Regular Second Appeal No. 2066 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2066 of 2008 Date of decision : January 20, 2011 U.H.B.V.N.L./H.V.P.N.L. and others ....Appellants versus Dae Hung Precision Company (India) Pvt. Ltd. ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. K.S. Malik, Advocate, for the appellants Mr. Tejinder Pal Singh, Advocate for the respondent L.N. Mittal, J. (Oral) This is second appeal by defendants who were successful in the trial court but have been unsuccessful in the lower appellate court. Respondent-plaintiff, a Company filed suit against appellants (U.H.B.V.N.L./H.V.P.N.L. and its officers). The plaintiff obtained electricity connection from the defendants on 3.2.2001. The plaintiff leased out the property where the connection was installed, to M/s East West Laminators since February, 2001 till March, 2003. The tenant installed machinery in April/May, 2001 and then started running the unit. Defendants checked the meter on 16.6.2001 and removed it alleging it to be defective. New meter was installed on 21.6.2001. Consumption recorded Regular Second Appeal No. 2066 of 2008 -2- by new meter from July to December, 2001 was 81395 units. Accordingly, taking average consumption of 13566 units per month, defendants issued impugned notice dated 3.3.2003 demanding penalty of ` 2,00,274/- for the period from March, 2001 to June, 2001. The penalty amount was deposited by plaintiff/tenant under protest to avoid disconnection. The plaintiff has challenged the aforesaid demand of ` 2,00,274/- alleging the same to be null and void. It was alleged that tenant's unit started functioning in May, 2001 and therefore, huge amount could not be charged for the period from March to June, 2001. There is also no basis for charging the same. The original meter was working properly. Defendants contested the suit and inter alia, pleaded that the meter installed on 3.2.2001 was defective and did not register actual consumption and it was, therefore, removed on 16.6.2001 and new meter was installed. Consumption from February to June, 2001 was calculated on the basis of average consumption for the next six months from July to December, 2001 and therefore, the impugned demand is legal and valid. It was denied that plaintiff leased out the property to tenant or that new machinery was installed. Defective meter after being removed was sent to Laboratory. Grounds pleaded by the plaintiff in the plaint to impugn the demand were controverted. Learned Additional Civil Judge (Senior Division), Panipat vide judgment and decree dated 11.6.2007 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Panipat vide judgment and decree dated Regular Second Appeal No. 2066 of 2008 -3- 23.4.2008 and thereby plaintiff's suit has been decreed declaring the impugned demand to be illegal and directing the defendants to refund the disputed amount to the plaintiff with surcharge at the same rate which would have been recovered from the plaintiff had he had not deposited the impugned amount, with option to the defendants to adjust the said amount in future bills of the plaintiff. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the meter installed in the premises of the plaintiff was found to be defective as also admitted by the plaintiff himself in the witness box and therefore, impugned demand was made for the previous period on the basis of average consumption for subsequent six months and the said demand is, therefore, justified. On the other hand, learned counsel for the respondent contended that alleged defective meter was sent by the defendants to Laboratory as per defendants' version but test report of the Laboratory has not been produced in evidence to depict that the said meter was running slow and if so at what rate. It was also contended that in fact low consumption of energy was recorded by the said meter till it was removed because the tenant's unit had started functioning some time in May, 2001 only. It was also contended that appeal against impugned demand filed by the tenant on 12.3.2003 has not yet been decided. I have carefully considered the rival contentions. It is Regular Second Appeal No. 2066 of 2008 -4- undisputed that tenant has filed appeal against impugned demand which has not yet been decided by the defendants. It is also a matter of record that Laboratory test report of the alleged defective meter has not seen the light of the day. On the contrary, the plaintiff's case is that tenant's unit started functioning in May, 2001 only and therefore, there was low consumption of energy prior to it. In the aforesaid circumstances, I am of the considered opinion that all these questions can be decided by the defendants in the appeal which was preferred by the tenant before the defendants. Test report of the Laboratory if any may also be seen for this purpose. The fact remains that consumption of electricity from July to December, 2001 was 81395 units i.e. 13566 units per month average whereas consumption of electricity since February to May, 2001 was 284, 704, 864, 1609 units respectively whereas in June, 2001 consumption was 8056 units but it is not clear as to whether it was in the old meter till 16.6.2001 only or after adding consumption recorded in the new meter installed on 21.6.2001. It is also to be adjudicated upon whether tenant's unit actually started functioning in May, 2001 and no substantial energy was consumed prior to it. In the aforesaid circumstances, I am of the considered view that defendants should be directed to decide the appeal preferred by the tenant against the impugned demand. The plaintiff shall be at liberty to pursue the said appeal before the defendants. If the plaintiff is still aggrieved by the decision of the defendants in the appeal, the plaintiff shall be at liberty to challenge the same in accordance with law. It is ordered accordingly. Judgments and decrees of the courts below stand modified to this extent and Regular Second Appeal No. 2066 of 2008 -5- suit stands disposed of in the aforesaid manner. Defendants are directed to decide the aforesaid appeal within four months from today. ( L.N. Mittal ) January 20, 2011 Judge 'dalbir'