1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 230 OF 2005 WITH CROSS OBJECTION NO. 19 OF 2005 1. Government of Goa through the Secretary(Power) having its office at the Secretariat, Panaji-Goa. 2. The Chief Electrical Engineer, Government of Goa, having its office at Vidyut Bhavan, Panaji-Goa. ... Appellants versus Shri Balaji Rollings Pvt. Ltd. a company registered under Indian Companies Act, 1956 having office at M.14-15, Cuncolim Industrial Estate Cuncolim Goa. ... Respondent Shri S. S. Kantak, Advocate General with Shri A. Kamat, Additional Government Advocate for the Appellants. Shri V. B. Nadkarni, Senior Advocate with Shri N. Noronha, Advocate for the Respondent. CORAM : D. G. KARNIK & F. M. REIS, JJ. RESERVED DATE : 20th AUGUST, 2011. PRONOUNCED ON : 23rd AUGUST, 2011. JUDGMENT(Per F. M. REIS, J.) 2 The above appeal challenges the Judgment and Decree dated 29-4-2005 passed by the learned IInd Adhoc Additional District Judge at Panaji in Civil Suit No.122 of 2004(New). 2. The parties shall be referred to in the manner they so appear in the cause title of the impugned Judgment. 3. The plaintiff filed a suit on the ground that the defendants supplied electricity to the public of the State of Goa and that the State Government has all the powers and obligations of a licensee under the Indian Electricity Act, 1910. According to the Defendants, an agreement was executed on 5-3-1997 between the defendants and the plaintiffs for the supply of 4000 KVA. It is further their case that though as per the agreement, the defendants were to supply 4000 KVA to the plaintiffs but on account of non availability of power at Cuncolim Estate where the establishments of the plaintiffs was located for reasons beyond their control and for no fault on the part of the plaintiffs they were prevented from consuming the electricity as per the said agreement. The plaintiff-Company was able to avail of only 3 2050 KVA since the date of power supply was made available to them on 3-6-1997 and that too not for 24 hours of a day in a month. Despite of making representations to the Executive Engineer, about the non availability of the power, the plaintiffs were unable to operate one of the two furnaces installed at the Cuncolim Industrial Estate. It is further their case that the Executive Engineer had duly certified the above factual position in the Certificate dated 7-8-1997. Accordingly, the plaintiffs had approached the Chief Electrical Engineer with their grievance. Inspite of not being allowed to use the full contract demand, the plaintiffs were billed and were charged for certifying the demand though they actually used 2050 KVA. They further stated that by letter dated 9-10-1997, the Chief Electrical Engineer had confirmed that the plaintiff-Company was using only half of the contractual demand. It is further their case that there are two tariff systems, one is the flat rate system and the other is known as the two part tariff systems. It is further their case that a grievance should be read and construed in all respects in the provision of the Indian Electricity Act, 1910, and that the minimum demand charges can be levied and collected only when the licensee is ready to supply the contractual quantity and whenever the licensee is unable to supply, it 4 would be illegal to make the consumer liable to pay for energy not consumable. It is further their case that despite of not being able to supply the energy as per the said agreement, they were billed for final demand charges without giving any deduction. It is further their case that they had filed a Writ Petition before this Court wherein the Central Excise had called for the Report from Department of Electricity about the availability of power who specified that only 54% of the power contracted to be made available was actually made available and granted and as such 46% deduction in excise duty was granted to the plaintiffs. It was further their case that the plaintiffs were entitled to recover from the defendants the excess amount collected from them as demand charges in respect of the monthly bills. In view of the said statement of the Government that they could supply only 46% of the contracted energy supply. The plaintiffs also contend that such deduction was given to similar industries at Kundai Industrial Estate. The plaintiffs accordingly sought for a decree directing the defendants to pay a sum of Rs.1,08,53,298/- being Rs.65,35,491/- towards refund of excess payments made from July, 1997 and Rs.43,17,807/- towards interest at 2% per month compounding monthly from the date of the respective excess payments until 15-9-2000 and further interest at the same rate 5 from the date of the institution of the suit till actual payment. 4. The defendants filed their written statement and disputed the claim of the plaintiffs. It was their case that the plaintiffs had no cause of action to file the suit. It is further their contention that the plaintiffs have not been prevented from consuming electricity and energy of 4000 KVA as per the contractual demand except for peak load restrictions. It is further their case that the plaintiffs had consumed 3960 KVA per month in the month of October, 1997 as per what was recorded with the Department and subsequently it continued to consume more than 3000 KVA. It is further their case that the Certificate dated 5-8-1997 was issued to the plaintiffs at their request to enable them to assess the installed capacity of the unit and that as per the plaintiffs letter dated 5-8-1997 the plaintiffs were running one 3 ton furnace cubical and were planning to start production from second furnace from September, 1997 and the contracted demand could not be utilized by the plaintiffs on account of the non installation of the second furnace. It is further their case that they availed of the electricity supply during all the months which is reflected in the bills issued by the plaintiffs from time to time. The defendants disputed the contention of the plaintiffs that they were 6 able to use only half of their contracted demand due to non availability of power. It is further their case that as per Clause 12 of the agreement, the plaintiffs had agreed to restrict, stagger and cut off the consumption of electrical energy under the agreement during the peak hours. It is further their case that rest of the power has been supplied to the plaintiffs and they have drawn the quantity of electrical energy as per their requirements. It is further their contention that the decision of the defendant No.1 to bill the industries on pro-rata basis was taken only in respect of industries that were melting industries and there were restrictions to draw power only for 10 days, 15 days or 20 days in a month, and as such, the Department in consultation with the Government of Goa decided to bill the said industries as far as the demand charges are concerned on pro-rata basis whereas the energy charges were levied and billed as per the actual energy consumed by the said industries. It is further their case that power was available to the plaintiffs throughout the month, barring peak hour load restrictions in the days which were as per the agreement between the parties. It is further their case that the defendants did not illegally disconnect the power supplied to the plaintiffs as the same was for non payment of energy charges. The claim put forward as per Annexure 'A' was also disputed by the defendants. For 7 other reasons stated in the written statement, it was the case of the defendants that the suit deserves to be dismissed. 5. On the basis of the pleadings, two issues were framed and evidence was recorded on behalf of the plaintiffs of Shri Vijendra Kumar Singla. He has filed his affidavit in evidence and was duly cross- examined. The learned Judge by Judgment and Decree dated 29-4-2005 partly decreed the suit and directed the defendants to refund the sum of Rs.65,35,491/- to the claimants. 6. Being aggrieved by the said Judgment, the Defendants preferred the present appeal. The plaintiffs on being served, filed their cross-objections claiming interest on the amount decreed. 7. Shri S. S. Kantak, learned Advocate General for the defendants has assailed the impugned Judgment and submitted that on the basis of the evidence on record, the plaintiffs were not entitled for any reliefs. Learned Advocate General pointed out that there was no default committed by the defendants with the supply of electrical energy to the plaintiffs. He further pointed out that the power supplied was 8 supplied on the basis of the requirements of the plaintiffs and there were no restrictions imposed as far as the plaintiffs are concerned. Learned Advocate General submitted that the document sought to be relied upon by the plaintiffs of the Electrical Engineer is not duly proved nor can the same be relied upon to saddle a liability on the defendants. Learned Advocate General further submitted that there is no material on record produced by the plaintiffs to establish that any cut in consumption was ordered to the Cuncolim Industrial Estate. Learned Advocate General further submitted that all the documents produced by the plaintiffs were marked 'X' for identification and the same were not exhibited and as such, the learned Judge could not have read the said documents in evidence. Learned Advocate General took us through the notification and pointed out that all the billings were as per the said notification. Learned Advocate General produced the bills issued by the defendants and pointed out that the same were in accordance with the terms of the agreement executed between the plaintiffs and the defendants. Learned Advocate General further pointed out that the plaintiffs have miserably failed to establish that the defendants were not in a position to supply 4000 KVA. Learned Advocate General took us through the agreement executed between the parties and pointed out Clause 12 thereof to 9 demonstrate that the plaintiffs agreed to restrict stagger and cut off the consumption of electricity energy under the agreement during the peak hours as may be directed by the supplier. Learned Advocate General also went through the letter dated 4-3-1997 addressed to the plaintiffs and pointed out that the supply of electricity energy was subject to 100% load restrictions from 18.00 to 22.30 hours. Learned Advocate General took us through the correspondence and pointed out that there was no grievance raised by the plaintiffs about any restrictions to the supply of electrical power but the only grievance was to the restrictions in the timings of the user of the electrical energy. Learned Advocate General took us through the impugned Judgment and pointed out that the learned Judge has not at all considered the real points in controversy and relied upon inadmissible evidence to partly decree the suit. Learned Advocate General submitted that the impugned Judgment deserves to be quashed and set aside. Learned Advocate General further submitted that Annexure 'A' produced by the plaintiffs has not been proved nor the author thereof has been examined. Learned Advocate General further submitted that merely producing such documents without proof of the entries therein cannot in any way make the defendants liable to pay any amounts claimed by the plaintiffs. 10 8. Shri V. B. Nadkarni, learned Senior Counsel for the plaintiffs has supported the impugned Judgment. Learned Senior Counsel pointed out that there was ample evidence on record to substantiate the contentions of the plaintiffs that the defendants were not in a position to supply the contractual electrical energy. Learned Senior Counsel further submitted that on account of the default on the part of the defendants, the plaintiffs were unable to use both the furnaces which were installed. Learned Senior Counsel further submitted that the correspondence on record itself establishes that the defendants were not in a position to supply the contractual electrical power. Learned Senior Counsel further submitted that once it is established that the contractual electrical power was not supplied, the defendants were not entitled to claim the minimum charges as sought to be demanded by the defendants. Learned Senior Counsel further took us through the evidence on record especially the bills and pointed out that the defendants had demanded the amount in excess which they are liable to refund to the plaintiffs. Learned Senior Counsel further submitted that the learned trial Judge was not justified in partly decreeing the suit as according to him, the plaintiffs were also entitled for interest as prayed for. Learned Senior 11 Counsel further submitted that on account of non supply of the requisite power of electrical energy, the plaintiffs suffered substantial losses and were deprived of using their establishments at optimum level. Learned Senior Counsel took us through the provisions of the Indian Electricity Act, 1910 and pointed out that the defendants were not entitled to claim the amount as demanded in the impugned bills. In support of his submissions, learned Senior Counsel relied upon the Judgments reported in Canara Bank, Bombay v. Eastern Mechanical Works, Bombay and another(2008(5) Mh.L.J. 720), M/s. Northern India Iron and Steel Co. v. State of Haryana(AIR 1976 SC 1100) and M/s. Raymond Ltd. and another v. Madhya Pradesh Electricity Board and others(AIR 2001 SC 238). 9. Having heard learned Advocate General and learned Senior Counsel, and on perusal of the record, the following points for determination arise in the present appeal:- 1. Whether the learned Judge was justified in partly decreeing the suit and directing the defendants to pay to the plaintiffs a sum of Rs.65,35,491/-? 2. Whether the learned Judge was justified in 12 refusing the grant of interest at the rate of 2% per month compounding monthly from the date of the respective excess payment until actual payment to the plaintiffs? 10. On perusal of the impugned Judgment, we find that the learned Judge has relied upon the certificate which, inter alia, mentions that the plaintiffs were not provided with power supply from 6.00 p.m. to 11.00 p.m. everyday and from 6.00 a.m. to 6.00 p.m. on alternate days due to power system constraints. As far as non supply of electricity is concerned from 6.00 p.m. to 11.00 p.m., the same was contemplated at the time of the approval of releasing of load to the plaintiffs as rightly demonstrated by learned Advocate General. Even assuming that the said letter dated 07.08.1997 is to be accepted, there is no evidence on record to substantiate the period during which such supply was not given to the plaintiffs on alternate days from 6.00 a.m. to 6.00 p.m. There is no material to substantiate that such situation went on during the entire period as claimed by the plaintiffs. Apart from that, letter dated 26-10-1998 relied upon by the plaintiffs is not in respect of Cuncolim Industrial Estate where the establishment of the plaintiffs is located but the same refers to the industries located at Kundaim and Madkaim Industrial Estates. There is no evidence on record adduced by the 13 plaintiffs to establish that they were in a position to consume electricity beyond the one which was supplied to them by the defendants. We find the evidence on record is not sufficient for the Court to come to a definite conclusion as to whether there was any default committed by the defendants in the supply of the contractual load energy which resulted in any loss to the plaintiffs. Merely producing a statement of account without any proof as to the actual capacity of the plaintiffs to utilize the electricity, cannot saddle the defendants with any liability to pay compensation on account of non supply of energy as per the contractual commitments. Merely because a decision was taken to give some concession on pro rata basis on electricity charges with regard to the industrial establishments located at Kundaim and Madkaim estates would not necessarily imply that the same situation was in existence at Cuncolim Industrial Estate where the establishment of the plaintiffs was located. When the party is seeking damages refund of excess billings on account of any such default, it is incumbent upon him to establish the actual default committed by such party by cogent and admissible evidence. There is no conclusive evidence on record to establish that there was any default committed by the defendants in supply of the energy which resulted in the plaintiffs being entitled to claim the 14 amounts from the defendants. We are also not impressed with the conduct of the defendants in not adducing evidence before the learned trial Judge in support of their contentions, raised in the written statement. 11. Though, it is well settled that it is for the plaintiffs to prove their case, nevertheless considering the evidence on record, there is no sufficient material adduced by the plaintiffs for the Court to come to the conclusion that there was a default in the supply of electrical energy to the plaintiffs during the contractual period which resulted in loss to the plaintiffs. We find that in the interest of justice, an opportunity is to be given to both the parties to lead further evidence in support of their respective claims and direct the learned trial Judge to decide the suit afresh in accordance with law. 12. The claim of the plaintiffs of the interest which has been refused by the learned trial Judge whilst passing the impugned Judgment will also have to be examined by the learned Judge after hearing both the parties afresh whilst disposing of the suit. The points for determination are answered accordingly. It is made clear that the learned Judge shall decide the said suit on its own merits without being influenced with any 15 of the findings on merits of the dispute rendered herein above. 13. In view of the above, we pass the following Order:- ORDER 1. The appeal and Cross Objection are partly allowed. 2. The impugned Judgment and Decree dated 29-4-2005 is quashed and set aside. 3. Civil Suit No.122 of 2004 is restored to the file of the learned Additional District Judge, Panaji. 4. The learned Judge is directed to decide the said suit afresh after giving both the parties an opportunity to be heard and adduce further evidence in support of their respective claim and pass a fresh Judgment on the basis of the evidence which has already been adduced and to be advanced hereafter, in accordance with law. All the contentions of both the parties are left open. 5. The appeal and cross objection are disposed of accordingly with no order as to costs. 6. Parties are directed to appear before the learned Judge on 03.10.2011 at 10.00 a.m. . D. G. KARNIK, J. F. M. REIS, J. RD