V.K. Gupta, J.
1. Proportionate reduction in the Annual Minimum Guaranteed Revenue (AMGR) as claimed by the appellant is at the centre of controversy in this appeal filed by the appellant under clause 15 of the Letters Patent against the Judgment dated 3.3.1998 passed by the learned Single Judge of this court. Actually this appears to be a third round of litigation in succession, raher a third attempt by the appellant in its efforts to establish that it is entitled to claim the proportionate reduction in the payment of AMGR and the reasons for such claim, as advanced by the appellant is the eratic functioning of the machinery installed in its factory. The appellant had obtained the connection of electricity and the Schedule of AMGR as granted by the respondent in the agreement duly executed for this purpose with the Electricity Board was as under :
1st Year 56 KVA 2nd Year 100 KVA3rd Year 100 KVA 4th Year 100 KVA5th Year 100 KVA.
2. The appellant's contention was that since the machinery was not functioning properly, it could not consume electricity to the extent of the installed capacity and therefore, it was not liable to pay AMGR to the full extent mentioned in the aforesaid schedule and on this basis thus claimed proportionate reduction as per clause 16(3) of the agreement entered into between the appellant and the Electricity Board. Since Clause 16(3) is indeed of paramount importance for considering the basic question in this appeal, we reproduce the same which reads thus :
'If at any time the consumer(s) is prevented from receiving or using the electrical energy to be supplied under this agreement either in whole or in part owing to any strike, riots, insurrections, command of a civil or military authority, fire, explosions, act of God or any other causes beyond his/its/their control or if the Board is prevented from supplying or is unable to supply such electrical energy owing to all or any of the causes mentioned, then at the request of the consumer(s) the minimum charge payable by the consumer(s) may be reduced in proportion to the ability of the consumer(s) to take or the Board to supply such power, provided the consumer (s) no titles/notify the Board in writing within fifteen days of occurrence of any event as noted above with necessary detail to prove that the occurrence is preventing/has prevented the consumer(s) from receiving or using the full amount of contractual demand. The consumer(s) shall also keep the Board informed once in every fortnight of further development regarding the event. NO remission in the agreed minimum charge as mentioned in Schedule I hereof, will be considered if no such notice is received by the Board. Subject as aforesaid and inspite of any other event or circumstance the consumer(s) shall be liable to pay the minimum charge every year as mentioned in Schedule 1 hereof without any abatement or diminution of the amount whatever.'
3. Having failed initially to obtain the desired result from the learned single Judge in the earlier writ application filed by the appellant, an appeal was preferred by the appellant before the Division Bench of this court which vide judgment dated 4.8.97 while disposing of the appeal observed as under :--
'We are not expressing any view as to the effect of construction of Clause 16(3) of the Agreement in question. We are allowing the appeal, after dispensing with all formalities required to be observed in the appeal under the Rules of this court, like service of notice of appeal on the respondents as the learned advocate for the respondents has waived service of notice of appeal on behalf of all the respondents and filing of paperbooks and after taking into consideration the question of law and interpretation of all contract only to the extent that the respondents may consider the eligibility of the appellants petitioners to any relief in terms of Clause 16(3) of the agreement in view of existence of circumstances within the meaning of 'any other causes beyond his/its/their control'. The consideration, as directed, would be made only upon the petitioners paving to the West Bengal State Electricity Board a sum of rupees two lakhs on ad-hoc basis within four weeks from today'.
4. In compliance with the aforesaid direction contained in the aforesaid Division Bench judgment the respondent Board disposed of the appellant's representation by holding that the failure of the appellant's machinery toperform according to desired level could not be deemed to be a matter beyond the control of the appellant which could be considered to fall within the scope and purview of the expression 'any other causes beyond his/its/their control'. The representation accordingly was rejected by the respondent vide order dated 11.11.1997. The following part of this order needs to be reproduced since it deals with the question of the applicability of the aforesaid clause so as to determine the eligibility of the appellant (as to whether it would fall in the said clause or not).
'Upon careful consideration of the facts and circumstances of the case, it transpires that due to alleged defect in machineries, the consumer could not consume the energy. By any stretch of imagination this cannot be treated as condition beyond the control of the consumer. In the judgment dated 4.8.1997, the Hon'ble Division Bench was pleased to direct me to consider whether any relief can be granted to the writ petitioner in case there is any existence of the circumstances within the meaning of 'any other causes beyond his/its/their control'. Even after very sympathetic consideration I do not find any merit in the submission of the writ petitioner/company that alleged defects in the machine is the circumstances beyond the control of the consumer. Besides, there is no other ground for considering any relief to be granted to the writ petitioner in the matter of reduction of A.M.G.R. for the relevant year. It may not be out of score to point out that Board had to reserve energy equivalent to the contract demand for this consumer amd. Transformer and other equipment including the supply line are accordingly maintained which entails capital cost. It is , by now. a settled law that through AMGR such fixed cost of the Board are realised to some extent.'
5. Feeling once again aggrieved the appellant filed third writ application which as observed earlier was dismissed by the learned single Judge on 3.3.1998. It is against this judgment that we are hearing the present appeal and the application for stay.
6. Whether indeed the appellant can claim proportionate reduction on the ground that its machine was not functioning properly has to be judged and understood in the light of the expression 'any other causes beyond his/its/ their control'. To appreciate the true contours of this expression, and to understand its meaning by application of the maxim ejusdem generis one has to go back to the main text of clause (3) of Para 16 of the agreement to find out that the reduction proportionately in AMGR can be claimed by a consumer woing to either the consumer being prevented from consuming electricity or because of negligence or failure of the Board to supply the same. In this case we are not concerned at all with the second part since it is nobody's case that the Board neglected or failed to supply electricity at all or properly. The entire case of the appellant is built around the inability of the appellant to consume electricity, in other words the appellant being prevented from such consumption. The agreement says that the prevention of the appellant from consuming electricity so as to claim reduction in the payment of AMGR proportionally has to be because of any strike, riots. insurrections, command of a civil or military authority, fire, explosions, or act of God. After specifying these incidences the agreement goes on to say 'any other causes...' This expression therefore has to be read in conjunction with and by way of illustration of the earlier instances of the prevention ofthe consumer from consuming electricity. This expression cannot be read in isolation. The power of the Board in the same terms as that of a licensee to determine tarrif, including AMGR is derived from section 49 of the Electricity (Supply) Act, 1948. Section 49 reads as under :--
'Subject to the provisions of this Act of regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply, frame uniform tariffs.
(2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely :--
(a) the nature of the supply and the purpose for which it is required.
(b) the co-ordinated development of the supply and distribution of electricity within the most Slate in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensees;
(c) the simplification and standardisation of method and rates of charges for such supplies ;
(d) the extension and cheapening of supplies of electricity to sparely developed areas.
(3) Nothing in foreging provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.
(4) In fixing the tariff and terms and conditions for the supply of electricity. the Board shall not show undue preference to any person.'
7. It is in the exercise of the aforesaid power that the aforesaid conditions appearing at clause(3) of Para-16 of the agreement (supra) have been prescribed. We find that the learned single Judge as also the Board while rejecting the appellant's representation were correct in holding that the failure of the machinery to perform at the desired level cannot be an instance which may come within the ourview and scope of the expression' any other causes .....' particularly because such an instance cannot be said to be one beyond the control of the consumer. In the case of Bihar State Electricity Board. Patna v. M/S. Green Rubber Industries reported in : [1989]2SCR275 their Lordships were clearly of the view that supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is actually consumed or net. Their Lordships actually in that judgment were considering the reasonableness of the stipulation contained in Para 16(3) of the agreement. Following observations are apposite as far as the issue raised in this appeal is concerned :
'It is true that the agreement is in a standard form of contract. The standard clauses of this contract have been settled over the years and have been widely adopted because experience shows that they facilitate the supply of electric energy. Lord Diplock has observed. If fairness orreasonableness were relevant to, their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable'[ A Schoreder Music Publishing Co. Ltd. v. Macaulay (1974) 3 All ER 616 (624)]. In such contracts a standard form enables the supplier to say. ' If you want these goods or services at all. these are the only terms on which they are available. Take it or leave it.' It is a type of contract on which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract, which frequently contains many conditions is presented for acceptance and is not open to discussion. It is settled law that a person who singna a document which contains contractual terms is normally bound by them even though he has not read them, even though he is ignorant of the precise legal effect. In view of clause 4 having formed one of the stipulations in the contract along with others it cannot be said to be nudum pactum and the maxim nuduin pacturn ex quo non oritur actio does not apply. Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity and the installation has to be continued irrespective of whether the energy is consumed or not until the agreement comes to an end. Every contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavouring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with stipulation of minimum guaranteed charges cannot be held to be ultra vires on the ground that it is incompatible with statutory duty. Difference between this contractual element and the statutory duty have to be observed. A supply agreement to a consumer makes this relation with the Board mainly contractual, where the basis of supply is held to be statutory rather then contractual. In cases where such agreements are made the terms are supposed to have been negotiated between the consumer and the Board, and unless specifically assigned the agreement normally would have been affected the consumer with whom it is made, as was held in Norhern Ontario Power Co, Ltd. v. La Roche Mines Ltd. (1938) 3 All ER 755.'
8. The aforesaid judgment came to be noticed subsequently by the Supreme Court in the case of Andhra Steel Corporation Ltd. and Ors. v. Andhra Pradesh State Electricity Board, reported in : [1991]2SCR624 . where the aforesaid view once again came to be upheld by their Lordships of the Supreme Court.
9. The learned advocate appearing for the appellant then urged before us that the Division Bench in the Judgment dated 4-8-97 had actually returned a positive finding and expressed a definite and conclusive opinion that the failure of the machinery to perform at desired level would tall within the purview and scope of the expression 'any other cause...beyond control.' The argument is totally devoid of any force and is without any merit. A bare cursory look at the judgment of the Division Bench would leave on one in any doubt that no such finding was returned by the Division Bench nor was any opinion expressed with regard to the scope and purview of the aforesaid expression and as to whether the failure of the machinery to perform at thedesired level would or would not come within the meaning and scope of the expression. The Division Bench, without expressing any opinion had left the matter wide open for consideration by the Board to determine, with relation to the eligibility of the appellant, as to whether its case relating to the failure of the machinery could be considered to fait within the purview and scope of the aforesaid expression. The observation of the Division Bench that 'the respondents may consider the eligibility of the appellants...' clearly suggests that the question relating to the very eligibility itself was left to be decided by the Board. The Board very rightly and correctly following the Division Bench direction did consider such question qua the scope of the aforesaid expression and, again rightly and correctly came to the conclusion that the appellant's case did not fall within the purview of the said expression and therefore, the appellant not being eligible, was not entitled to proportionate reduction in the payment of AMGR.
10. We find ourselves in agreement with the view expressed by the learned single Judge. We do not find any merit in the appeal.
11. The appeal and the application for stay, being treated as on day's list are accordingly dismissed but without any order as to costs.
12. Let xerox certified copies of the order be given to the learned advocates appearing for the parties on usual undertakings.
S. Narayan, J.
13. I agree.
14. Appeal dismissed