1994 PLP 596 (CLC)

(9)??????? Whether the Plaintiff‑Company is entitled for the claim prayed for? (10) What should the decree be? 3.???????? My findings on the above issues are as follows:‑‑

4. ISSUE No.1. Exh.5/2 is the letter dated 8‑7‑1985 whereby the plaintiff‑company desired the reduction of the electric load from 150 KW to 50 KW. It is a short letter and is quoted below:‑‑ "Having incurred heavy losses we have decided to close our factory, We have a contracted load of 150 KW, we request you to reduce it to 50 KW immediately." In para. 2 of the written‑statement the defendants admit the receipt of this letter. It is further stated by the plaintiffs in para. 4 of the plaint that as desired by the defendants, they (the plaintiffs) submitted the "Test Completion Report" on 21‑9‑1985 which is Exh.5/3. The defendants did not deny this fact in their written‑statement and their witness D.W.1 Azam Panwar admitted this in his examination‑in‑chief. However the defendants added that on 14‑3‑1987 they had issued Demand Notice for Rs.42,

326. The date "14‑3‑1987" appears to be incorrectly given by the defendants in their written‑statement because this Demand Note (or Power Quotation as it is styled) is Exh.5/4 and the issue date given over it is "3‑5‑1986" and it was valid up to 2‑8‑1986 for payment which date was extended up to 15‑1‑1987. The date of payment of this amount is not clearly stamped by the bank accounting machine but it must be before 15th January 1987. The plaintiffs state that ‑the reason of this delay in the payment was that according to them this demand was exorbitant and they were demanding its reduction but the defendants did not reduce it and eventually? they got the validity of the demand extended up to 15‑1‑1987 and paid it before that time. However, the needful was still not done and another Demand Notice for Rs.4,500 was issued on 14‑7‑1987 which was also paid on 15‑12‑1987. However, the defendants took another eight months and the load was reduced in August 1987. During all this period the defendants continued to charge Rs.8,588 by way of fixed charges. These fixed charges were payable on 150 KW load and they were in addition to the charges for the electricity consumed as per meter (It is admitted position that the factory had been closed in July 1985 and, therefore, electric charges as per meter were Zero but the plaintiffs were being charged "fixed charges" nevertheless until August 1987.

5. It is evident that the defendants delayed the action on the request of the plaintiff‑company for the reduction of the load. Immediately on receiving the request of plaintiffs for reduction of the load as per Exh.5/2 on 08th July 1985 the defendants should have issued the demand notice at the latest by the end of the month or if they wanted any test report, they should have intimated the plaintiffs in that regard within the same time. It is, however, evident that the defendants slept over the matter and took no action and it was only when the plaintiffs personally approached them that on oral demand test report was made. Even so the test report (Exh.5/3) was submitted on 21‑9‑1985. Since the reduction of the load would have saved the plaintiffs from paying the fixed monthly charges it was the duty of the defendants to have taken action on Exh.5/2 on 08th July 1985 itself so that all formalities were completed within a month. At any rate delay after submission of test report (21‑9‑1985) is not justified in any case. When the D.W‑1 Azam Aanwar Dy. Chief Controller (Billing) of KESC was asked to explain the delay, his answer was "I cannot say". This was an admission on his part that the delay was unjustified.

6. I? would, therefore, hold that the? defendant‑company caused unnecessary delay in meeting the request of the plaintiff‑company. The issue is, therefore, decided in the affirmative. I may here also add that since the load was required to be reduced, there was no necessity of any test report and it was A also unnecessarily demanded by the defendants.

7. ISSUE No.2:

‑After the decision of the Electric Inspector dated 14‑1‑1987, the defendants had only two alternatives ‑‑‑‑ either to appeal to Secretary Irrigation or to comply with the decision. As such, it was not only mala fide but illegal on the part of the defendants to keep on billing the plaintiffs with the "fixed charges". Issue decided accordingly.

8. ISSUE No.3.‑‑‑When a consumer is getting certain load and he wants to increase it, it may require strengthening the supply lines/cables and other equipment and this may require expenditure but when a customer wants the reduction of load, it does not require any expenditure. The supply line/cables and other equipment which are fit enough for higher load can take the lesser load without any difficulty. There is nothing on record to sustain the charges of Rs.42,

326. There is even less justification for a subsequent demand of Rs.4,500 vide Exh.5/5. The issue is decided accordingly.

9. ISSUE No. .‑‑‑The defendants could not justify the delay from July 1985 to August 1987. Their witness was totally blank on the point of delay. Under the circumstances, the only inference which can be drawn is that the delay was in violation of the Schedule of the Electricity Act and was due to sheer inefficiency or callousness on the part of the defendants. The issue is 8 decided accordingly.

10. ISSUE No.5.‑‑‑Complaint filed by the plaintiffs under sections 24 and 26 bf the Electricity Act was decided by the Electric Inspector on 14th January 1987 (Ex.5/13). Copy of the decision was duly sent to the defendants as endorsement thereon shows. Under Rule 6‑B of Electricity Rules, 1937, the defendants could appeal to Secretary Irrigation and Power Department Government of Sindh within three months. Since no appeal was preferred within this time, Deputy Secretary (Power) Government of Sindh vide his letter dated 29th April 1987 (Exh.5/14) directed the defendants to comply with the decision of the Electricity Inspector. It was after this that the defendants preferred appeal to the Secretary on 3‑5‑1987 as per averment in para. 11 of the plaint. It was, therefore, clearly barred by time. It was in para. 11 of the plaint that the plaintiffs had raised this issue of limitation. In para. 8 of their written‑statement the defendants replied that the appeal was filed in time but no date of filing of appeal was given nor copy of the appeal was filed. Even in evidence, not a single word was said by their witness‑nor copy of the appeal was filed to show that it was filed in time. The defendants have not filed even copy of the Appellate Order. Averment made by the plaintiffs in this regard goes unrebutted and I would hold that the appeal was filed on 3‑5‑1987 and thus it was a time‑barred appeal and Secretary Power and Irrigation committed serious error in entertaining it. He was not competent to hear time‑barred appeal. The issue is, therefore, decided in the negative. .

11. Besides, the plaintiffs had also pleaded in para. 11 of the plaint that the Secretary Power and Irrigation had ex parte entertained this appeal and had also decided it ex parte but this allegation was not denied in the written? statement and shall therefore be deemed to be admitted.

12. ISSUE No.6.‑‑‑Strictly speaking, the defendants should not have billed "fixed charges" after receiving the request of the plaintiffs for the reduction of the load vide Exh.5/2. I would, however, allow grace period of two months f (July and August 1985) and would hold that the defendants were not entitled to charge the "fixed charges" after 30th August 1985 and should refund the same. Issue decided accordingly.

13. ISSUE No.7.‑‑‑The calculations given by the plaintiffs in para. 16 of the plaint were not denied by the defendants. Even so, the calculations have been checked and are found to be correct. However, in view of the finding under Issue No.6, fixed charges for July and August 1905 amounting to Rs.17,170 will be deducted from the total of Rs.1,49,969.74, which gives Rs.1,32,799.74. The issue is decided accordingly.

14. ISSUE No.8.‑‑‑This issue does not arise out of the pleadings of the parties and is, therefore, cancelled.

15. ISSUE No.9:

In view of my findings under Issue No.5, the decision of the Electric Inspector dated 14‑1‑1987 (Exh.5/13) holds the field. As such, the order of remand dated 23‑7‑1987 passed by the Secretary Power & Irrigation and the subsequent order passed by the Electric Inspector on 20‑10?1987 and the subsequent order of the Secretary Power & Irrigation dated 12‑4?1988 (Exh.5/15) are all void and illegal. The plaintiff‑company is, therefore, D entitled to the claim as per decision Exh.5/13 and in addition to that the plaintiff‑company is also entitled to the refund of Rs.42,326 and Rs.4,500 vide findings under Issue No.3. The issue is, therefore, decided in the affirmative.

16. ISSUE No.10.‑‑‑In view of the above findings the suit is decreed with costs in the sum of Rs.1,49,969.74. The plaintiffs are also held entitled to interest @ 14% from the date of the suit till the realisation of the decretal amount.

17. Since it is a clear case of negligence and callousness on the part of certain members of the staff of the defendants, the defendants may look into the desirability of holding an enquiry and fixing the responsibility and recovering the decretal amount from them in proportion of their part in the delay from 1st September 1985 to August 1987. AA./1‑232/K?????????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.