NIRANJAN DAS Vs. ORISSA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) This is a second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the CPC).

(2.) The relevant facts briefly are that the appellant is the proprietor of a saw mill styled as "Bhanja Saw Mill". Under an agreement dated 11-2-1972 the respondent supplied electricity to the said saw mill of the appellant. The respondent filed Money Suit No. 1 of 1984 against the appellant for recovery of Rs. 13,979.83 paise towards balance energy charges and other charges up to April, 1983 and for recovery of Rs. 1,797.38 paise towards interest at the rate of 12 per cent per annum from 31-12-1982 till 3-1-1984. The case of the respondent in the suit was that the agreement for supply of electricity stood terminated from April, 1982 on expiry of six months from the notice dated 22-10-1982 of the appellant to terminate the agreement and the appellant was liable to energy charges up to April, 1983. The appellant contested the said suit and in his written-statement pleaded, inter alia, that the agreement for supply of electricity was for a period of five years and the appellant requested the respondent by letter dated 20-11-1976 to terminate the agreement and disconnect the power supply, but the respondent did not disconnect power supply and instead, continued to raise electricity bills on the appellant. The learned Subordinate Judge, Bhanjanagar, found that the respondent did not treat the said letter dated 20-11-1976 of the appellant marked as Ext. B as a notice of intention of the appellant to terminate the agreement on the ground that the appellant had availed supply of energy and deposited energy charges even after the said notice dated 20-11-1976. The learned Subordinate Judge further found that in the letters Exts. 3, 6, 9 and 11 there was nothing to show that the appellant had requested the Electricity Department either to restore the connection or that the appellant had admitted using the energy for the purpose of running his mill and it appeared that the appellant had given the said letters out of disgust and has also agreed out of disgust to pay the charges levied by the Electricity Department from time to time and has paid the instalments. The learned Subordinate Judge held that the agreement for supply of electricity remained in force for a period of six months from the letter dated 20-11-1976, i.e. up to 19-5- 1977, and the bills raised by the respondent beyond 19-5-1977 are void and the appellant was not liable to pay the said bills. The learned Subordinate Judge further held that the appellant had paid the energy charges up to April, 1975 and dismissed the suit of the respondent by his judgment and decree dated 8-4-1985.

(3.) The respondent filed Money Appeal No. 7 of 1985 in the Court of the learned Second Additional District Judge, Berhampur. The learned Second Additional District Judge after hearing the parties held that the agreement (Ext. 1) initially continued for a period of five years from 11 -2-1972 to 11-2-1977 and the letter dated 20-11- 1976 (Ext. B) of the appellant was prior to the expiry of the said period of five years and this could not have been accepted by the respondent in view of the provision in Clause 1 of the agreement that the agreement was to be for a period of five years. The learned Second Additional District Judge further held that from the letters {Exts. 3, 6, 9 and 11} of the appellant it is clear that the appellant has acknowledged and agreed to pay the dues towards energy charges to the respondent and he cannot later on say that he cannot pay the same as he is bound under Section 18 of the Limitation Act. The learned Second Additional District Judge also held that even after disconnection of power supply, the appellant was liable to minimum charges till termination of the agreement for supply of electricity. After discussing the decisions in the case of M/s. Watkins Mayor & Co. v. Jullundur Electric Supply Co. Ltd., AIR 1955 Punjab 133, and Andhra Pradesh State Electricity Board v. M/s. Krishivali Khandasari Sugar Industry, AIR 1984 Andh Pra 360, the learned Second Additional District Judge held that the finding of the learned Subordinate Judge that the agreement stood terminated pursuant to the letter dated 20-11 - 1976 (Ext.B) and remained in force till 19- 5-1977 is not correct and the real termination of the agreement took place only on expiry of six months from the second notice dated 22-10-1982 (Ext. 8) as claimed by the respondent. On the basis of the said findings, the learned Second Additional District Judge allowed the appeal and decreed the suit of the respondent by his judgment and decree dated 28-8-1986.