Dismissed

H.E.Cardinal Mar Varkey Vithayathil v. the Official Liquidator

Kerala HC21 Mar 2016Co.Appeal/9/2006

Case brief

AI extract

What is this about?

This judgment dismissed two company appeals arising from a review petition regarding electricity charges. The High Court held that since the appellants failed to appeal the primary 2004 order, they could not indirectly challenge it through appeals against the subsequent review order, leading to the failure of both appeals.

What did the court decide?

Both Company Appeal Nos. 9 & 13 of 2006 were dismissed as the appellants were not legally justified in challenging the prior order indirectly.

H.E.Cardinal Mar Varkey Vithayathil Vs the Official… — Consumer Protection | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938

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Co.Appeal.No. 9 of 2006 ( )

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AGAINST THE ORDER IN R.P.188/2004 IN C.A.NO.383/2003 IN C.P.NO.20/1992

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APPELLANT(S)/REVIEW PETITIONER/APPLICANT:

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H.E.CARDINAL MAR VARKEY VITHAYATHIL

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ARCH BISHOP, ARCHDIOCESE OF ERNAKULAM-ANGAMALY, ARCH BISHOP'S HOUSE, KOCHI-682035, REP. BY HIS POWER OF ATTORNEY HOLDER TOMY JACOB KATTIKARAN.

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SUBSTITUTION OF APPELLANT

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H.E.CARDINAL MAR VARKEY VITHAYATHIL

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ARCH BISHOP, ARCHDIOCESE OF ERNAKULAM-ANGAMALY, ARCH BISHOP'S HOUSE, KOCHI-682035, REP. BY HIS POWER OF ATTORNEY HOLDER TOMY JACOB KATTIKARAN IS STRUCK OUT AND

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'H.E.MAR GEORGE ALANCHERRY

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THE PRESENT ARCH BISHOP OF ARCHDIOCESE OF ERNAKULAMANGAMALY', IS SUBSTITUTED IN THE CAUSE TITLE OF APPEAL AS PER AS PER ORDER DATED 26.2.13 IN I.A.NO.2678/2012

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BY ADV. SRI.JIMMY JOHN VELLANIKARAN

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RESPONDENT(S):RESPONDENTS/RESPONDENTS

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THE OFFICIAL LIQUIDATOR HIGH COURT OF KERALA,, ERNAKULAM.

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THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.

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THE ASSISTANT EXECUTIVE ENGINEER, THE KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, THRIKKAKKARA, ELECTRICAL SUB SECTION, VYTTILA

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THE ASSISTANT ENGINEER, THE KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION,THRIKKAKKARA.

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R2 TO R4 BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB R1 BY ADV. SRI.K.MONI

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THIS COMPANY APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2016 ALONG WITH CO.A. 13/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T. RAVIKUMAR &

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MARY JOSEPH, JJ.

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==========================

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Company Appeal Nos. 9 & 13 of 2006 ==========================

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Dated this the 21^st day of March, 2016

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JUDGMENT

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Ravikumar, J.

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Both the appeals arise out of the single order passed by the learned Company Judge in R.P.No.188 of 2004 in C.A.No.383 of 2003 in C.P.No.20 of 1992. The former appeal has been filed by the applicant/the review petitioner and the latter appeal has been preferred by respondents 2 to 4 in the C.A. as also in the Review Petition. A succinct narration of the facts necessary for the disposal of the appeals is as follows:-

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The appellant in the former appeal filed C.A.No.383 of

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2003 virtually seeking the following four prayers:-

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(i) to direct respondents 3 and 4 to grant

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CO.A.Nos.9 & 13/2006

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permanent three phase LT electric connection to the Mother Teresa Home in Building No.XIV/524 of Vazhakkala Village, forthwith;

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(ii) to declare that respondents 2 to 4 are not legally entitled to demand from the applicant the Minimum Guarantee Amount from 12/95 to 8/99 together with surcharge @ 24% per annum and arrears of energy charges amounting to Rs.15,437/- together with surcharge;

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(iii) to set aside Annexure A-8 order issued by the 3^rd respondent and order refund of Rs.37,619/remitted by the applicant, as evidenced by Annexure A-10, together with 18% interest; and

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(iv)to direct respondents 2 to 4 to refund Rs.15,437/- remitted by the applicant, as evidenced by Annexure A-4, and OYEC fee of Rs.10,000/- remitted as evidenced by Annexure A-11, together with 18% interest.

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3.On 23.2.2004, an order was passed in C.A.No.383/2003

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holding against the claim of the Board for arrears of minimum guarantee and surcharge thereon. Consequently, the prayer No.1

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in the said C.A was granted on condition that the applicant/appellant in the former appeal should pay the surcharges

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on the arrears of current charges for `15,437/- also and making it

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clear that the applicant would not be entitled to get reimbursement

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CO.A.Nos.9 & 13/2006 3

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from the Official Liquidator. Further, it was held therein that the petitioner/appellant in the former appeal was not bound to pay the

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arrears of minimum guarantee charges and surcharge thereon as claimed by the Board as per Ext.P8 order and Ext.P8 order to that effect was quashed. Both the parties viz., the applicants as also respondents 2 to 4 did not challenge the order dated 23.2.2004 in appeal. Thereafter, the applicant/the appellant in the former appeal filed R.P.No.188 of 2004 in C.A.No.383 of 2003 in C.P.No.20 of 1992. Virtually the prayers made in the C.A, as extracted earlier, was again sought for in review petition and they read thus:-

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(i) to direct respondents 3 and 4 to grant permanent three phase LT electric connection to the Mother Teresa Home in Building No.XIV/524 of Vazhakkala Village, forthwith;

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(ii) to declare that respondents 2 to 4 are not legally entitled to demand from the applicant the Minimum Guarantee Amount from 12/95 to 8/99 together with surcharge @ 24% per annum and arrears of energy charges amounting to Rs.15,437/- together with surcharge;

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CO.A.Nos.9 & 13/2006

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(iii) to set aside Annexure A-8 order issued by the 3^rd respondent and order refund of Rs.37,619/remitted by the applicant, as evidenced by Annexure A-10, together with 18% interest; and

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(iv) to direct respondents 2 to 4 to refund Rs.15,437/- remitted by the applicant, as evidenced by Annexure A-4, and OYEC fee of Rs.10,000/- remitted as evidenced by Annexure A-11, together with 18% interest.

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4.The said review petition was partly allowed as per the order dated 3.1.2006. As per the impugned order, the learned Judge took note of the fact that following the findings in paragraph 4 of the order dated 23.2.2004 in C.A.No.383/2003, no consequential relief was granted to the applicant/appellant in the former appeal. Thereupon, the review petition to that extent was reviewed and consequently, a direction was given to respondents

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2 to 4 to refund any amount paid by the applicant towards minimum guarantee to the Electricity Board on account of transfer of property of the company under liquidation, to the applicant-review petitioner. At the same time, as per the

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CO.A.Nos.9 & 13/2006 5

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impugned order, the review petition was dismissed in respect of all the other grounds holding specifically that such grounds were

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not available in an application for review. As noticed hereinbefore, the former appeal has been preferred by the applicant aggrieved by the order dated 3.1.2006 in the said review

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petition. Respondents 2 to 4 filed the latter appeal seeking to set aside the order dated 3.1.2006 passed by the learned Single Judge in R.P.No.188/2004 and also to reject the claim put forth by the applicant/appellant in the former appeal.

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5.We have heard the learned counsel for the appellants in both the appeals.

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6.We have already extracted the prayers made by the applicant/appellant in the former appeal in C.A.No.383 of 2003 as also in the review petition thereon viz., R.P.No.118 of 2004. A mere

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CO.A.Nos.9 & 13/2006

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perusal of the said prayers would undoubtedly reveal that by reiterating the prayers made in C.A.No.383 of 2003 in the review petition, the attempt on the part of the applicant/appellant in the former appeal was virtually, to get the order in C.A.No.383 of 2003 re-written. There can be little doubt with respect to the position that it is totally impermissible in invocation of the review jurisdiction. For the exercise of review jurisdiction, the party filing in the review petition has to make out a case bringing forth the error apparent on the face of the order/proceedings concerned. In such circumstances, we are of the considered view that the learned Single Judge has very rightly declined to entertain such prayers. Obviously, after considering the contentions and grounds raised in the review petition, the learned Single Judge found that the application for review has to be sustained only to the extent it pertains to grievance relating the failure to grant consequential reliefs based on the finding in paragraph 4 of the order dated 23.2.2004 in C.A.No.383 of 2003.

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CO.A.Nos.9 & 13/2006

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7.A perusal of paragraph 4 of the order in C.A.383/2003 dated 23.2.2004 would reveal that the learned Single Judge had earlier found thereunder that the applicant was entitled to get the benefit of the decision of a Division Bench in Meledam Saw Mills v. K.S.E.B

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[1998 (2) KLT 227] . It is pertinent to note that, as a matter of fact, it was based on the said decision that the claim of KSEB towards arrears of minimum guarantee due from the company which was wound up, was held unsustainable. In such circumstances, it was held that once the Board has received `10,000/- towards OYEC, the arrears of minimum guarantee due from the company under liquidation could not be demanded from the purchaser of the property or from the Official Liquidator. As stated earlier, it was based on such a finding that the claim of the Board for arrears of minimum guarantee and surcharge on the above amount was disallowed. The learned Judge found that based on the above findings in paragraph 4 of the order, no consequential relief was granted to the applicant/appellant in former appeal while passing the order dated 23.2.2004. There can be no doubt

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CO.A.Nos.9 & 13/2006 8

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with respect to the position that granting of such a relief which ought to have followed the finding in the earlier order dated 23.2.2004, but omitted to be granted, could be granted in exercise of review jurisdiction. In fact, that is what was granted by the learned Single Judge while entertaining review petition as per the impugned order. As noticed hereinbefore, the other prayers extracted above were nothing but prayers which were already considered and either rejected or allowed while passing the order in C.A.383/2003 vide order dated 23.2.2004. In such circumstances, the finding of the learned Single Judge is nothing but an inevitable one to be taken in the light of the settled position of law.

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8.Now, coming to the contentions of the appellants in the latter appeal, the question is whether they are justified in indirectly putting up a challenge against order dated 23.2.2004 in C.A.383/2003 while attempting to mount challenge against order dated 3.1.2006 in R.P.188/2004. It is to be noted that as in the case of the applicant in

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the former appeal, the appellants in the latter appeal too, have not filed any appeal against order dated 23.2.2004 in C.A.383/2004. A scanning of the grounds and prayers would reveal that no direct challenge has been mounted against the order dated 23.2.2004 in C.A.383/2003 by the appellants in the latter appeal. But a careful scanning of the contentions would reveal that the attempt is to mount an indirect challenge against order dated 23.2.2004. This has become very clear from the tenor of the arguments advanced on behalf of the said appellants. The learned counsel for the appellants in the latter appeal contended that the decision in Meledam Saw Mill' s case (supra) ought not to have been followed in granting relief to the applicant/appellant in the former appeal. The said contention is virtually founded on a Division Bench decision of this Court in Rajesh v. K.S.E.B [2006(1) ILR Ker. 598] . The learned counsel attempted to canvass the position that in the light of the decision in Rajesh 's case, the decision in Meledam Saw Mill 's case could no more be good law. We are afraid the said contention cannot be upheld

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CO.A.Nos.9 & 13/2006

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for more than one reason. A perusal of the decision in Rajesh 's case (supra) would reveal that the correctness of the decision in Meledam Saw Mill 's case (supra) was not virtually considered therein. In paragraph 8 thereunder, it was stated thus:-

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“We are of the view, the decision in Meledam Saw Mills' case, supra, would not apply to the facts of this case. The Division Bench was dealing with a situation prior to the coming into force of the Conditions of Supply of Electrical Energy, 1990. An identical question came up for consideration before the Division Bench of the Andhra Pradesh High Court in M/s.Thrimurthy Steel Industries v. A.P. State Electricity Board (1997(1) An.W.R.587) and the court interpreting similar provisions of the Conditions of Supply held that the consumer is liable to pay minimum charge even after the service is disconnected. The same is the view taken by the Division Bench of the Allahabad High Court in M/s.Pilibhit Ispat (Pvt) Ltd. v. U.P. State Electricity Board (AIR 1996 All. 329). Same view has been taken by the Karnataka High Court in Karnataka State Electricity Board v. D.P.Gurumoorthy (AIR 2000 Kant.214) and the Jharkand High Court in Rishi Cement Co.Ltd. v. Bihar State Electricity Board (AIR 2001 Jharkhand 64) . The Apex Court in Bihar State Electricity Board v. M/s.Green Rubber Industries and others (1990 (1) SCC 731) has also adopted the same view. On law and facts,

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we are in agreement with the Board that it can demand amount under the minimum guarantee agreement even after the disconnection of supply till the line becomes self remunerative. The reference is answered accordingly and the writ petition is dismissed.”

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Thus, it is obvious that the Division Bench had held that the decision in Meledam Saw Mill 's case (supra) was not applicable to the facts of the case involved in Rajesh 's case (supra). In such circumstances, the decision in Rajesh 's case (supra) could not be relied on to challenge the correctness or otherwise of the decision in Meledam Saw Mill 's case. Rajesh 's case was rendered on 20.1.2006. When the order in C.A.No.383/2003 was passed on 23.2.2004 and when the order in the review petition was rendered on 3.1.2006, the decision in Rajesh 's case was not there and needless to say that during the said relevant period, the decision in Meledam Saw Mill 's case was governing the field. We have already found that virtually in Rajesh 's case, nothing was stated about the correctness of the decision

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in Meledam Saw Mill 's case. If the appellants were actually

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aggrieved by the order dated 23.2.2004 in C.A.383/2003, they ought to have resorted to appropriate proceedings to challenge the said order. Having failed to do so and permitted that order to become final, the appellants in the latter appeal cannot be permitted to challenge the said order indirectly while mounting challenge against the order in R.P.No.188 of 2004. Therefore, what survives for consideration is whether the appellants in the latter appeal are justified in challenging the order in R.P.188 of 2004. As noticed hereinbefore, the review petition was allowed as per order dated 3.1.2006 only to the extent the earlier order denied the benefit which was bound to flow following the specific findings in paragraph 4 of the judgment in C.A.383/2003. When the appellants failed to put up a challenge against order dated 23.2.2004 in C.A.383/2003, they are not legally justified in challenging the relief granted in the light of the specific findings in paragraph 4 of the said order. The discussions as above would reveal that the appellants in both these appeals have virtually allowed the order dated 23.2.2004 to become final and in such

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circumstances, they cannot be permitted to put up challenge against the said order while making a challenge against order in R.P.188 of 2004. When the parties have failed to challenge order dated 23.2.2004 in C.A.383/2003, they cannot be permitted to challenge the said order while challenging the order in R.P.188/2004. The upshot of the above discussions is that both these appeals have to fail.

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Accordingly, they are dismissed.

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Sd/-

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C.T. RAVIKUMAR (JUDGE)

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Sd/MARY JOSEPH (JUDGE)

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spc/

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CO.A.Nos.9 & 13/2006