Allowed

A.v.Thomas v. Kerala State Electricty Board.

Kerala HC5 Jul 2018WA/55/2017

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal, holding that while the appellant has a valid agreement with the Board, the third-party occupier must be pursued first for arrears incurred during his occupation before proceeding against the appellant.

What did the court decide?

The writ appeal was allowed, setting aside the Single Judge's judgment with directions to first proceed for recovery against the fourth respondent before proceeding against the appellant.

A.v.Thomas Vs Kerala State Electricty Board. — Cheque Dishonour | Kerala HC (2018)

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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 K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON

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THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940

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WA.No. 55 of 2017 IN WPC. 20690/2005

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APPELLANT(S)/PETITIONER:

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A.V.FRANCIS, ALUKKA HOUSE, KOTTOOLI, KOZHIKODE-16.

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BY ADV.SRI.JOSE JOSEPH

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RESPONDENT(S)/RESPONDENTS:

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1. KERALA STATE ELECTRICITY BOARD. REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN,

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TRIVANDRUM, PIN:695004.

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2. THE ASSISTANT EXECUTIVE ENGINEER,

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KERALA STATE ELECTRICITY BOARD, KOZHIKODE,

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PIN:673001.

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3. THE ASSISTANT ENGINEER

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ELECTRICAL SECTION, CENTRAL, KSEB,

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KOZHIKODE, PIN:673001.

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4. M.SHOUKATH ALI

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S/O T.S.MUHAMMED KHANI, BANK ROAD, CALICUT,

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PRESENTLY AT 'SHOBHIKA', H.O 752/ANDAVAR COMPLEX, CROSS COURT ROAD, GHANDHIPURAM, COIMBATORE-641012.

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5. THE SPECIAL DEPUTY TAHASILDAR

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(ARREAR COLLECTION), KOZHIKODE, PIN:673004.

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6. THE VILLAGE OFFICER

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KOTTOOLI, PIN:673004.

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R1-R3 ADV.SRI.RAJU JOSEPH (SR.)

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R1-R3 BY SRI.GEORGEKUTTY MATHEW, SC, KSEB

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R4 BY ADV.SRI.K.I.MAYANKUTTY MATHER

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R5-R6 BY SR.GOVERNMENT PLEADER SRI.RENIL ANTO

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.VINOD CHANDRAN & ASHOK MENON, JJ.

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W.A. No. 55 of 2017

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------------------------------------------Dated this the 5^th day of July, 2018

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J U D G M E N T

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Vinod Chandran, J.

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The appellant is before us aggrieved by the judgment of the learned Single Judge in the Writ Petition filed by him. The appellant entered into a partnership, which firm was constituted on 12.10.1994 in the name Mareena Enterprises for the purpose of carrying on hotel business. The firm is said to have obtained a premises on lease from one A.V.Francis, identically named as the appellant herein. The appellant is said to have then applied for an electric connection for running a hotel in the premises. Though it is contended that the hotel was run by the partnership firm, the application for supply of electricity was filed by the appellant in his individual capacity. A connection was drawn to the premises with consumer No.CB 6323.

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Subsequently, the appellant retired from the firm on 20.06.1998, evidenced by Ext.P1 retirement deed. He contends that

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by Ext.P2 letter dated 20.06.1998 the appellant informed the Assistant Engineer, K.S.E.Board of his intention to vacate the premises on his retirement from the firm and seeking transfer of the connection to the other two partners, who were still occupying the premises. The learned Counsel for the appellant also relies on Regulation 45(c) of the Conditions of Supply of Electrical Energy, as it existed at that point, to contend that a notice in writing was only required to be addressed and delivered by hand and acknowledgment obtained or sent by registered post. Reliance is also placed on Ext.P10 postal receipt to urge compliance of Regulation 45(c).

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The appellant vacated the premises and later by Ext.P3 of the year 2005, he was confronted with a notice of demand claiming electricity charges with surcharge, coming to a total of Rs.7,49,848/-. The appellant then made enquiries and was told that the arrears as demanded from the appellant was with respect to a bill raised against the 4^th respondent, who was in occupation of the premises, wherein Anti-Power Theft Squad (APTS) had conducted an inspection and found theft of electricity. The

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appellant collected the relevant details and has produced it along with a separate I.A. filed in the Writ Petition. Ext.P11 is the demand raised pursuant to the inspection of APTS, claiming a total amount of Rs.4,90,631/-. Ext.P11 was also addressed to the appellant. However, the appellant did not receive it. Obviously, the 4^th respondent received it, since he filed an appeal as seen from Ext.P12. Ext.P12 was rejected by Ext.P14. Ext.P14 order was specifically issued to the 4^th respondent.

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Again the 4^th respondent is said to have instituted a suit

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in which there was an interim order of stay of recovery of condition of payment of Rs.2,40,000/- in four installments. The 4^th respondent is said to have paid two installments and then defaulted it. Subsequently, the 4^th respondent approached this Court with a Writ Petition, as seen from Ext.P5. In Ext.P5, he admitted that the premises was owned by one A.V.Francis. The electric connection bearing Consumer No.CB 6323 was admitted to have been used by him and by virtue of the terms of the lease deed, he was liable to make good the electricity charges. Ext.P5 Writ Petition was disposed of by Ext.P6 judgment directing the 4^th respondent to file

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an appeal. An appeal was filed, which was rejected by Ext.P7. The 4^th respondent did not further pursue the matter. The Electricity Board seeking recovery, had attached the properties of the appellant herein, upon which, the appellant is before this Court.

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The learned Single Judge, though noticed the aforesaid facts, rejected the Writ Petition finding that the agreement of the Electricity Board was with the appellant and he cannot absolve himself from the liability to make good the arrears of electricity charges. The learned Senior Counsel appearing for the Board specifically points out that there can be no credence laid to the contention of the appellant with reference to Regulation 45(c). On facts it is pointed out that though the appellant is said to have addressed a written communication, as is seen from Ext.P2, which is dated 20.06.1998; the registration particulars evidenced from Ext.P10 indicates that it was sent only on 22.12.1998. Further, the Regulations are also pointed out and contended that Regulation 13(4)(a) mandates the occupier or tenant, who seeks disconnection, to apply to the Assistant Engineer or the Assistant Executive Engineer before vacation of the premises, giving seven days clear

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notice. Hence, Exts.P2 and P10 would not help the appellant, even if it was properly addressed and sent by registered post.

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The learned Counsel for the 4^th respondent was also heard. A counter-affidavit is filed by the 4^th respondent expressing his disinterest in controverting and traversing the various averments in the Writ Petition. The only contention is in so far as the company in which the petitioner was the Managing Director having occupied the premises only in the year 2001, when the APTS inspection was conducted. Ext.P3 demand is pointed out to contend that the demand is pertaining to the period from 10/2000 to 2/2005. The 4^th respondent has surrendered vacant possession in the year 2001 itself. There is also a contention that the 4^th respondent being only a Director of the company, cannot be made personally liable for the liabilities of the company. The learned Counsel would also contend before us that there was no demand served on the 4^th respondent and hence the demand as of now would be hit by limitation, in so far as the 4^th respondent is concerned.

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It is undisputed that that agreement was between the

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appellant and the K.S.E.Board. The appellant has a contention that

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he had validly issued a notice for disconnection of the supply, when he had vacated the premises. We are not on facts convinced that there was a notice issued even under Regulation 45(c). We also have to reject the contention on the basis of the provisions available under Regulation 13(4)(a), which was pointed out by the learned Senior Counsel.

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However, it is an admitted fact that the 4^th respondent was in occupation of the premises when there was an inspection and the demand was raised as per Ext.P11. The 4^th respondent had also filed two appeals, one at his own instance, which was rejected as per Ext.P14 and then after approaching this Court, which was rejected by Ext.P6 order. The 4^th respondent had also categorically admitted that he was in occupation, of the premises in which ATPS conducted an inspection, in the year 2001, as also his liability to make good the electricity charges, as per the lease deed, which permitted his occupation in the premises. The counter-affidavit also does not deny any of the proceedings taken against the bill issued at Ext.P11. The counter-affidavit of the 4^th respondent also does not indicate any payment having been made in excess of that

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made on orders of the civil court, which comes to Rs.1,20,000/-.

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The balance as demanded in Ext.P3 is Rs.3,67,973/-; which makes it evident that it is the arrears from the demand raised on the inspection by the APTS. There is no claim raised by the 4^th respondent that he had made good the amounts under Ext.P11 demand.

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We also have to take notice of the definition of 'consumer' and Regulation 32(a) as available in the Conditions of Supply of Electrical Energy, which are extracted hereunder:

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“Consumer” means the owner or occupier of the premises which are for the time being connected for supply of Electrical Energy with the Board's power system and in whose name the installation stands registered.”

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“32. Payment of dues:- (a) The dues shall be paid by the consumer on or before the due date shown in the slab card/provisional invoice card/adjustment invoice/ invoice.”

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Hence, even an occupier of the premises would be a person against

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whom proceedings can be taken for recovery of electrical charges. Regulation 32 regarding payment of dues also makes it explicit that the dues have to be paid by the consumer on or before the due

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date, on failure of which, the Board would be entitled to recover it from the consumer.

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We cannot countenance the contention of the 4^th respondent that the demand is now hit by limitation. The 4^th respondent had been before the appellate authority against the demand raised and he had failed to satisfy the same. He was issued with the demand, as early as when Ext.P11 was issued. The subsequent demand was not issued to him for reason of his whereabouts being not known by the Board, he having vacated the premises. We are of the opinion that this is a fit case where the 4^th respondent who admits to have occupied the premises and by the proceedings taken against the demand, admits to the liability fixed by the Board as confirmed by the appellate authorities, if any, cannot wriggle out of such liability. We, hence, are of the opinion that the Board should first proceed against the 4^th respondent and then if recovery is not possible, proceed against the appellant/petitioner with whom the Board has a valid agreement. It is made clear that the parties shall also be free to approach the Board for any one time settlement, if the same is existing as of now.

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In the event of the appellant satisfying the liability in a one time settlement or otherwise, definitely, the appellant would be left remedy to proceed against the 4^th respondent for the amounts so satisfied. The Writ Appeal is allowed, setting aside the judgment of the learned Single Judge with the above directions. No order as to costs.

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Sd/K. VINOD CHANDRAN Judge

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Sd/ASHOK MENON Judge

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dkr

A.v.Thomas v. Kerala State Electricty Board.

Case brief

What is this about?

What did the court decide?

A.v.Thomas v. Kerala State Electricty Board.

Case brief

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