GOVERNMENT OF GOA Vs. SUNRISE ELECTROMELT LTD

JUDGEMENT

(1.) The above appeal challenges the Judgment and Decree dated 29-4-2005 passed by the learned Additional District Judge at Panaji in Civil Suit No.127 of 2004.

(2.) The suit came to be filed by the Respondent on the ground that the Plaintiff has set up a factory for manufacturing of Steel Ingots at Cuncolim Industrial Estate, Cuncolim, and that as required under the provisions of the Indian Electricity Act, 1910, an agreement was entered into on 8-2-1995 between the State Government of Goa/Appellant and the Respondent-Company for the supply of 1950 KVA. It is further their case that though the Appellant had agreed to supply 1950 KVA to the Respondent due to the non availability of the power at the Cuncolim Industrial Estate, for reasons beyond their control and for no fault on the part of the Respondent, they were prevented from consuming electricity as per the Contract demand. It is further their case that the Respondent was not able to avail of the power for all 24 hours of a day in every month and in fact, a Certificate was issued dated 4-8-1997 by the Executive Engineer certifying that the Company is not provided with the power supply from 6.00 p.m. to 11.00 p.m. every day and also that the power supply is not made available to them from 6.00 a.m. on alternate days due to the power system constraints. It is further their case that they had agreed to pay to the Government, as supplier of power for the power energy at the rates specified in the Supplier's Standard Rate Schedule applicable to the class of service and in force from time to time. It is further their case that there are two well known systems of tariff, one is that of a flat rate system and the other is known as the two part tariff system. The flat rate system is charged on units of energy consumed whereas the two part tariff system contemplates that the amounts are paid by calculating the demand charges to cover investment, installation and the standing charges to some extent and the energy charges for the actual amount of energy consumed. It is further their case that the agreement contemplates that it is in conformity with the provisions of the Indian Electricity Act, 1910. It is further their case that irrespective of the terms of the said agreement, on a true construction of the Indian Electricity Act and the Schedule, the minimum demand charges as per the said Schedule cannot be levied in cases where on account of power cut imposed by the licensee, the customer is unable to take the full contracted quantity and should be reduced prorata to the extent in which the supplies are made. It is further their case that the minimum demand charges could be levied only in cases where the Appellants were in possession to supply the electrical energy as per the Contract demand. It is further their case that without giving any prorata reduction on failure on the part of the Appellants in supplying the electrical energy the demand charges were levied on the Respondent. It is further their case that there were directions from the Chief Engineer of the Electricity Department vide Circular dated 26-10-1998 to bill the industries of Ferro Alloy Steel and Steel Rolling Mills on prorata basis. It is further their case that the Electricity Department has illegally disconnected the power supply to the Respondent on 15-7-1999 for not effecting the payments of the said charges though the Appellants were not entitled to claim such amounts. The Respondent further contends that the Appellants have collected excess amounts from them and accordingly filed the suit for recovery of the excess amounts collected from the Respondent by the Appellants as demand charges in respect of the monthly bills as stated at Annexure 'A'. Accordingly, the suit came to be filed claiming a sum of Rs.37,57,951/- being the amount towards the excess amount collected as well as interest at 2% per month compounded monthly and for further interest as mentioned in the plaint.

(3.) The Appellants filed their written statement raising different contentions. The Appellants, inter alia, stated that in the agreement executed between the parties one of the condition was that the consumer could not draw any power during the period from 18 hours to 22 hours on all the days as and when the situation warrants and on account of the load restrictions there were some constraints in the supply of power. It is further their case that during the month of August, 1997, the Respondent had consumed 3,15,735 units and the constraint in the power supply was of a temporary nature. The Appellants deny that they were not entitled from claiming the minimum demand charges as per the Schedule on account of the power cut imposed by the licensee. It is further their case that as per Clause 12 of the said agreement, the consumer has agreed to restrict stagger and cut off in the consumption of electrical energy under the said agreement during peak hours. It is further their case that they are entitled to recover the annual minimum guarantee recoverable for seven years from the Respondent. It is further their case that the decision of the Appellants in instructing the Superintending Engineers and Executive Engineers to bill the industries on prorata basis was taken only because the said industries were melting industries and there were restrictions to draw power only for 10 days, 15 days or 20 days in a month and as such, the Department in consultation with the Government of Goa decided to bill the said industries as far as the demand charges are concerned only on prorata basis whereas the energy charges were levied and billed as per the actual energy consumed by the said industries. It is further their case that the power supply was available to the Respondent throughout during the month barring the peak hour load restrictions on the day which was as per the agreement executed between the parties. Denying the contentions raised by the Respondent by filing the said written statement and stating that there was no default committed by the Appellants in the supply of electrical energy, the Appellants contended that the Respondent is not entitled for any reliefs in the suit and prayed for dismissal of the suit. After framing the issues and recording of the evidence, the learned Additional District Judge by Judgment and Decree dated 29-4-2005 partly decreed the said suit and directed the Appellants to refund an amount of Rs.22,05, 839/- to the Respondent.