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FA/582/2010 2/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 582 of 2010
=========================================================
NOOR
ALI DECEASED SINCE THROUGH JAYABEN NOOR ALI & 3 - Appellant(s)
Versus
PASCHIM
GUJARAT VIJ CO.LTD THROUGH DEPUTY ENGINEER - Defendant(s)
=========================================================
Appearance
:
MR
ADIL R MIRZA for
Appellant(s) : 1 - 4.
None for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 19/04/2010
ORAL
ORDER
1. The
present appeal arises from the judgment and decree dated 1st
September 2009 passed by the Principal Senior Civil Judge,
Khambhaliya in Special Civil Suit No. 2 of 1995.
2. The
appellants herein are the original opponents in the aforesaid Special
Civil Suit No. 2 of 1995 and opponent-company is the original
plaintiff. The facts which emerge from the record are that on 7th
April 1994 when the opponent-plaintiff visited the premises of the
appellant’s Ice factory for the purpose of inspection-checking, the
appellant was found committing theft of electricity by tempering with
the electricity meter and connected equipments. Hence, after
following the procedure and completing the formalities, a
supplementary bill for a sum Rs. 5,60,116.83 was raised by applying
prescribed A X B X C X D formula. Since the appellants did not
respond to the said supplementary bill and did not make payment,
above mentioned suit being Special Civil Suit No. 2 of 1995 came to
be filed. In response to the notices issued by the learned Trial
Court, the appellants-original opponents filed their reply and
opposed the suit. Learned Trial Court, framed bellow mentioned 7
issues:
Whether
the plaintiff is entitled to get relief as alleged in the plaint?
Whether
the plaintiff is entitled to recover suit amount as alleged?
Whether
the plaintiff is entitled to get interest ? If yes, at what rate?
Whether
their Civil Court has jurisdiction to try present suit?
Whether
the suit is barred by non-joinder and mis-joinder of necessary
parties?
Whether
the defendants prove that they are not responsible to pay suit
amount as alleged?
What
order and decree?
3. After
considering the oral and documentary evidence available on record,
the learned Trial Court concluded and replied the issue nos. 1 to 4
in affirmative and issue Nos. 5 and 6 in negative. The learned Trial
Court accepted the evidence of the opponent company and came to the
conclusion that the opponent company was entitled to receive the
payment of the supplementary bill and that therefore the learned
Trial Court passed the impugned judgment and decree directing the
appellants to pay Rs. 5,60,116.83 with interest at the rate of 9%.
Aggrieved by the said judgment and decree the appellants-opponents
are before this Court.
4. Mr.
Mirza learned advocate has appeared for the appellants and submitted
that the learned Trial Court has committed error in appreciating
deposition of the witnesses. He has submitted that the testing of the
meter was carried out in absence of the appellants and that therefore
the report ought not to have been relied upon. He has submitted that
even the documents pertaining to the checking and inspection process
do not bear signature of any independent witness and that therefore
the said document also could not have been relied upon. Mr. Mirza
learned advocate has also submitted that the impugned judgment and
decree is contrary to the evidence on record. Mr. Mirza has also
submitted that the establishment of the appellants is a seasonal
establishment and appellants had made several applications requesting
the opponent-company to consider the appellant’s establishment as
seasonal establishment. He has submitted that even the witness of the
opponent-company has admitted during his cross-examination that the
appellants had made applications for treating the appellant’s unit as
seasonal unit. He has submitted that the calculation sheet produced
by the opponent reflecting the details of the calculation quantifying
the amount for the supplementary bill suffered from apparent errors,
however learned Trial Court has failed to consider the said aspect.
Mr. Mirza learned advocate also attempted to raise contention about
the dispute regarding the working days shown in the calculation
sheet. Any other contention has not been raised.
5. So
far as the appellants’ contention about alleged error in calculation
is concerned, it deserves to be noted that after the appellants
received the supplementary bill at no point of time appellants had
raised any dispute and/or objection with regard to the supplementary
bill or with regard to the quantification of the amount or even with
regard to the application of A X B X C X D formula or even with
regard to any apparent calculation mistake in quantifying the bill
amount. Not only any dispute with regard to any of the aforesaid
issues was raised after the supplementary bill was issued, no dispute
was raised on any of the said disputes even until the suit came to be
filed,
The
appellants not only did not raise any objection with regard to the
supplementary bill, but the appellants also did not prefer any
proceeding e.g. appeal before the appellate authority and/or before
the Electricity Inspector with regard to the alleged error in the
supplementary bill or in connection with any of the issues which are
now being raised. Furthermore, such contentions were not effectively
raised and substantiated even before the learned Trial Court and now
the said issues are sought to be raised in this appeal. For the said
additional reason also the said contention cannot be accepted at this
stage.
6. So
far as the appellants’ contention that at the time of the
checking/inspection the squad did not obtain signature of any
independent witness on the checking report is concerned, it needs to
be noted that the opponent-company has produced on record the
Kabulatnama signed by one of the appellants. As regards
appellant’s contention that the appellant-opponent company had
applied for status of seasonal establishment and that therefore the
bill should have been raised treating the appellant as seasonal
concern. This is wholly misconceived contention and cannot be
accepted. A concern does not become a seasonal concern and does not
get such status merely by making application/s. There is no dispute
about the fact that the application/s was-were never entertained,
much less granted. The contention has to be noted only for rejecting
it. As regards the another misconceived contention viz. with regard
to alleged error in calculating the working days (as mentioned in the
calculation-sheet) it needs to be mentioned that after receipt of the
bill such dispute was never raised until the suit was filed. Further,
the appellant could not effectively press in service and/or
substantiate the said contention in view of the fact that such
contention was not even raised before the learned Trial Court and was
not incorporated in the written statement and no material was placed
on record before the learned Trial Court. When one of the appellants
had signed the Kabulatnama, it is not open to the appellant to cast
shadow on the checking report. Such dispute would slip into
insignificance after their own Kabulatnama.
So
far as the dispute that the meter testing was conducted in absence of
the appellants or their representatives is concerned, it deserves to
be noted that as per the prescribed procedure three intimations are
required to be given to the appellants to remain present at the time
of meter testing. Such intimations were given. However the appellants
preferred not to attend the meter testing process and chose to remain
absent. Ultimately the meter testing was conducted in absence of the
appellants. When a consumer (here the appellants) choose to remain
absent at the time of meter testing process despite intimations
having been given, it is not open to the consumer (here the
appellants) to raise any objection with regard to the procedure on
the ground of lack of opportunity and the learned Trial Court is
right and justified in not entertaining such objection or dispute and
in not finding any fault with the process of meter testing on the
ground that it was conducted in absence of the appellants. The
appellant cannot be permitted to take advantage, or rather
disadvantage, of its own conduct.
7. Besides
this, what is more important is that on the basis of the evidence on
record it emerges, and the learned Trial Court has rightly noticed
that at the time of checking the squad had detected that both the
seals applied to the body of the meter were in broken condition. The
checking squad also noticed that the seals were re-fixed after having
been opened and were applied by using some material like araldite.
The paper seals were also found tempered with.
The
appellant-opponent could not dispute the said evidence and in fact a
Kabulatnama of the appellants was placed on record before the
Court. In the facts and circumstances there was no reason for the
learned Trial Court to not to believe the said evidence.
8. On
perusal of the finding of the learned Trial Court it emerges that the
plaintiff-opponent company did establish before the Court that the
opponent-appellant had indulged in committing theft of electricity by
tempering the meter and connected equipments. Having reached such
conclusion, the learned Trial Court has decreed the suit in favour of
the opponent-company.
9. The
appellants have failed to make out any case to interfere with the
impugned judgment and decree and has also failed to successfully
assail the judgment and decree dated 1st September 2009
passed by the Principal Senior Civil Judge, Khambhaliya in Special
Civil Suit No. 2 of 1995.
10. The
appeal, therefore fails and the same is rejected.
(K.M.THAKER,J.)
Suresh*
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