1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 28.11.2011 Coram THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)No: 13306 of 2011 and M.P.No.1 of 2011 M/s.India Match Company rep. By partner S.H.Nizamudeen, 90/A-2, Kalugumalai-Kayathar Road, Pazham Cottai, Sankarankoil Taluk, Tirunelveli District. .. Petitioner -Vs- The Assistant Executive Engineer, Urban T.N.E.B, Sivakasi-626 189. .. Respondent Prayer:Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records relating to the impugned order dated 03.10.2011 issued by the respondent herein in letter Ka.No.Uo.SE.PO/UOO/SIVA/VA.A/KO.KA/ANo.621/11 received by the petitioner on 11.11.2011 and quash the same. For Petitioner:Mr.A.S.Mujibur Rahman For Respondent:Mrs.G.Kasinathadurai, Standing counsel for TNEB ORDER The petitioner has come up with the above writ petition challenging the order passed by the respondent demanding payment of a sum of Rs.9,72,522/-, towards arrears of current consumption charges. 2.Heard Mr.A.S.Mujibur Rahman, learned counsel for the petitioner and Mr.G.Kasinathadurai, learned standing counsel for the respondent. 3.The petitioner is a partnership firm. It was started in April 1998 with Mr.S.H.Nizamudeen and his son A.Syed Ahamed alone as its partners. The partnership firm is engaged in trading in matches and raw materials. 4.The petitioner has two service connections bearing Nos.B-152 and B-162, with a load of 5 H.P and 40 H.P respectively. The petitioner claims that they have been very prompt in the payment of current consumption charges in respect of these two connections. 5.It is admitted that there was an another partnership firm by name M/s.Super Chemicals. Though the details with regard to the partners of the said firm by name Super Chemicals, is not clearly borne out by the affidavit in support of the writ petition, it is stated by the petitioner in paragraph No.4 of the affidavit in support of the writ petition that the partners of the petitioner herein were the partners along with 10 others in the said firm by name Super Chemicals. The said firm Super Chemicals had a service connection bearing No.107. M/s. Super Chemicals was said to have been engaged in the manufacture of Potassium Chlorate. It is claimed that the said firm has now been wound up. https://hcservices.ecourts.gov.in/hcservices/ 2 6.The said firm Super Chemicals had committed default in payment of current consumption charges. Therefore, the respondent issued a notice dated 29.04.2002 for recovery of current consumption charges due from M/s.Super Chemicals. But the notice was actually issued to the petitioner firm. Therefore, contending that the constitution of the defaulting firm namely M/s.Super Chemicals is different from the constitution of petitioner herein, a writ petition was filed by the petitioner in W.P.No.15967 of 2002 on the file of this Court. The demand raised on the petitioner firm, for dues of M/s.Super Chemicals, was challenged by the petitioner in that writ petition on two grounds namely a)that the partners of both the firm were different and b)that no enquiry was conducted and no opportunity was given before the demand was raised. 7.The said writ petition W.P.No.15967 of 2002 was allowed by this Court by an order dated 14.03.2011 and the matter was remitted back to the respondent for passing fresh orders, after giving an opportunity to the petitioner. It was made clear in that order dated 14.03.2011 passed by this Court that it was not going into the first question namely as to whether the liability of the defaulting firm could be imposed upon the petitioner or not? 8.The only reason why this Court passed the order dated 14.03.2011 in the previous writ petition was that the petitioner was not afforded an opportunity. 9.Pursuant to the order passed in the writ petition, the respondent issued a show-cause notice dated 11.07.2011. The petitioner gave a reply, contending that the constitution of the defaulting firm was different from the constitution of the petitioner herein. Not satisfied with the reply given by the petitioner, the respondent passed the impugned order dated 03.10.2011, demanding the petitioner to settle a sum of Rs.9,72,522/- due from the M/s.Super Chemicals. Therefore, contending that the impugned order is not in tune with the order passed by this Court in the earlier writ petition, the petitioner is before this Court. 10.As pointed out above, the earlier demand was challenged by the petitioner on two grounds. On the first ground relating to the constitution of the two partnership firms, this Court did not make any pronouncement, either in law or on fact. This Court merely remitted the matter back to the respondents. 11.Today, the learned standing counsel for the respondent submitted that to their knowledge, the defaulting partnership firm namely M/s.Super Chemicals had five partners, whose names and whose relationship with each other can be tabulated as follows: Serial number Name of the partners Relationship 1. S.H.Nizamudeen father 2. Mrs.J.Jannathul Firthouse Brother's daughter 3. S.Pathimuthu Daughter of Nizamudeen 4. Nahoor Mohideen Grandson of Nizamudeen https://hcservices.ecourts.gov.in/hcservices/ 3 5. Hussain Mohideen Grandson 12.Thus, it is seen that partners of M/s.Super Chemicals and the partners of the petitioner herein, were only family members. Mr.S.H.Nizamudeen appears to be the head of the family. Therefore, the petitioners cannot really escape liability, under guise that the constitution of both the firms were different. 13.Even otherwise, the above argument is no more available to the petitioner, in view of Regulation 17(8) of the Tamil Nadu Electricity Supply Code, 2004. The same reads as follows: “where any consumer has more than one service connection, if he defaults in the payment of dues relating to any one of the service connections, the licensee may cause other service connections in the name of the consumer to be disconnected on issuing proper notice till all the arrears due for all the service connections are paid, notwithstanding the fact that the service connections are covered under separate agreements.” 14.A reading of the above regulation would show that when the consumer has more than one service connection, the default in respect of one of them could lead to the disconnection of other service connection, despite the fact that both service connections are covered by separate agreements. 15.Insofar as the liability of partners is concerned, the restriction of liability of a partner, is only vis-a-vis the other partners. Insofar as third parties are concerned, they could recover the entire arrears from any one of the partners and in such an event, the partner from whom money is recovered is entitled to recover the shares of the other partners in independent proceedings. Therefore, the petitioner Mr.S.H.Nizamudeen cannot escape liability for the amount of Rs.9,72,522/-. 16.Even in respect of limited companies, I have pointed in W.P.(md). No.12507 of 2011 dated 23.11.2011 that if the real persons operating under different corporate names are one and the same, the respondent can even go beyond the corporate veil. For doing so, I have derived inspiration from the decision of the Honourable Supreme Court in Amit Products (India) Limited vs. Chief Engineer [2005 (7) SCC 393]. While dismissing the appeal, the Honourable Supreme Court held in para 7 of the report as follows: “7.We have carefully considered the rival contentions of both the parties. We are unable to accept the contention of the appellant Company that by changing the members of the Board of Directors of the Company or by changing the shareholding pattern, the appellant Company had undergone any change. The very same company wanted the electricity connection without making any payment towards the electricity charges payable by the previous consumer and the matter was dealt with in detail by the High Court and it was held that the appellant Company is none other than the sister concern of M/s.Amar Amit Jalna Alloys Pvt., Ltd., and was representing the same consumer who had committed the default and it was held that condition 23(b) of the conditions of miscellaneous charges for supply of https://hcservices.ecourts.gov.in/hcservices/ 4 electricity energy would apply to the appellant company. We do not think that by change of Directors or by change of pattern of shareholding, the appellant Company is really a different entity than M/s.Amit Products (India) Ltd., who filed the previous writ petition No.2090 of 2002. The reasons given in the previous judgment which were confirmed by this Court would apply with all force against the present appellant Company and the High Court has rightly dismissed the writ petition filed by the appellant Company.” 17.In view of the above position, I do not find any reason to interfere with the impugned order. Hence, this writ petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs. Sd/- ASSISTANT REGISTRAR(AE) /TRUE COPY/ SUB ASSISTANT REGISTRAR To The Assistant Executive Engineer, Urban T.N.E.B, Sivakasi-626 189. 1CC To Mr.G.Kasinathadurai, Advocate SR No.41831/11 1cc To Mr.A.S.Mujibur Rajman, Advocate SR No.41621/11 sb 08/12/2011 4p 4c W.P.(MD)No.13306 of 2011 https://hcservices.ecourts.gov.in/hcservices/