FEROZ SETHANA INDUSTRIES Vs. M.P. ELECTRICITY BOARD

JUDGEMENT

(1.) The question requiring consideration of this Court in the present appeal filed under section 96, Civil Procedure Code against are judgment and decree dated 7-9-1979 passed Shri R.N. Hazari, Additional District Judge Civil Suit No. 90-A/77 is whether section (b) of the M.P. Government Electrical Undertakings (Dues Recovery) Amendment and Validation Act, 1976 (hereinafter referred to as 'the Amending Act') takes away the jurisdiction of a Civil Court to decide the suit under section 5 of the M.P. Government Electrical Undertakings (Dues Recovery) Act, 1961 (hereinafter referred to as 'the Act')

(2.) The facts of this case as appearing from the pleadings of the parties are that the appellant is a consume of electrical energy supplied by the respondents and had taken Service Connection No. 4212 from them. It appears that on 21-2-1969 a bill for a sum of Rs. 4818.47 P. was sent to the appellant by the respondent as the said amount was found due During the course of audit in connection with this bill a Civil Suit was filed which was the subject matter of Civil Suit No. 36 of 1970. The suit was however dismissed as infructuous on 12-1-1977. Thereafter a notice purporting to be under section 4 of the Act demanding a sum of Rs. 12,522.04 P. from the appellants was sent by the respondent Board for payment. The said demand was objected to by the appellant who by their letter date 16th May, 1977 undertook to deposit the amount under protest. In this very letter they also denied their liability in respect of the said amount and communicated that they wish to file a suit challenging the liability under section 5 of the Act. It is not in dispute that the amount was deposited on 16-5-1977 under protest. Thereafter, the present suit was filed under section 5 of the Act challenging their liability to make payment of the dues claimed. The respondents entered appearance and filed their written-statement. In the written-statement they admitted that they had served notice under section 4 of the Act demanding the amount but inspite of it pleaded that the suit was not maintainable because of section 3(b) of the Amending Act. Learned Addl. District Judge by the impugned judgment held that the suit in effect was a suit for recovery of the amount deposited under protest and was therefore barred under section 3(b) of the Amending Act. It was consequently held that the Court had no jurisdiction to decide the claim. That is bow the suit was dismissed.

(3.) Sec. 2(b) of the Act as originally enacted did not include minimum charges, minimum guarantee, special minimum guarantee and surcharge under an agreement or otherwise within the definition of 'dues' though it defined 'dues' as any sum payable to a government electrical undertaking on account of consumption of electric energy. Sec. 3 required the Government Electrical Undertaking to send a bill in the prescribed form claiming dues, if any, and authorise them to impose penalty if the dues were not paid by the date prescribed. Sec. 4 of the Act requires service of notice of demand in the prescribed form stating the name of the debtor, the amount payable as dues, penalty and costs etc. If on receipt of notice of the demand under section 4 of the Act the debtor denied his liability to pay the dues penalty or costs, he was entitled to file a suit for the purpose under section 5 of the Act after depositing with the prescribed authority the aggregate amount specified in the notice of demand under protest in writing. Such a suit is required to be filed in a Civil Court at any time within 6 months of the deposit. In case the amount under the notice of demand is not deposited the debtor is deemed to be in default in respect of the said amount and the same becomes recoverable as arrears of land revenue. It appears that acting on these provisions, the Government Electrical Undertakings started claiming minimum charges and minimum guarantee, special minimum guarantee and surcharge not being including within the definition of 'dues' under section 2(b) of the Act these amounts could not be recovered under the provisions of the Act. This resulted in passing the Amending Act (M.P. Act No. 31 of 1976) whereby the definition of 'dues' appearing in Sec. 2(b) of the Act was recasted to include not only the amount payable on account of consumption of energy supplied but also on account of minimum charges, minimum guarantee minimum special guarantee or surcharge under the agreement or otherwise. Sec. 3 of the Amending Act intended to do away with the effect of judicial pronouncements and validate pending recovery. Since clause (b) of this provision is the reason for the impugned judgment it would be useful to reproduce the entire section 3 for ready reference :