GOVERNMENT OF GOA Vs. BALAJI ROLLINGS PVT LTD

JUDGEMENT

(1.) The above appeal challenges the Judgment and Decree dated 29-4-2005 passed by the learned IInd Adhoc Additional District Judge at Panaji in Civil Suit No.122 of 2004(New).

(2.) The parties shall be referred to in the manner they so appear in the cause title of the impugned Judgment.

(3.) The plaintiff filed a suit on the ground that the defendants supplied electricity to the public of the State of Goa and that the State Government has all the powers and obligations of a licensee under the Indian Electricity Act, 1910. According to the Defendants, an agreement was executed on 5-3-1997 between the defendants and the plaintiffs for the supply of 4000 KVA. It is further their case that though as per the agreement, the defendants were to supply 4000 KVA to the plaintiffs but on account of non availability of power at Cuncolim Estate where the establishments of the plaintiffs was located for reasons beyond their control and for no fault on the part of the plaintiffs they were prevented from consuming the electricity as per the said agreement. The plaintiff-Company was able to avail of only 2050 KVA since the date of power supply was made available to them on 3-6-1997 and that too not for 24 hours of a day in a month. Despite of making representations to the Executive Engineer, about the non availability of the power, the plaintiffs were unable to operate one of the two furnaces installed at the Cuncolim Industrial Estate. It is further their case that the Executive Engineer had duly certified the above factual position in the Certificate dated 7-8-1997. Accordingly, the plaintiffs had approached the Chief Electrical Engineer with their grievance. Inspite of not being allowed to use the full contract demand, the plaintiffs were billed and were charged for certifying the demand though they actually used 2050 KVA. They further stated that by letter dated 9-10-1997, the Chief Electrical Engineer had confirmed that the plaintiff-Company was using only half of the contractual demand. It is further their case that there are two tariff systems, one is the flat rate system and the other is known as the two part tariff systems. It is further their case that a grievance should be read and construed in all respects in the provision of the Indian Electricity Act, 1910, and that the minimum demand charges can be levied and collected only when the licensee is ready to supply the contractual quantity and whenever the licensee is unable to supply, it would be illegal to make the consumer liable to pay for energy not consumable. It is further their case that despite of not being able to supply the energy as per the said agreement, they were billed for final demand charges without giving any deduction. It is further their case that they had filed a Writ Petition before this Court wherein the Central Excise had called for the Report from Department of Electricity about the availability of power who specified that only 54% of the power contracted to be made available was actually made available and granted and as such 46% deduction in excise duty was granted to the plaintiffs. It was further their case that the plaintiffs were entitled to recover from the defendants the excess amount collected from them as demand charges in respect of the monthly bills. In view of the said statement of the Government that they could supply only 46% of the contracted energy supply. The plaintiffs also contend that such deduction was given to similar industries at Kundai Industrial Estate. The plaintiffs accordingly sought for a decree directing the defendants to pay a sum of Rs.1,08,53,298/- being Rs.65,35,491/- towards refund of excess payments made from July, 1997 and Rs.43,17,807/- towards interest at 2% per month compounding monthly from the date of the respective excess payments until 15-9-2000 and further interest at the same rate from the date of the institution of the suit till actual payment.