Saptarshi Dey Vs. the Calcutta Electric Supply Corporation Ltd. and ors. - Court Judgment

Excerpt:
[mohit s. shah; s.j. vazifdar, jj.] - the respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. the respondents claim to be the assignees of this mark. the mark was assigned from time to time. ultimately by a deed of assignment dated 14.9.2004, the registered trade mark label 555 was assigned to the respondents. the application for renewal of the mark is pending. the respondents have used the trade mark label 555 in conjunction with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. 1. the court:- the assessing officer of cesc made an order under s.126 of the electricity act, 2003 provisionally assessing the petitioners liability for the supply that was disconnected on january 13, 2011 alleging unauthorised use of electricity. cesc has refused to accept payment under protest for reconnection. it is evident from the order of provisional assessment at p.48 that it was issued against the petitioner. the petitioner offered to pay the provisionally assessed amount under protest so that he could create the licensees statutory obligation to reconnect the supply. by a letter dated january 28, 2011 the licensee returned the bank draft deposited by the petitioner on the grounds that the petitioner was unwilling to accept the order of provisional assessment. the question is whether citing reg.6.4 of the west bengal electricity regulatory commission (electricity supply code) regulations, 2007 the licensee could refuse to accept payment of the provisionally assessed amount on the grounds that the petitioner was unwilling to accept the order of provisional assessment. the provisions of sub-ss.(1) and (2) of s.126 of the electricity act, 2003 create statutory obligation of the assessing officer of a licensee to make the order of provisional assessment and serve it at once, and the provisions of sub-s.(3) thereof entitles the person aggrieved by the order to submit his objection, if any; and the person aggrieved can lodge an appeal under s.127 only from the order of final assessment. 2. the scheme of the provisions of ss.126 and 127 of the electricity act, 2003 is to be kept in mind while reading, interpreting and applying the provisions of the regulations. it is not the idea of the provisions of ss.126 and 127 that unless the person aggrieved by the order of provisional assessment pays the assessed amount accepting the order, payment is not to be accepted by the licensee. the aggrieved person makes the payment only for the purpose of reconnection of the supply. for reconnection he is not supposed to wait till the order of final assessment is made. if the provisions of s.126 and reg.6.4 are interpreted to say so, it will mean that the aggrieved person must remain without electricity until the order of final assessment is passed by the assessing officer. 3. in my opinion, such an interpretation is not consistent with the scheme of the provisions of ss.126 and 127. once the provisionally assessed amount is offered, the licensee is bound to accept it. its refusal to accept will amount to refusal on its part to reconnect the supply in the discharge of its statutory obligation. it cannot compel the person aggrieved by the order of provisional assessment to accept the order, if he wants reconnection on payment of the assessed amount. 4. here the supply was disconnected in exercise of power conferred by the provisions of reg.4.2, which is quoted below: 4.2. disconnection for theft or unauthorized use of electricity: 4.2.1 without prejudice to the provisions of the act, the licensee may disconnect or cause to be disconnected the supply to a person and/or premises immediately upon detection of theft or unauthorized use of electricity. regulation 6 of the regulations deals with reconnection of supply, and reg.6.3 provides as follows: 6.3 the supply of electricity to a consumer, supply to whom has been disconnected due to theft of electricity in terms of regulation 4.2.1, shall be reconnected by the licensee at the earliest and positively within forty-eight hours from the time of payment of the assessed amount. 5. regulation 6.4 relied on by the licensee is quoted below: 6.4 where a consumer served with the order of provisional assessment under regulation 5.2 or the order of final assessment under regulation 5.4 accepts such assessment and wishes to pay the assessed amount, he may submit an application to the licensee in the format as in annexure2 within two working days from the date of receipt of the order of provisional assessment or final assessment, as the case may be, and the licensee shall provide him/serve upon him bill(s) for the purpose within fortyeight hours of receipt of such application to enable the consumer to pay the amount provisionally or finally assessed. 6. i am of the view that the licensee was wrong in refusing to accept payment offered by the petitioner for creating the licensees obligation to reconnect the supply. the provisions of reg.6.3 clearly provide that a supply disconnected under reg.4.2.1 is to be reconneced by the licensee within 48 hours from the moment of payment of the assessed amount. ignoring this regulation, the licensee could not defeat the purpose of the payment by citing reg.6.4 which had no manner of application to the facts and circumstances of the case. 7. for these reasons, i dispose of the petition ordering as follows. if the provisionally assessed amount is paid by the petitioner, then the licensee shall accept it; and within 48 hours from the moment of payment it shall reconnect the supply that was disconnected on january 13, 2011. if the order of final assessment has not yet been made, then the petitioner will be free to submit his objection; and the assessing officer shall make the order of final assessment without any delay. no costs. certified xerox.

Judgment:
1. The Court:- The assessing officer of CESC made an order under s.126 of the Electricity Act, 2003 provisionally assessing the petitioners liability for the supply that was disconnected on January 13, 2011 alleging unauthorised use of electricity. CESC has refused to accept payment under protest for reconnection. It is evident from the order of provisional assessment at p.48 that it was issued against the petitioner. The petitioner offered to pay the provisionally assessed amount under protest so that he could create the licensees statutory obligation to reconnect the supply. By a letter dated January 28, 2011 the licensee returned the bank draft deposited by the petitioner on the grounds that the petitioner was unwilling to accept the order of provisional assessment. The question is whether citing reg.6.4 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 the licensee could refuse to accept payment of the provisionally assessed amount on the grounds that the petitioner was unwilling to accept the order of provisional assessment. The provisions of sub-ss.(1) and (2) of s.126 of the Electricity Act, 2003 create statutory obligation of the assessing officer of a licensee to make the order of provisional assessment and serve it at once, and the provisions of sub-s.(3) thereof entitles the person aggrieved by the order to submit his objection, if any; and the person aggrieved can lodge an appeal under s.127 only from the order of final assessment.

2. The scheme of the provisions of ss.126 and 127 of the Electricity Act, 2003 is to be kept in mind while reading, interpreting and applying the provisions of the regulations. It is not the idea of the provisions of ss.126 and 127 that unless the person aggrieved by the order of provisional assessment pays the assessed amount accepting the order, payment is not to be accepted by the licensee. The aggrieved person makes the payment only for the purpose of reconnection of the supply. For reconnection he is not supposed to wait till the order of final assessment is made. If the provisions of s.126 and reg.6.4 are interpreted to say so, it will mean that the aggrieved person must remain without electricity until the order of final assessment is passed by the assessing officer.

3. In my opinion, such an interpretation is not consistent with the scheme of the provisions of ss.126 and 127. Once the provisionally assessed amount is offered, the licensee is bound to accept it. Its refusal to accept will amount to refusal on its part to reconnect the supply in the discharge of its statutory obligation. It cannot compel the person aggrieved by the order of provisional assessment to accept the order, if he wants reconnection on payment of the assessed amount.

4. Here the supply was disconnected in exercise of power conferred by the provisions of reg.4.2, which is quoted below:

4.2. Disconnection for theft or unauthorized use of electricity:

4.2.1 Without prejudice to the provisions of the Act, the licensee may disconnect or cause to be disconnected the supply to a person and/or premises immediately upon detection of theft or unauthorized use of electricity. Regulation 6 of the regulations deals with reconnection of supply, and reg.6.3 provides as follows:

6.3 The supply of electricity to a consumer, supply to whom has been disconnected due to theft of electricity in terms of regulation 4.2.1, shall be reconnected by the licensee at the earliest and positively within forty-eight hours from the time of payment of the assessed amount.

5. Regulation 6.4 relied on by the licensee is quoted below:

6.4 Where a consumer served with the order of provisional assessment under regulation 5.2 or the order of final assessment under regulation 5.4 accepts such assessment and wishes to pay the assessed amount, he may submit an application to the licensee in the format as in Annexure2 within two working days from the date of receipt of the order of provisional assessment or final assessment, as the case may be, and the licensee shall provide him/serve upon him bill(s) for the purpose within fortyeight hours of receipt of such application to enable the consumer to pay the amount provisionally or finally assessed.

6. I am of the view that the licensee was wrong in refusing to accept payment offered by the petitioner for creating the licensees obligation to reconnect the supply. The provisions of reg.6.3 clearly provide that a supply disconnected under reg.4.2.1 is to be reconneced by the licensee within 48 hours from the moment of payment of the assessed amount. Ignoring this regulation, the licensee could not defeat the purpose of the payment by citing reg.6.4 which had no manner of application to the facts and circumstances of the case.

7. For these reasons, I dispose of the petition ordering as follows. If the provisionally assessed amount is paid by the petitioner, then the licensee shall accept it; and within 48 hours from the moment of payment it shall reconnect the supply that was disconnected on January 13, 2011. If the order of final assessment has not yet been made, then the petitioner will be free to submit his objection; and the assessing officer shall make the order of final assessment without any delay. No costs. Certified xerox.