed by the plaintiff, the statutory authority concerned shall decide the dispute after hearing the plaintiff within a period of six months from today irrespective of the fact that the time limit prescribed under the Limitation Act expired. It is made clear that the said application shall be entertained on condition that the plaintiff pay 1/3 of the disputed amount of bills and the dispute shall be decided untrammelled by the findings of the Civil courts and observations in this judgment. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 320 of 2009 ---------------------------- JUDGMENT 8th July, 2009