IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WA.No. 476 of 2009() -------------------- {IN WPC.90/2009 OF THIS COURT} .................... APPELLANT(S): PETITIONER ---------------------------------------------- P.SUNDERDAS, AGED 62 YRS,S/O.P.KRISHNAN, MANAGING DIRECTOR, CANNANORE ROLLER FLOUR MILLS PRIVATE LTD, KADACHIRA, KANNUR DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENT(S): RESPONDENTS ----------------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KADACHIRA, KANNUR DISTRICT. BY ADV.SRI.C.K.KARUNAKARAN - SC FOR KSEB THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, Ag.C.J. & V.GIRI, J. ----------------------------------------- W.A.No.476 of 2009 ----------------------------------------- Dated this the 3rd day of March, 2009. JUDGMENT GIRI, J. The petitioner, the Managing Director of a Private Limited Company, filed the writ petition challenging Ext.P3, insofar as it contained a demand for surcharge. He also sought for a declaration that the Electricity Board which had issued Ext.P3 is not entitled to recover the said amount in view of Section 56(2) of the Electricity Act {for short “the Act”}. There was an alternative prayer for permission to pay the amount as shown in Ext.P2 in 50 instalments excluding surcharge. Learned single Judge repelled the contention and dismissed the writ petition. Hence this writ appeal. 2. The appellant/petitioner is Managing Director of Cannanore Roller Flour Mills Private Limited, Kannur. It has an LT IV connection. The multiplication factor adopted by W.A.No.476 of 2009 :: 2 :: the Board in relation to the consumer is 40. But for some reason, during the period from September, 2005 to October, 2008, 20 was adopted as the multiplication factor instead of 40. It naturally resulted in short levy of charges actually due from the consumer. On realising the mistake, Ext.P2 additional invoice was issued. The petitioner did not have any dispute as regards the actual charges payable under Ext.P2. But, the petitioner prayed for facility to pay the said amount in instalments. Though the petitioner requested for 50 instalments, the Board granted only 24 instalments as evidenced by Ext.P3. But, since the instalment facility was granted, the Board also levied surcharge on such charges, commencing from the second instalment. The writ petition was filed essentially challenging the levy of surcharge on the instalments so levied under Ext.P2. Learned single Judge repelled the contention and hence this appeal. 3. The only point that has been urged in this appeal is that the additional invoice came to be issued, not on W.A.No.476 of 2009 :: 3 :: account of the fault of the consumer, but on account of the fault committed by the Board. Therefore, surcharge ought not to have been levied thereon. It is true that adoption of 20 as a multiplication factor instead of 40, was not on account of the mistake that can be attributed to the consumer and therefore, if surcharge has been levied for the period up to the detection of the mistake, then as rightly noted by the learned single Judge, the contention raised by the consumer in that regard would have merited acceptance, but what happened in the instant case is that on realising the mistake, an additional invoice is issued. The said additional invoice, as evidenced by Ext.P2 was comprised only of the short collection of current charges along with the leviable duty thereon. Had the petitioner, on realising the mistake, remitted the amount due under Ext.P2, then he would not have faced the demand for surcharge which is actually interest on belated payment. But such surcharge is imposed under Ext.P3 only because the appellant requested for W.A.No.476 of 2009 :: 4 :: instalments. Therefore, though the amount became payable, at least, on the service of demand under Ext.P2, the appellant was granted the facility to pay the same in 24 instalments. Such a facility obviously could be availed, only if the consumer was ready to pay interest on such belated payments. Interest is levied only for the period subsequent to the service of the demand notice and not for the period prior thereto. If that be so, the imposition of surcharge under Ext.P3, which is only another name for interest on belated payments is perfectly justified. 4. The other contention raised before the learned single Judge under Section 56(2) of the Act really does not arise for consideration in the facts and circumstances of the case. The contention regarding the bar of limitation arising under Section 56(2) of the Act was raised only in relation to the imposition of surcharge. The surcharge came to be imposed only on acceptance of the appellant's demand for facility to pay the amount due under Ext.P2 in instalments. W.A.No.476 of 2009 :: 5 :: The appellant had not disputed his liability to pay the amounts due under Ext.P2. We are in complete agreement with the findings of the learned single Judge. We see no merit in this appeal and accordingly, the same is dismissed. The appellant is granted time upto 15.03.2009 to pay the 3rd instalment. But it is made clear that no extension as such is contemplated in relation to the other instalments. Sd/- (J.B. KOSHY) ACTING CHIEF JUSTICE Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge