Judgment:
S.N. Bhargava, J.
1. This is defendant's first appeal against the judgment and decree passed by Additional District Judge, Alwar,decreeing the suit of the plaintiff-respondent, and restraining the defendant by a permanent injunction from recovering an amount of Rs. 41,942.54 from the plaintiff.
2. According to the allegations contained in the plaint, the plaintiff used to run an oil mill in Ahvar by Diesel oil but since it was expensive, the plaintiff wanted to run the oil mill with the help of electrical energy and therefore, he applied for electric connection of 200 Horse Power (in short H.P.), on 30th July, 1960. After several requests and reminders, the defendant orally assured the plaintiff that a connection of 170 H.P. will be given to him and the plaintiff was asked to purchase the electric motors. In pursuance of the oral assurance given by the defendant, the plaintiff purchased the electric motors for 140 H.P. in April, 1961 vide Ex. 12 and Ex. 13 and got fitted electric motor of 120 H.P. The plaintiff informed the defendant vide letter dated 27-7-1961 (Ex. 14) that he had been sanctioned 170 H.P. electric connection and he had already fitted electric motor for 120 H.P. but the connection was not being released. Thereupon, the defendant obtained in writing from the plaintiff on 2-8-1961 (Ex. 3) and released electric connection of 120 H.P. To reproduce paragraphs 5 and 6 of Ex. 3, it will be profitable which will be necessary for further discussion-
'5. I agree to take the H.P. supply whenever available for industrial purpose and shall execute such agreement in that behalf as may be approved by you failure whereof on my part shall entitle you to disconnect me'.
6. 'I agree to guarantee the yearly minimum revenue of Rs. 51,738.77 (Rupees fifty one thousand seven hundred thirty eight and seventy seven naya paise) from this connection based upon 40% load factor and 90% contract demand which is given as 140 H.P. at the prevailing rate of 2 1/2 annas per unit for supply to consumers, having 25 BHP and above for their installation.'
3. By this document (Ex. 3), the plaintiff agreed to guarantee the yearly minimum revenue of Rs. 51,738.77 from this connection and since the connection was released of only 120 H.P., the plaintiff could not get his another electric motor of 20 H.P. fitted. The plaintiff also deposited a sum of Rs. 3,400/- on account of security. The defendant vide his letter dated 30th Nov. 1961 (Ex. 1) asked the plaintiff to furnish an additional security for a sum of Rs. 850/-, as the total security for 170 H.P. came to Rs. 4,250/- at the rate of Rs. 25A per H.P. In pursuance of this, the plaintiff furnished additional security for Rs. 850/- vide Ex. 2. The defendant vide letter dated 28-2-1962 (Ex. 15) informed the plaintiff that the supply of electrical energy will be restricted during peak load hours from 6 P.M. to 10 P.M. and further that if any consumer was found running the motors during restricted hours, his connection shall be liable for disconnection without any notice. So the plaintiff could not run his motors during the restricted hours on and from 1st March, 1962. On 13-9-1961, the defendant sent the first bill of consumption charges amounting to Rs. 5,608,02 for consumption of 11,960 units which was objected to by the plaintiff vide his letter dated 20-10-1961 (Ex. 4), stating therein that the actual consumption charges only came to Rs. 1,865.75 and further requesting that the bill may be corrected. The defendant corrected the bill and the plaintiff deposited the amount of Rs. 1865.75, the actual consumption charges. Thereafter, the plaintiff continued to deposit the electric bills according to actual consumption. However, after one year, the defendant vide its letter dated 28-9-1962 (Ex. 5) informed the plaintiff that as per agreement (Ex. 3), the plaintiff had promised to pay minimum revenue of Rs. 51,738.77 yearly but the total amount of revenue accrued up to August, 1962 was Rs. 34,606.25. The plaintiff was asked to pay the difference amounting to Rs. 17,132.52. This demand qf the defendant was illegal and the plaintiff made a representation to the defendant on 20-10-1962 (Ex. 6) but with no result. The then Chairman of the Rajasthan State Electricity Board ordered that with effect from April, 1963, new thermal rates may be charged and the plaintiff continued to pay the electricity bills on the basis of actual consumption according to the new thermal rates. The Assistant Engineer, Rajasthan State Electricity Board vide letter dated 22-11-1966 (Ex. 9), demanded payment of Rs. 41,942.54 being the difference of the amount already paid and the minimum guarantee as per agreement Ex. 3. The Executive Engineer also vide his letter dated 30-11-1966 (Ex. 10) asked the plaintiff to deposit the above amount. The plaintiff made representations but the Assistant Engineer disconnected the electric connection on 22-12-1966 which was got restored by the plaintiff on payment of Rs. 30/-as reconnection charges and thereafter, the present suit was filed on 17-1-1967, praying for a permanent injunction against the defendant, restraining it from realising the amount of Rs. 41,942,54 from the plaintiff and also to restrain the defendant from disconnecting the electric connection of the plaintiff.
4. The suit was contested by the defendant. The defendant filed a written statement, denying that any assurance was given by the defendant for releasing connection of 170 H.P. It was further asserted that since the plaintiff had installed electric motors only of 120 H.P., he was released connection of 120 H.P. Thereafter, the plaintiff never installed electric motor for another 20 H.P. till May, 1964, when a further connection of 20 H.P. was granted to him. Meanwhile, the additional connection of 5 H.P. was also given on 1-8-1962. It has further been submitted that since the plaintiff is bound by agreement (Ex. 3), he is liable to pay the minimum amount guaranteed in that document (Ex. 3), amounting to Rs. 51,738.77 per year.
5. As regards restricted hours, it was submitted that it was in accordance with para 5 of the agreement (Ex. 3).
6. On the pleadings of the parties, the trial court framed the following Issues :--
'1. Whether Shri M. R. Suini, the then Asstt. Engineer, Electricity Board, Alwar assured the plaintiff to sanction electric supply to the tune of 170 H.P. and if so, whether the Board is bound by such assurance?
2. Whether acceptance of security on 170 H.P. amounts to an assurance by the Board for supply of 170 H.P. load?
3. Whether plaintiff is not bound by its writing dated 2-8-1961 because the defendant did not give him supply of 170 H.P. load?
4. Whether writing dated 2-6-1961 is not binding on the plaintiff, being a unilateral deed?
5. Whether issue of bills based on actual consumption and paid by the plaintiff disentitle the defendant from realising the charges at the rate specified in the writing dt. 2-8-1961?
6. Whether introduction of a new thermal rate as pleaded in para 12 of the plaint disentitle the defendant from recovering charges at the rate specified in the writing dated 2-8-1961?
7. Whether energy could not be supplied to the plaintiff from 1-3-1962 onwards during 6 P.M. to 10 P.M. due to default in power house, If so, what is its effect on the present suit?
8. Whether the suit is barred by limitation?
9. Whether defendant is not entitled to recover Rs. 41,942.54?
10. To what relief the parties are entitled.'
7. The plaintiff Bajrang Lal examined himself as PW-1 and also examined Rustam as PW-2, and Ganga Lehri as PW-3 and produced some documentary evidence as well. The defendant did not adduce any evidence despite opportunity.
8. Learned trial court after hearing the parlies decreed the suit of the plaintiff. Hence, this appeal by the defendant, Rajasthan State Electricity Board.
9. Learned counsel for the appellant has very vehemently submitted that Ex. 3 should be treated as an agreement and the plaintiff is bound by the same. Since the plaintiff has reaped the fruits of the agreement i.e. he utilised the electric connection, he cannot come round and say that he is not bound by the agreement or that Ex. 3 does not amount to agreement. In this connection, he has placed reliance on Samrathmal v. Jugaldas, 1973 WLN 813 : (AIR 1974 Raj 104) and State of Rajasthan v. Balmukand, 1974 WLN 367. He has further submitted that the plaintiff is estopped to challenge that Ex. 3 is not an agreement. The plaintiff cannot be allowed to blow hot and cold in the same breath. He has mainly placed reliance on condition No. 10 of Annexure-VI of Indian Electricity Rules, 1956 (hereinafter referred to as the 'Rules of 1956'), which provides procedure for testing installation by the licensee. Conditions 10 (a) and 10(b) or Annexure-VI of the Rules of 1956 may be quoted hereunder :--
(a) 'Upon receipt of the test report the licensee shall nolify to the applicant the time und the day when the licensee's representative proposes to inspect and test the installation. It will then be the duly of the applicant to arrange that a representative of the wiring contractor employed by him is present at the inspection to give the licensee's representative any information that may be required by him concerning the installation.'
(b) 'No connection shall be made until the consumer's installation has been inspected and tested, by the licensee and found satisfactory. No eharge shall be made for the first test-made by the licensee but subsequent test due to faults, disclosed at the initial test shall be charged for in accordance with part III of these; conditions. Periodical test of the installation will also be undertaken by the licensee at rates that may be ascertained from his local office.'
10. The aforesaid condition provides that no connection shall be made until consumer's installation has been inspected and tested by the licensee and found satisfactory and since the plaintiff installed electric motors only of 120H.P., power connection of 120 H.P. was released to him but the plaintiff, though he might have purchased electric motors of more than 120 H.P. did not install nor informed the defendant about the testing report and therefore, the defendant could not inspect and test the installation and unless the same had been done, and found satisfactory, no connection could have been released. Hence, the plaintiff himself is at fault and defendant was not at fault in not releasing another 20 H.P. connection. Therefore, the defendant cannot be held responsible for not releasing additional 20 H.P. connection but it was the plaintiff alone who was responsible as he had not installed the machinery and got the test report submitted to the defendant. It appears that initially the plaintiff wanted to install electric motor of 140 H.P. but he found that 120H.P. motor was sufficient for the purpose and hence, he might not have installed additional motor of 20 H.P. The defendant had to make installations for 140 H.P. Therefore, Ex. 3 was executed by the plaintiff and amount of Rs. 51738.77 was guaranteed as the yearly minimum revenue from that electric connection and that since the defendant was not responsible for not giving connection of 140 H.P., the plaintiff, suit must have been dismissed by the trial court.
11. On the other hand, learned counsel for the respondent-plaintiff has submitted that the plaintiff initially wanted connection of 200 H.P. and the defendant orally assured him for 170 H.P. connection for which the security was also demanded by the defendant and the same was furnished. Ultimately, the defendant agreed for releasing 140 H.P. connection vide Ex. 3 but the defendant did not release connection for 140 H.P. but only for 120 H.P., with the result that the plaintiff could not utilise the full load of 140 H.P. which was granted to him and for which he had given guarantee as per Ex. 3. Since 140 H.P. connection was not released and the terms of the agreement were not followed, he was not bound by Ex. 3 nor was he liable to pay the minimum guarantee mentioned in it. He has further submitted that defendant has miserably failed in proving its case as he has not examined any witness nor produced any documents. Moreover, Ex. 3 cannot be termed as an agreement. It was only at best an offer by the plaintiff which was never accepted and, therefore, the plaintiff is not bound by the same. He has further submitted that before framing the issues the learned trial court has recorded the statement of the parties under Order 10, Rule 1 C.P.C. wherein Shri Virendra Kumar Gupta, AEN, R.S.E.B., Alwar had stated that the Raj as than State Electricity Board had not communicated approval to the plaintiff about his writing dated 2-8-1961 (Ex. 3). He further stated that there was no bi-laterally executed document, except the writing dated 2-8-1961. It has been submitted that in view of this submission on behalf of the defendant, it is amply proved that Ex. 3 cannot be treated as an agreement nor there is any other agreement in writing regarding connection released to the plaintiff. Annexure-VI to the Rules of 1956 gives a model form of draft conditions of supply but no agreement was executed unila'erally or bilaterally by the parties. The plaintiff hasproduced Ex. 12 and Ex, 13 bills which show that the plaintiff had purchased electric motors of 140 H.P. in April, 1961 and nothing prevented him from installing the same if power connection for 140 H.P. was released to him. The plaintiff had submitted a representation (Ex. 42) to the Chairman, Rajasthan State Electricity Board on 30th March, 1963 to which no reply was received by him. The plaintiff could not utilise the connection for all the 24 hours because of restricted hours, which caused loss to the plaintiff and, therefore also, he was not liable to pay the so-called guarantee amount and a proportionate deduction should have been made. In this connection, he has placed reliance on Man Industrial Corporation v. Rajasthan State Electricity Board, (1985)2 WLN 189 : (AIR 1986 Raj 137).
12. I have carefully considered the pleadings of the parties and the evidence produced by the plaintiff as also the judgment of the trial court and have given my thoughtful consideration.
13. There is no dispute between the parties that the defendant had agreed to release 140 H.P. power connection to the plaintiff. It is also admitted that the plaintiff installed (he electric motors of 120 H.P. only as is obvious vide Ex. 14, letter dated 27-7-1 % 1 written by the plaintiff to the defendant and, therefore, connection was released for 120 H.P. only. Thereafter, the plaintiff did not install any other electric motor till May, 1964 and when the plaintiff installed another electric motor of 20 H.P., a further connection of 20 H.P. was released on 21-5-1964.
14. Section 21 of the Electricity Act, 1910 (hereinafter referred to as the 'Act of 1910') provides for restrictions on licensee's controlling or interfering with use of energy, Whereas Rule 27 of the Rules of 1956 framed under the powers conferred by Section 37 of the Act of 1910, provides that without prejudice to the powers conferred by Section 21 on the State Government in this behalf, the model conditions of supply contained in Annexure-VI may, with such variations, as the circumstances of each case require, be adopted by the licensee for the purpose of Sub-section (2) of that section with the previoussanction of the State Government. Annexure-VI to the Rules of 1956 is binding on both the parties and the conditions mentioned therein have to be strictly observed. Condition No. 10(b) provides that no connection shall be made until the consumer's installation has been inspected and tested by the licensee and found satisfactory, It implies that it is for the consumer to instal his machinery or motor and then submit the test report to the licensee and, thereafter, if the consumer's installations are found satisfactory after inspection and testing, then alone, connection can be given. In the present case, the plaintiff did not install machinery of more than 120 H.P. till 1964 and, therefore, connection of 140 H.P. could not have been released and the defendant was not at fault in not releasing the connection of 140 H.P. It was plaintiff who had installed electric motor of 120 H.P. and got connection of 120 H.P. It was for the plaintiff to have installed another motor of 20 H.P. and submit test report of the same to the defendant - appellant who would have inspected the installations and after testing, having found the same satifactory, could have released another connection of 20 H.P. Thus, the defendant cannot be held responsible rather it was plaintiff who was responsible for not getting released 140 H.P. connection. Since the defendant had made installations for 140H.P., it was liable to be compensated on that basis and why the defendant should suffer for the mistake or non-action on the part of the palintiff. The defendant was ready with the installation of 140 H.P. and could have released 140 H.P. connection even on 2-8-1961. But since the plaintiff had installed machinery only of 120 H.P., the defendant released the connection for 120 H.P. only. It is true that the case had not been fought by the defendant in the right perspective. It has failed to produce any evidence and document but the plaintiff has to stand on his own legs and plaintiff cannot gain because of the lapses on the part of the defendant. It was for the plaintiff to have proved that it was the mistake of the defendant in not releasing the additional connection of 20 H.P., though he on his part had completed all the formalities. Since the plaintiff has miserably failed and in fact, there is no evidence, rather there is not even case of the plaintiff in the plaint that he had installed machinery of 140 H.P. and thedefendant had tailed to give electric connection of 140 H.P. in spile of fact that he had installed machinery of 140 H.P. The plaintiff is bound by his writing Ex. 3. It was on this assurance that defendant had made installation for 140 H.P. Why the defendant should suffer for the mistake of the plaintiff ?
15. Findings on Issue Nos. 1, 2, and 8 were not challenged before me.
16. As regards restricted hours, para 5 of Ex. 3 may be perused which says that 'I agree to take the H.T. supply whenever available'. Mere fact that the plaintiff was not allowed to utilise the electrical energy from 6 P.M. to 10 P.M. during peak load hours, does not debar the plaintiff from using the power for remaining 20 hours and the plaintiff could have very well run two shifts if he wanted to run-and this has not affected the working of the plaintiff. Moreover, there is no evidence on record that plaintiff used to run two shifts before restrictions were imposed during 6 P.M. to 10 P.M. and, therefore, it does not affect the case of the defendant in any case. The case of Man Industrial Corporation (AIR 1986 Ral 137) (supra) is of no avail to the plaintiff.
17. Thus, I am inclined to allow this appeal, set aside the judgment and decree dated 22-2-1974 passed by Additional District Judge, Alwar and dismiss the suit of the plaintiff, but looking to the facts and circumstances of the case, I leave the parties to bear their own costs.