Regular Second Appeal No. 440 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 440 of 2009 Date of decision : September 15, 2010 Vivek Saini ....Appellant versus Dakshin Haryana Bijli Vitran Nigam Limited and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. BS Walia, Advocate, for the appellant None for the respondents L.N. Mittal, J. (Oral) Plaintiff Vivek Saini is in second appeal. Plaintiff is consumer of electricity from the defendants. Defendants issued notice dated 14.12.2001 imposing penalty of Rs 16,597/- on the plaintiff for alleged theft of electricity. The plaintiff challenged the same in the suit. However, in view of threat of disconnection of electricity connection after filing of suit, the plaintiff deposited the said amount with the defendants under protest and amended the suit to claim mandatory injunction for refund of the said amount with interest. The defendants pleaded that on checking done by defendant no. 3 on 12.12.2001, the plaintiff was found committing theft of electricity as seals of the meter were found tampered with and therefore, penalty has been Regular Second Appeal No. 440 of 2009 -2- rightly imposed upon the plaintiff. Various other pleas were also raised. Learned Civil judge (Junior Division), Hisar vide judgment and decree dated 22.1.2008 dismissed plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Hisar vide judgment and decree dated 8.8.2008 and thereby plaintiff's suit has been decreed and defendants have been restrained from recovering the disputed penalty amount on the basis of memo dated 14.12.2001 and defendants have been directed to refund the amount already deposited by the appellant on the basis of the said memo. Plaintiff has filed the instant second appeal for modification of judgment and decree of the lower appellate court by granting interest also to the plaintiff-appellant. None has appeared for the respondents in spite of service. Same was the position on preceding two dates of hearing. Accordingly, respondents are proceeded ex parte. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the plaintiff-appellant contended that the plaintiff-appellant is entitled to interest on the amount which was illegally recovered by the defendants from the plaintiff. There is considerable merit in the submission. Penalty imposed by the defendants on the plaintiff has been held to be illegal by the lower appellate court and consequently, the defendants have been directed to refund penalty amount of Rs 16,597/-. The defendants, thus, retained the said amount for several years without any right to retain it. The plaintiff was deprived of the said amount for the corresponding period. Consequently, the plaintiff is entitled to interest on Regular Second Appeal No. 440 of 2009 -3- the said amount. Substantial question of law arises for determination in the instant second appeal as to whether the plaintiff is entitled to interest on the penalty amount and non-grant thereof by lower appellate court is illegal. The said substantial question of law is answered in favour of the appellant. For the reasons aforesaid, the instant second appeal is allowed and impugned judgment and decree of the lower appellate courts are modified and in addition to the relief granted by the lower appellate court, defendants are also directed to pay interest on the disputed penalty amount @ 10% per annum from the date of deposit till date of refund. ( L.N. Mittal ) September 15, 2010 Judge 'dalbir'