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Kishorilal Maikulal Jais Vs. the Nagpur Electric Light and Power Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 107 of 1974
Judge
Reported inAIR1978Bom341; 1978MhLJ522
ActsLimitation Act, 1963 - Schedule - Articles 14 and 113; Indian Electricity Act, 1910
AppellantKishorilal Maikulal Jais
RespondentThe Nagpur Electric Light and Power Co. Ltd.
Appellant AdvocateV.Y. Pradhan, Adv.
Respondent AdvocateP.N. Chandurkar, Adv.
Excerpt:
the case dealt with a claim for compensation of electric energy for period from 1964 to 1967 - the suit was filed on 24.12.1969 - the agreement between the parties required the electric company, the opponent, to send bill within 15 days of taking reading of every month - the court held that the plaintiff would be entitled to recover energy charges from november 1966 only. - - a bill was then sent to the defendant claiming this amount as well as the amount which had become subsequently due on 4th dec. 6. it was urged for the petitioner that the electric energy like any other services would be liable to be paid when it is rendered......which connection was given. it appears that the company had not thereafter sent bills or took meter reading of the electricity consumed by the defendant at the aforesaid premises which electric energy was metered by the meter installed there until may 1967. at that time, it was observed that during 1964 to 1967 i.e. practically for 2 1/2 years, the defendant had consumed 978 units of electric energy costing thereby a sum of rupees 363.55 on account of electric energy and rs. 29.34 on account of surcharge. a bill was then sent to the defendant claiming this amount as well as the amount which had become subsequently due on 4th dec. 1967. the total demand then made was for rs. 441.32. as the defendant did not make that payment, the suit came to be instituted against the defendant to.....
Judgment:

1. This is a revision application against judgment and decree passed by the Small Causes Court, Nagpur in Small Cause Civil Suit No. 2911 of 1969. This was a suit to recover the electricity charges for the electricity consumed by the defendant, the petitioner before me, between the period from 25th Sept. 19.64 to 29th Sept. 1967.

2. According to the plaintiff, Nagpur Electric Light and Power Company Ltd., the defendant had applied for fixation of a meter and for electric energy on Sept. 15, 1964. He applied for reconnection to his premises which connection was given. It appears that the Company had not thereafter sent bills or took meter reading of the electricity consumed by the defendant at the aforesaid premises which electric energy was metered by the meter installed there until May 1967. At that time, it was observed that during 1964 to 1967 i.e. practically for 2 1/2 years, the defendant had consumed 978 Units of electric energy costing thereby a sum of Rupees 363.55 on account of electric energy and Rs. 29.34 on account of surcharge. A bill was then sent to the defendant claiming this amount as well as the amount which had become subsequently due on 4th Dec. 1967. The total demand then made was for Rs. 441.32. As the defendant did not make that payment, the suit came to be instituted against the defendant to recover Rs. 441.32, on Dec. 24, 1969.

3. The defendant denied having applied for supply of energy to the plaintiff-Company. He denied that the meter No. 2394 was installed at his premises. According to him, he was not liable to pay any amount and he had not consumed any electric energy. It was also contended that the claim appears to be for a period of consuming electric energy between 1964 to 1967 and the suit brought in 1969 was, therefore, barred by tune so far as the claim relating to the period before 3 years before the date of the suit is concerned.

4. Both, oral and documentary evidence was led on behalf of the parties and the trial Court held that it was the defendant who had applied for electric energy and for re-connection at his premises and had consumed the electricity up to 29th Sept. 1967. As regards the limitation, the learned Small Causes Judge held that the limitation would start running from the date when the demand is made and the bill is prepared. He, therefore, found that since the demand in this case was made for the first time in May 1967 the suit brought in Dec. 1969 was in time. He, therefore, decreed the suit. It is against this judgment and decree that the present revision application is filed.

5. The short question which was argued and urged before me was that the major part of the claim of the plaintiff was barred by time. I am inclined to agree with the contention that the claim for consumption of electric energy by the defendant from 25th Sept. 1964 cannot be claimed in this suit and that plaintiff would be only entitled to recover the amount for consumption of electric energy which can be for a period of three years prior to the date of suit. It appears that the electric connection was cut in Sept. 1967. Even then the plaintiff did not file a suit till 24th Dec. 1969 i.e. for a period of 2 years and 3 months.

6. It was urged for the petitioner that the electric energy like any other services would be liable to be paid when it is rendered. However, for the sake of convenience parties may agree that the bills in respect of services rendered would be preferred on a particular date, and that, then within particular time thereafter the amount would become payable. Though the learned trial Judge has referred to the part of the evidence of Dattatraya, Administrative Officer wherein he stated that the bill has to be prepared and is prepared every month, he does not seem to have considered the effect of it on the question of limitation. What Dattatraya stated before the court was, 'the bills were sent by post, plaintiff sends bills every month. Plaintiff's office committed a mistake in not sending the bills every month.'

7. Now, the supply of electricity, conditions of supply and the rates of the licensee and the consumer are governed by the Indian Electricity Act, 1910 and the Rules and Conditions framed by the Electric Company. On behalf of the plaintiff-Company, it was urged that the liability to pay the electricity charges is the statutory liability and that limitation would run from the date when the demand is made and not from the date when the electricity is supplied. I have not been pointed out any provision in the Indian Electricity Act which specifies a particular period or time when the bill is to be preferred and is to be paid. Normally and under the ordinary principles, charges for electricity supply to the consumer, would become payable the moment the supply is made. As is pointed out, the parties may agree to the date on which the demand would be made and bills would have to be paid.

8. Now, the agreements executed between the consumer and the licensee are according to the standard form prescribed by the Electric Company. This standard form also does not specify as to within how many days the electricity charges are to be paid. However, Rules coupled with the evidence indicate that such bills would be preferred and demand made every month and the consumer is liable to pay this amount as soon as the bill is sent to him. For instance, Clause 5 says that the reading of the meter or meters will be taken by the licensee once in each month, or at such other intervals or times as they shall think expedient. Therefore, under the agreement a reading is to be made of the electric energy consumed per month. It may be at other intervals also and that would be only where licensee considers it necessary or expedient to do so. The normal provision or rule, therefore, would be that the meter reading should be made every month. Part II, Note (iv) of the Rates, Rules and Conditions for the Supply of Electrical Energy of the Company also goes to show that meter readings will be taken at monthly intervals and after the reading is so taken a bill indicating the consumption for the period and payment which becomes due upon meter reading taking place on behalf of the Company is prepared. It then sends that bill due 'within 15 days after the readings are taken.'

9. According to the Company the meter was not read at all until May 1967. But it cannot be said that merely because the normal practice of reading the meter every month and billing the consumer for the electricity consumed during that month within 15 days from the date of reading of the meter not having been done in this case, the right to recover charges for consumption of electric energy by the Company did not accrue. As I pointed out, no specific statutory period for the commencement of the liability of consumer for payment of electric charges has been pointed out. Rates, Rules and Conditions for the Supply of Electrical Energy, as I indicated, suggest that the liability of payment for electric energy consumed would be once in a month after the meter reading is taken and within 15 days from it, bill is to be submitted. But the Company cannot say that it can choose to take meter reading at any time and that limitation would start on the date it takes meter reading and then sends bills. In other words, the Company cannot take the meter reading at its sweetwill. If the normal practice is to read the meter every month as indicated by Clause 5 of the Agreement and the Rule to which I have made a reference and are to be found in the Rules in fact, then it will mean that the bills for electric charges are payable every month and within 15 days after the meter reading is taken. In other words, after 15 days after the expiry of a month, a demand would be deemed to be made and the liability of the consumer to pay for the electric charges will begin. In other words, therefore, the cause of action will accrue to the Company every month but after 15 days after the expiry of the month for the energy consumed in the preceding month. If that is the starting point of the limitation for recovery of electric energy charges consumed by the consumer in every month, then it seems to me clear that in the present case the plaintiff company would be entitled to recover energy charges, since the suit was filed i.e. 24th Dec. 1969, from the month of Nov. 1966 and not from the period from 24th Sept. 1964 as has been done and claimed till Sept. 1967.

10. Mr. Chandurkar who appeared for the plaintiff-respondent referred to a decision reported in Gaya Municipality v. Sushila Devi 1972 Tax LR 2268 (Pat). Mr. Chandurkar also contended that the period of limitation under the new Limitation Act would be under Article 113. That obviously would not give the Electric Company a larger period of limitation than the one which is available to it under Article 14, which it was contended on behalf of the petitioner, was applicable. Article 14 relates to suits to recover the price of goods sold and delivered where there is no fixed period agreed between the parties for credit. Whether Article 14 or Article 113 applies, the period of limitation under both the Articles is the same namely, 3 years. The crucial question, however, which has to be decided is from what date the period of limitation begins. That is to be determined by reference to the entry in third column of the Schedule.

11. Under Article 14 the entry reads 'as from the date of the delivery of the goods' while under Article 113 it reads 'when the right to sue accrues'. Now the right to sue and the date of delivery of the goods may not and need not coincide. Under Article 113, it is only when the right to sue has arisen that the limitation would start to run. On the other hand, under Article 14 we have a specific date namely, the date of delivery of the goods. But Article 14 also requires and is applicable where 'no fixed period of credit is agreed upon'. In the present case there is no evidence to suggest that any period of credit as such is agreed upon and the period of credit in the circumstances of the case might become a variable factor. The delivery of the goods namely, electric energy is from day-today but the making of the bill would depend upon the meter reading taking place which may be on any one of the days in a month and not necessarily on the same date of every month and preparing the bill thereafter.

12. Taking, however, a very charitable view of the entire circumstances, as I pointed out, as the electric energy was supplied every month, the plaintiff would be entitled to make a bill within 15 days thereafter and would be entitled to recover energy charges for the whole of the preceding month after 15 days thereafter. That is how calculating a period of 3 years prior to the date of the institution of the suit, I am inclined to think that the plaintiff company would be entitled to recover charges for electric energy consumed from the period Nov. 1966.

13. Now, there is no material on record from which it would be possible to ascertain as to what was the electric energy consumed from the month of Nov. 1966 onwards. The only material which we have is the consolidated bill for electric energy between the period 25th Sept. 1964 to 25th April 1967 showing consumption of 978 units. That would be for a period of about 31 months and would indicate roughly consumption at 30 units per month. For the month of June 1967 we have also a meter reading which shows that the energy consumed in that month was 34 Units. The bill for the period between May and June 1967 for 34 Units has come to Rs. 13.75. On the basis of average it also works out at about the same figure for the period from 25-5-1964 to 26-4-1967. I am inclined to think that the plaintiff would be entitled to recover energy charges only for a period of additional 7 months at the rate of Rs. 13.75 besides charges for actual electric energy consumed subsequent to May 1967 in respect of which record is available at Exh. 21. That amount comes to Rs. 144.68. Plaintiff would be entitled to a decree for that amount instead of the amount awarded by the trial Court,

14. Revision application partly succeeds and the decree passed by the trial Court is partly modified and in place of figure 444.32, figure of Rs. 144.68 would be substituted. Though the revision application succeeds, the defendant would not be entitled to any costs.

15. Revision allowed.


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