GOEL ENGINEER Vs. HARYANA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of facts recorded by both the Courts below holding that the defendant-board has successfully established its entitlement for recovery of the amount of Rs. 10,142.40. The plaintiff-appellant has filed the suit for permanent injunction with the averment that it has electricity connection of the factory situated at Hassanpur, Hodal Road with electricity meter No. MS/9. It was claimed that the plaintiff-appellant never committed any default in making payment of any bill at any time. It was further pleaded that the defendant-board through its S.D.O. raised a demand of Rs. 14,315 for the month of December 1978 against the plaintiff-appellant by adding a sum of Rs. 10,142.40. The aforementioned amount was added on the allegation that for the months of August 1976 to April 1977, the plaintiff-appellant has consumed more electricity than it was charged for. The defendant-board took the stand that the meter installed at the premises of the plaintiff-appellant firm was not working properly and on checking it was found that it was slow to the extent of 66.7% and accordingly, the additional demand of Rs. 10142.40 for the month of September 1976 to May 1977 was raised. Both the Courts below have returned categorical finding that the plaintiff-appellant has admitted its liability and had also made part payment out of the disputed amount. The basis of the finding is that when DW-2 Sh. A.K. Jain, S.D.O. of the Board appeared as a witness, he had deposed that plaintiff-appellant had agreed with the proposal for payment of charges assessed on average basis and there was no cross- examination of that witness in respect of his statement. DW-2 Sh. R. Dhawan, Assistant Engineer of the Board on the basis of the record of the meter checking had deposed that meter was running slow by 66.7%. The views of the learned Additional District Judge with regard to various findings read as under :-

(2.) MR . Alok Jain, learned counsel for the plaintiff-appellant has argued that the demand raised by the defendant-Board is absolutely unwarranted and illegal. The learned counsel has placed reliance on sub-section (6) of Section 26 of the Indian Electricity Act, 1910 (for brevity 'the Act') to argue that the question of defective meter has to be decided by an Electrical Inspector. The learned counsel has further submitted that according to sub- section (6) of Section 26 of the period for which demand could be raised on account of defective meter can not to exceed six months.

(3.) HAVING heard the learned counsel for the parties, I am of the considered view that the findings of facts recorded by both the Courts below make it evident that the plaintiff-appellant has agreed to the payment of the disputed bill on average basis and it had made partial payment also. On this vital issue, statement made by DW-2 Sh. A.K. Jain has been accepted by the plaintiff-appellant as there is no cross-examination conducted on this part of the statement made by him. The findings of facts have been recorded on that basis and would not call for interference under Section 100 of the Code. Even otherwise the Supreme Court in a catena of judgments has repeatedly held that the findings of facts cannot be touched by this Court under Section 100 unless it is concluded that those findings are without evidence or it is shown that a reasonable man would not be able to record those findings on the basis of available evidence. Such is not the situation in the instant case. Reference may be made to the cases of Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998) 3 SCC 331 : 1998(3) RCR(Civil) 6 (SC); Satya Gupta v. Brijesh Kumar, (1998) 6 SCC 423 : 1998(4) RCR(Civil) 37 (SC); Chandrabhagabai v. Ramakrishna and others, (1998) 6 SCC 207 : 1998(3) RCR(Civil) 391 (SC); Ram Prasad Rajak v. Nand Kumar and Bros. and another, 1998(2) R.C.R.(Rent) 249 : (1998) 6 SCC 748; M.G. Hegde and others v. Vasudev, (2000) 2 SCC 213, State of Rajasthan v. Harphool Singh (dead) through L.Rs., (2000) 5 SCC 652 : 2000(3) RCR(Civil) 191 (SC); M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244; Baidyanath Bhattacharya v. S. Karmakar, (2000) 9 SCC 505; Manorama Thampuratti v. C.K. Sujatha Thampuratti, (2000) 9 SCC 233; Chandragouda and another v. Shekharagouda S. Pittanagoudar, (2000) 10 SCC 617; Thimmaiah and others v. Ningamma and another, (2000) 7 SCC 409 : 2000(4) RCR(Civil) 609 (SC); Mohd. Abdul Muqtedar v. Sk. Fakruddin, (2000) 9 SCC 384; G. Thankamma Amma v. N. Raghava Kurup, (2000) 9 SCC 517; Ananta Kalappa Jaratakhane v. Krishtappa, (2000) 9 SCC 735; Kempaiah v. Doddanaraiah, (2000) 9 SCC 60; Mohd. Hadi Hussain v. Abdul Hamid Choudhary, (2000) 10 SCC 248 and Ajit Chopra v. Sadhu Ram, (2000) 1 SCC 114 : 1999(4) RCR(Civil) 635 (SC).