IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13090 of 2009(E)
1. HI-TECH ELECTROTHERMICS PVT.LTD.,
... Petitioner
Vs
1. KERALA STTE ELECTRICITY BOARD,
... Respondent
2. SPECIAL OFFICER (REVENUE)
3. FULL TIME MEMBERS, KERALA STATE
4. THE TAHSILDAR, (REVENUE RECOVERY)
5. VILLAGE OFFICER, KADUNGALOOR VILLAGE,
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :SRI.P.P.THAJUDEEN, SC, K.S.E.B
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/05/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.13090 of 2009
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Dated, this the 28th day of May, 2009
J U D G M E N T
The petitioner, a company incorporated under the provisions
of the Companies Act, had established an industrial unit for the
manufacture of Calcium Carbide and Ferro Alloys. It is stated that
they were a High Tension Consumer of the respondent Board. The
unit functioned from 1995 till about December, 2004.
2. According to the petitioner, on account of the non
payment of the dues to the Board, supply was disconnected on
08/12/2004. Although there is a dispute that the power supply was
reconnected pursuant to the orders of this Court, I do not think it
necessary for this Court to pronounce on that issue. The petitioner
submits that they wanted to settle the liability, which led to the
disconnection of power supply. Bereft of all details, it is to be
stated that the amount in default represents the liability that the
petitioner was called upon to pay denying the benefit of Pre 92
concessional tariff. The claim of the petitioner for the benefit of Pre
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92 tariff was declined by this Court in Ext.P2 judgment, where,
however, it was directed that the interest liability of the petitioner
will be only to pay @ 12%. According to the petitioner, that issue is
pending consideration of the Apex Court.
3. It was in the meanwhile, that the petitioner wanted to
settle the liability, apparently for transferring the industrial estate to
another company. While so, the Board had also offered One Time
Settlement Scheme. It is stated that during pendency of the SLP
before the Apex Court, as the petitioner wanted to settle the
liability, the petitioner approached this Court and obtained Ext.P5
judgment enabling the petitioner to discharge the liability in
instalments in the manner as directed therein and subject to the
outcome of the SLP. According to the petitioner, in pursuance to
the directions in the judgment, they made payments and as on
31/12/2008, they made a total payment of Rs.1.21 crores.
4. Thereafter, the petitioner requested the respondents to
inform whether any further amount is still outstanding and the
request was replied by Ext.P8 informing that an amount of
Rs.30,92,246/- was still remaining due. The petitioner, thereafter
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filed Ext.P9 contending that in the light of Ext.P2 judgment directing
reduction of interest, the payment made by the petitioner is in
excess of what was actually due and that, at any rate, the claim in
Ext.P8 was unsustainable. Ext.P8 was called in question before this
Court in WPC No.1057/2009 and the Board was directed to consider
the representation made by the petitioner disputing the liability that
was sought to be fastened on them.
5. During this period, proposal of the petitioner to transfer
the industrial estate was pending consideration of the authorities.
The District Industries Centre, issued Ext.P12, requiring the
petitioner to produce certain documents including a No Due
Certificate issued by the respondent Board to consider the request
of the petitioner for transferring the industry. Meanwhile, the Board
also issued Ext.P13 dated 05/01/2009 reducing the interest. This
was also claimed by the petitioner, when the disputed question of
his liability was considered pursuant to Ext.P11. Finally, the Board
passed Ext.P14 quantifying petitioner’s liability at Rs.33,01,881/- as
on 30/04/2009. It is thereupon that this writ petition is filed.
6. Although, several contentions have been raised by the
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petitioner, the real controversy was boiled down to the claim of the
petitioner to have its liability quantified applying Ext.P2 judgment,
where a Division Bench of this Court has directed that the
petitioner’s liability for interest will stand reduced to 12%. Though
against that part of the directions in Ext.P2 judgment, the Board is
stated to have an SLP before the Apex Court, no order has been
passed by the Apex Court enabling the Board to deny the benefit of
Ext.P2 judgment to the petitioner. If that be so, the benefit of
Ext.P2 judgment cannot be denied for the only reason that an
appeal is pending.
7. Along with Ext.P14, the Board has also attached a
statement indicating the manner in which the liability has been
quantified. This statement shows that for the period up to
31/10/2008, the liability has been quantified up to 01/01/2009,
applying 18% & 15% interest. In the light of Ext.P2, such
quantification could have been made applying only 12% interest
and not 18% or 15% as done in Ext.P14. Consequently, the
quantification in Ext.P14 is erroneous, and the liability of the
petitioner has to be reworked as per Ext.P2 judgment. Once the
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liability is reworked as above, the amount, if any, paid by the
petitioner, will be subject to the result of the SLP pending before the
Apex Court. Thereafter, orders will have to be passed on the
application made by the petitioner for No Due Certificate.
Therefore, the writ petition is disposed of with the following
directions:-
Ext.P14 will stand set aside. The respondents are directed to pass
fresh orders in the matter taking into account Ext.P2 judgment in
WP(C) No.35016/2004 and applying 12% interest for the period up
to 01/01/2009, and thereafter at 6% as ordered in Ext.P14. Once
quantification is done as above, the respondents will be at liberty to
call upon the petitioner to discharge further liability, if any, and on
the petitioner making payment, necessary orders will be passed on
their application for No Due Certificate. Orders as above shall be
passed as expeditiously as possible, at any rate, within six weeks of
production of a copy of this judgment.
The writ petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg