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West Bengal State Electricity Board Vs. Bongaon Electric Supply Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 427 of 1972
Judge
Reported inAIR1975Cal137
ActsElectricity Act, 1910 - Sections 5(1) and 7
AppellantWest Bengal State Electricity Board
RespondentBongaon Electric Supply Co. Ltd.
Appellant AdvocateSomnath Chatterjee and ;Samir Kumar Mukherjee, Advs.
Respondent AdvocateSankardas Banerje, ;Milan Kumar Banerjee and ;Pashupati Nath Chundar, Advs.
Cases Referred(Kripa Sindhu Biswas v. Sudha Sindhu Biswas.
Excerpt:
- laik, j. 1. it is, i think, vital in an appeal of this kind marked at the beginning in dead earnest to attempt to escape from any tendency to compartmental acts, for the purposes of relevance. as the thing presents itself to me in its final analysis the point is quite short, though not intended to be a refresher course in history. 2. the west bengal state electricity board, shortly (the board) filed a suit in the second court of the subordinate judge, alipore. against the bongaon electric supply co. ltd., shortly (the company) for recovery of about a sum of rs. 3,66,000/- (rupees three lakhs and sixty-six thousand), which was dismissed, resulting in this appeal. 3. the plaint case was that the company was a licensee for the purpose of supplying energy on the strength of a licence granted.....
Judgment:

Laik, J.

1. It is, I think, vital in an appeal of this kind marked at the beginning in dead earnest to attempt to escape from any tendency to compartmental acts, for the purposes of relevance. As the thing presents itself to me in its final analysis the point is quite short, though not intended to be a refresher course in history.

2. The West Bengal State Electricity Board, shortly (the Board) filed a suit in the Second Court of the Subordinate Judge, Alipore. against the Bongaon Electric Supply Co. Ltd., shortly (the Company) for recovery of about a sum of Rs. 3,66,000/- (Rupees Three lakhs and Sixty-six thousand), which was dismissed, resulting in this appeal.

3. The plaint case was that the Company was a licensee for the purpose of supplying energy on the strength of a licence granted by the State Government. It was agreed that the electrical energy would be supplied provided the cost of service line was paid by the company. The service line was thereafter installed. The Plaintiff-Board supplied the electrical energy in terms of the agreement. The defendant-Company defaulted in payment of monthly electrical bills from the month of June, 1967 to May. 1968 for which the defendant-Company was liable to pay a sum of Rs. 2,88,9007- and odd to the plaintiff-Board. The Board claimed afurther sum of Rs. 15,640/- and odd as surcharge from the defendant-Company. It was also the case that the defendant-Company defaulted in payment of Rupees 61,000/- and odd as cost of installation of the service line. As the defendant-Company did not pay the suit was instituted on June 10, 1968, for recovery of the sums aforesaid. The Plaintiff at the beginning did not think that it would turn out as the kickback payments of the loan, though the human capacity for astonishment is only finite.

4. The defence of the defendant-Company in short was that they did not make any wilful default in payment of the monthly electrical bills. Their inability to make payment in time was due entirely to circumstances beyond their control on account of unfavourable agitation carried on by the consumers at Bongaon. The further defence of the defendant in the written statement, filed on February 6, 1969, that after the institution of the suit a notice under Section 5(1)(c) of the Indian Electricity Act, 1910, shortly, the Electricity Act was served on the defendant-Company by the State Government. In terms of the said notice the undertaking was delivered to the plaintiff Board on December 1, 1968 and accordingly the defendant-Company was no longer liable to pay anything. It was also stated that prior to the service of the said notice the State Government revoked the licence of the defendant-Company. One of the main defence of the Company was that the agreement was never executed by it out of its own free consent. There was allegation of force, undue influence and coercion, as the defendant had no other alternative than to submit to the demands of the plaintiff Board, however illegal and unreasonable they are. The Company's further defence was that the State Government by its conduct and action disabled the defendant Company from collecting the outstanding dues from the consumers. Now that the plaintiff Board as in possession of the undertaking, the defence was that the contract was discharged and the defendant-Company had no liability to pay anything.

5. Independently of the general history of the case, there are thus two circumstances. Two witnesses were examined on behalf of the plaintiff and one for the Defendant as if it was trying to shake hands with oneself.

6. P. W. 1 is an Assistant Engineer of the Board. He proved the case of the plaintiff and denied the defence allegation of fraud and undue influence. P. W. 2 is the Superintending Engineer of the Board. He also proved the plaint case.

7. The chief amount of evidence is the only witness on behalf of the defendant is Shri Bidyut Chatterjee, one of the Directors of the Company. He stated that the Company was compelled to execute the agreement under coercion. He further stated that the outstanding bills from 'our' consumers were handed over to the plaintiff Board for collection. He also stated that the plaintiff took responsibility to collect the bills from their consumers and the Company cannot collect as they had no locus standi. He stated that the total amount of the outstanding bills from the consumers was Rupees 3,76,000/-. He admitted that the Company stopped payment to the Board from June 1957 as the consumers stopped payment to them. He further admitted:

'We would have paid the amount if there was no agitation by the consumers'

as If all consumers were at its hammer and tongs. It was ending on a tame note.

He has to admit in cross-examination that there is no clause in the agreement regarding the stoppage of payment on account of agitation. Parenthetically it should be noted that he had to agree having testified under oath. He further stated:

'We have requested the Board to collect our outstanding bills from the consumers. Board accepted our proposal by giving circular to the public. We were not paying Rs. 300/- for instalment of service line from the date of agitation.

We have not paid the amount to the plaintiff because consumers did not make payment of dues to us.

We have filed papers to show that Board took responsibility to collect 3 lakhs 76 thousand from the consumers.' (Page 23, lines 22 to 32)

8. Thus it is seen that though his evidence is cacophony of noise and sterile talk the spirit of confession has loosened his tongues. His optimistic statements in other portion of the evidence does not mean that victory is complete. There are wide gaps and tangled threads in the cloth of his evidence. The Court must not decline to open its eyes fully.

9. Among the documentary evidence there were the licence, (pages 25 to 40) the agreement dated the 10th of June, 1963, (pages 55 to 66). Notifications regarding revocation of the licence dated the 4th and 11th of November, 1968, and tile Notification of purchasing the undertaking (pages 280 to 283) on which reliance was placed by both sides. The defendant-Company strongly relied on a notice Exhibit A (page 288) dated January 1969 (no definite date). It is an authority given by the Company to the Board to collect the outstanding dues from the consumers. Exhibit N series, namely, the letters and bills were also relied on by the parties.

10. The learned Subordinate Judge dismissed the suit. He recorded as a fact that 'the defendant did not contend that the agreement was vitiated by undue influence and coercion'. The point was not pressed before us at the time of argument.

11. The Court below noted twofold arguments of the defendant-Company. Firstly, as the plaintiff undertook to collect its outstanding dues from its consumers the defendant-Company had no further liability. The second was that after the sale and delivery of the undertaking by the defendant-Company to the plaintiff Board, the liability ceased.

12. Before the Court below the provisions of Section 202 of the Indian Contract Act and Section 115 of the Evidence Act were also placed.

13. The learned Subordinate Judge negatived the contention of the defendant for non-payment because of the agitation in the locality. He inter alia held that as per terms of the agreement being binding the defendant Company is liable to pay, whether there is any agitation or not.

14. But according to the learned Subordinate Judge the most important point for consideration was whether the defendant Company's liability existed after the undertaking was sold and delivered to the plaintiff. He considered Sections 4, 5 and 7 of the Electricity Act. According to him the powers and liabilities under the licence would absolutely cease after the Government revokes the licence under Section 5 of the Act. The learned Subordinate Judge was of the view that Section 7 of the Act supports his finding as under the said section it would vest in the purchaser free from debt or mortgage or similar obligation. According to him that by Section 5 read with Section 7 of the Act all the powers and liabilities of the licencees that is, of the defendant-Company, would automatically cease.

15. He accordingly came to the following findings. The effect of the revocation of the licence is that the liability of the defendant-Company absolutely ceases and they are liable not for any amount in dispute to the plaintiff. The effect of delivery of the undertaking under Section 7 to the plaintiff Board is that the obligation of the defendant-Company had been transferred to the plaintiff Board and the defendant company's liability also had been transferred to the purchaser.

16. The learned Subordinate Judge also found that the instant case also was governed by Section 202 of the Indian Contract Act. It was raised prominently in the judgment According to the learned Judge as the plaintiff took the undertaking to realise the dues from the consumers of the defendant-Company as agent the agency is irrevocable, and therefore the irrevocable agency cannot be terminated because the defendant company cannot collect its due from its old consumers. He relied on Exhibit A (paste 288) already noted. The trial Court also came to the conclusion that the plaintiff was estopped from claiming any dues from the defendant-Company on that basis.

17. Against the decree of the dismissal of the suit the plaintiff Board had preferred the instant appeal.

18. The main argument of the appellant centers round the interpretation of Sections 5, 6 and 7 of the Indian Electricity Act, 1910. I content myself with inviting the parties to study the relevant portions of the provisions which have been referred to again and again in the argument as follows:

'5. (1) Where the State Government revokes under Section 4, Sub-section (1), the license of a licensee, the following provisions shall have effect, namely:--

(a) the State Government shall serve a notice of revocation upon the licensee and shall fix a date on which the revocation shall take effect; and on and with effect from that date, or on and with effect from the date, if earlier, on which the undertaking of the licensee is sold to a purchaser in pursuance of any of the succeeding clauses or is delivered to a designated purchaser in pursuance of Sub-section (3), all the powers and liabilities of the licensee under this Act shall absolutely cease and determine;

(c) if the State Electricity Board is willing to purchase the undertaking, the State Government shall, by notice in writing, require the licensee to sell, and thereupon, the licensee shall sell the undertaking to the State Electricity Board;

(3) Where the State Government issues any notice under Sub-section (1) requiring the licensee to sell the undertaking, it may by such notice require the licensee to deliver, and thereupon the licensee shall deliver on a date specified in the notice the undertaking to the designated purchaser pending the determination and payment of the purchase price of the undertaking:

'6. (1) Where a licence has been granted to any person, not being a local authority, the State Electricity Board shall,--

(6) Where a notice exercising the option of purchasing the undertaking has been served upon the licensee under this section, the licensee shall deliver the undertaking to the State Electricity Board, the State Government or the local authority, as the case may be. on the expiration of the relevant period referred to in Sub-section (1) pending the determination and payment of the purchase price.

'7. Where an undertaking is sold under Section 5 or Section 6, then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under Sub-section (3) of Section 5 or under Sub-section (6) of Section 6, as the case may be, whichever is earlier-

(i) the undertaking shall vest in the purchaser or the intending purchaser, as the case may be, free from any debt, mortgage, or similar obligation of the licensee or attaching to the undertaking:

Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking;

(ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee:

Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the licensee shall cease to have further operation'.

19. On a close reading of the aforesaid provisions of the sections we are of opinion that the liability of the defendant-Company does not cease. I am content to read them as they should be read. I do not see any need to read them otherwise. The Court below omitted to notice the three types of liabilities namely, (1) liability under the Act, (2) liability under the license, and (3) liability under the agreement. It has already been pointed out that the learned Subordinate Judge found the defendant-Company was liable under the agreement. The learned Subordinate Judge omitted to follow in Section 5(1)(a) that the powers and the liabilities of the licensee under this Act (meaning the Electricity Act) shall absolutely cease and determine. The liability in the instant suit is not under the Electricity Act, 1910.

20. I now turn to consider Section 7 of the Act which should be closely scrutinised. Section 7(1) refers to inter alia that the undertaking shall vest in the purchaser free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking. In other words, if the licensee has incurred a debt or has mortgaged the undertaking or has created an obligation in relation to the undertaking those encumbrances would not be binding on the purchaser on whom the undertaking would vest. The provisoto Clause (i) would make it further clear when it provides that the said debt, mortgage or similar obligation would attach to the purchase-money in substitution for the undertaking.

21. Sub-clause (ii) of Section 7 quoted above which provision is at commanding height makes it clear that the rights, powers, authorities, duties and obligations of the licensee under his licence shall stand transferred to the purchaser. Mr. Sankardas Banerjee, learned Counsel, placed strong reliance on this Clause (ii). But this clause does not refer to the liabilities under the agreement. Mr. Somnath Chatterjee concedes that liability as a licensee of the defendant-Company would cease after the sale and delivery of the undertaking but the liability under the agreement would still remain.

22. If under Section 5 all liabilities of the Company would have absolutely ceased and determined (strongly argued by Mr. Banerjee on behalf of the defendant respondent-Company) there was no necessity of Section 7. It is hardly necessary to add that the area of the licensee's prerogative has been gradually eroded by the statute. It is a tribute to the weight of the dead hand of the provisions mentioned above. It did not cast any doubt on the content of the sections. It is not an artificial cohesion but a natural balance.

23. Sections 22, 22-A(3) and (4) and Sections 23 to 26 of the Indian Electricity Act, 1910. contemplate agreement between the licensee and its consumers. In the instant case it is seen that Clause 7 (iv) (b) of the licence (Ext. B) at page 29 of the paper-book indicates that the agreement between the licensee company and its consumer would remain binding, even after the lapse of the licence. Any other construction or view would open the way to easy defeat of the provisions of the statutes.

24. Mr. Chatterjee also relies on a recent decision of the Supreme Court in the case of U. P. Electric Supply Co. Ltd. v. R. K. Shukla, : (1969)IILLJ728SC . He submits that if Mr. Banerjee's argument was correct there would have been no necessity of retrenchment compensation as stated in paragraph 20 of the said report. Mr. Chatterjee also drew our attention that no suggestion was given to P. Ws. 1 and 2 in cross-examination about the clearance of liability of the defendant-Company.

25. Mr. Banerjee in his reply relied on a Bench decision of the Allahabad High Court in the case of Firm Kishore Chand v. Budaun Electric Supply Co Ltd. AIR 1944 All 66 at p. 73. According to Mr. Banerjee, liability under the Electricity Act includes the liability under the agreement. In our opinion there isa difference in the nature of the liability under the Act as distinguished from that under the agreement. Moreover in Section 5(1)(a) of the Act it would be noticed that the expression used is. 'powers and liabilities' as distinguished from the expression 'rights'. It is true that the licensee Company's power to disconnect the consumer's line for non-payment of its dues under Section 24 of the Act goes after the lapse of the licence but that was an additional power given to the licensee for recovery of its outstanding dues from the non-paying consumers. Right to recovery by suit is not taken away. The power under Section 24 cannot be equated with the terms of the agreement, if there is no liability in any form.

26. Mr. Banerjee also relied on Section 26 of another Act viz., the Electricity (Supply) Act, 1948 without noticing the proviso under the said Act. The whole of Section 26 with the proviso reads thus:

'26. Subject to the provisions of this Act, the Board shall, in respect of the whole State have all the powers and obligations of a licensee under the Indian Electricity Act, 1910 (IX of 1910), and this Act shall be deemed to be licence of the Board for the purpose of that Act:

Provided that nothing in Sections 3 to 11, Sub-sections (2) and (3) of Section 21 and Section 22, Sub-section (2) of Section 22-A and Sections 23 and 27 of that Act or in Clauses I to V, Clause VII and Clauses IX to XII of the Schedule to that Act relating to the duties and obligations of a licensee shall apply to the Board:

Provided futher that the provisions of Clause VI of the Schedule to that Act shall apply to the Board in respect to that area only where distribution-mains have been laid by the Board and the supply of energy through any of them has commenced. '

27. It should thus be noticed that Sections 3 to II of the Act, 1910 shall not apply to the Board. We are concerned to consider the actual language employed and it is beyond our province to enter into the region of speculation. New questions were posed and the old answers did not work. Still older answers, it is fair to say, were given a new hearing.

28. It should further be noticed that the present plaint was filed in June 1968, that is, before the revocation, and the taking over which were done after the suit, i.e., on the 1st of December, 1968. The cause of action arose for the suit before the revocation of the licence. A money decree has been prayed for, which cannot attach to the purchase price. It is not necessary to say more upon the point.

29. Exhibit A. namely, the Board's circular at page 288 of the paper-book, isa notice by the plaintiff Board to the consumers of the defendant-Company. The said notice dated January 1969 is in the following terms:--

'All consumers of the Bongaon Electric Supply undertaking are hereby informed that the Board has been authorised by the Bongaon Electric Supply Co. Ltd., the ex-licensee of the said undertaking in his behalf to collect the outstanding dues from its consumers. Accordingly the Board has arranged for acceptance of the payment of outstanding dues from the Consumers of the Bongaon Electric Supply Undertaking and such amounts will be received at the local office of the Board at Bongaon. Receipts will be issued by the Board for all such payments.

All the defaulting consumers may please check up their unpaid bills and may arrange for payment of the outstanding dues without delay. It is understood that the energy bill for consumption during the month of November, 1968 are being prepared by the ex-licensee and this will be preferred to the consumers delivery soon. It may be noted that payment of the energy bill for the consumption during November. 1968, will also be accepted by the Board at the local office of the Board at Bongaon.

In case of cheque payments the cheque is to be drawn in favour of 'West Bengal State Electricity Board.'

30. It clearly states that the Board has been 'authorised' by the defendant-Company to collect the outstanding dues from 'their' consumers. The plaintiff Board tried to help the defendant-Company. But on this it wants to take advantage of the principle of estoppel including promissory or equitable one because of the said agreement, which is not applicable. It is really an attempt to smoke out the truth. Utmost it is a case of qualified consent.

31. Even after Ext. A the letter, Exhibit N, dated July 2, 1969, quoted below from the Company to the Board also clinches the issue on this point.

'Registered with A/d.

2nd July, 1969.

The Superintending Engineer (Com.)

West Bengal State Electricity Board,

48/1, Diamond Harbour Road,

Calcutta--27.

Dear Sir.

Please refer to your letter No. AB12/ 10320 dated the 18th June, 1969.

In reply we should like to inform you that the original copies of the Domestic, Commercial and Amusement bill with lists of outstanding dues were sent to the consumers at Bongaon by post under certificate of posting and the original copies of the Industrial bills with lists of outstanding dues were sent to the consumers at Bongaon by registered post

The following bill copies along with the lists of outstanding dues were sent to your Bongaon office by registered post, particulars of the bills together with the dates when they were sent are given below.

16-1-69 IND/594 to IND/647

21-1-69 IND/648 to IND/691

24-1-69 IND/692 to IND/698

19-2-69 DOM/6360 to DOM/6510

The following bill copies in duplicate alone with the lists of outstanding dues were sent to you by registered post parcel particulars of the bills together with the dates when they were sent are given below:

5-2-69 IND/594 to IND/698

21-2-69 DOM/6360 to DOM/6571

12-3-69 DOM/6572 to DOM/6793

21-3-69 DOM/6794 to DOM/7110

31-3-69 AM/7111 to AM/7115 and

COM/7116 to COM/713

The total number of the bills sent is 885 out of which 780 are bills for domestic, commercial and amusement consumption and 105 are bills for industrial consumption. The total amount outstanding on account of these bills is Rs. 3,76,858.96.

We should be grateful if you would kindly confirm receipt of these bills at your offices mentioned above.

As regards your request to send the requisite number of receipt books to the Superintending Engineer, Krishnagar Circle, for the purpose of issuing receipts against collections made on our behalf, we would submit that the legal opinion obtained by you relates to collections in ordinary circumstances. You are well aware that so far as payment of charges for consumption of electricity is concerned such payment is endorsed in the bill itself which is then returned to the consumer and serves as a receipt. No separate receipt is granted. The counter-foil attached to the bills is detached and retained by the recovery office for record of payment. It is not therefore the practice to issue separate receipts for payments. As far as we are aware, this is the system followed by all electricity supply undertakings.

In the circumstances, we would request you to instruct your Bongaon Office to collect our bills and to endorse thereon receipt of the amounts mentioned therein. After such endorsement, the duly receipted bills may be returned to the consumers to be retained by them as formal receipts.

We need hardly say that we deeply appreciate the trouble you are taking to help us to collect our dues and we would only request you to instruct your local office at Bongaon to collect the outstanding dues expeditiously as we have been put to great difficulty on account of non-realisation of such dues.

Yours faithfully,

For the Bongaon Electric

Supply Co. Ltd,

N. C. Bose,

Director.'

32. The biggest plus of the letter is the last four paragraphs which amply make it clear that dues from the consumers have been accepted by the defendant-Company themselves as their own dues and they deeply appreciated the trouble that the Board took to help the defendant-Company to collect their dues on their behalf. Though they were grateful in their said letter, in the argument it seems to be otherwise. The defendant cannot recede from the submission made in this letter. It would act like a muffler on the defendant's non-stop mouth.

33. We can cut short the argument of the application of Section 202 of the Contract Act. How a case of irrevocable agency in the circumstances of this case appears, we fail to understand. It is not a case that the Court has reduced the contract to a vanishing point. nO attempt was also made by Mr. Banerjee to support the finding of the Court below on Section 202 of the Contract Act but he relies on promissory or equitable estoppel on Exhibit A which we have already dealt with. The Court wanted to know as to what amount the plaintiff Board had realised on the basis of the said circular, Exhibit A. The Additional Chief Engineer to the Board affirmed an affidavit and filed on the 17th of January 1974 stating that only a sum of Rs. 2,709-47 was realised on account of the Company's outstanding dues from the customers relating to the period prior to the revocation. It is further stated that the said amount is lying with the plaintiff appellant Board. He also stated in the said affidavit that the defendant respondent Company had and has full right and authority to realise the remaining outstanding bills from their consumers. These facts have not been controverted by the defendant Company, except the authority. We think that the Company have such authority, if there is no other bar.

34. Mr. Milan Banerjee, learned Junior to Mr. Sankardas Banerjee, then moves the application for amendment of the written-statement under the provisions of Order 6, Rule 17 of the Code of Civil Procedure. It has a limited relevance to the major question. However two new paragraphs being paragraphs 18-A and 18-B were sought to be inserted by way of amendment. They appear in paragraph 13 in the said application and are quoted below.-

18-A. The suit and the claims in the suit are not maintainable in the absenceof State of West Bengal which is a necessary party.

18-B. That by reason of the arbitration proceedings, including the pleadings of the parties therein, the records and evidence in the arbitration proceedings, the award made on 20th December 1972 and the judgment upon award dated 30th April, 1973; the plaintiff is not entitled to claim the sum of Rs. 58,000/- or the sum of Rs. 61,271.87 claimed in An-nexure 'B' to the plaint on account of alleged outstandings for the Bulk service line or any portion thereof. In any event the plaintiff has waived its claim, if any, or is barred by estoppel or res judicata or constructive res judicata or principles analogous thereto from claiming the said sum or any portion thereof by reason of the said arbitration proceedings, pleadings, records and evidence therein and the award and the judgment upon award.'

35. So far as paragraph 18-A is concerned it is a pure question of law but it was never argued. No issue was framed. So far as the statement of fact in 18-B is concerned, namely, to the effect that the plaintiff was not entitled to claim the sum of Rs. 58,000/- or the sum of Rs. 61,000/- and odd claimed in Annexure 'B' to the plaint by reason of the arbitration proceedings mentioned there, the defendant-Company applicant wants the pleadings in the arbitration proceedings to go into the pleadings in this suit which is not permissible. Mr. Chatterjee further points out that in paragraphs 3 and 7 (a) of the application itself it would appear that the claimant claimed the sum of Rs. 1,42,000/-before the Arbitrator and not Rupees 2,00,000/- (2 lacs). In other words, the sum of Rs. 58,000/- which is the claim in Annexure 'B' to the plaint was never before the Arbitrator.

36. It is thus not difficult to find out where the fact ends and the fiction begins. The application for amendment therefore has no substance. Reference to the following decisions by Mr. Milan Banerjee appears therefore to be not just on the point merely academic. Even then we deal with the same to test the proposition of law and because passages at arms took place between the counsel.

37. The first case cited by him is a decision of the Supreme Court in the case of B. R. Sinha v. State of M. P., : [1969]3SCR955 . In this case the amendment was allowed in the trial Court and reversed in the High Court but the Supreme Court allowed the amendment. The facts upon which the said decision is based are distinguishable from the facts of the instant case. Paragraphs 8 and 9 in the said decision would make it clear that it was only a case of misdescription which was allowed to be amended.

38. The second decision namely, A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation is reported in : [1966]1SCR796 . It would appear in this decision that the issue as to maintainability of the suit was not pressed in the trial Court but the High Court allowed .the same. Thereafter the leave to amend the plaint was refused. There was an appeal to the Supreme Court and the same was allowed by the majority. Direction to amend was given. But here again it was a suit only for a declaration and not a money claim. The prayer for a specific sum of Rs. 68,000/- on the same materials already on the record was allowed to be amended, which is not the case here. Moreover, it was an amendment of the plaint and not the written-statement. There is some difference regarding the amendment of the two.

39. The third decision cited by Mr. Banerjee on this point is a decision of the Allahabad High Court in the case of Niranjanlal v. Ram Kali. : AIR1950All396 . This is again on the footing of an intervening Act -- a subsequent event relating to the definition of accommodation. It was a change in law and the party was entitled to file a written statement which is not the case here.

40. The fourth decision was a decision of the Privy Council, reported in AIR 1937 PC 42 at p. 45, Mahant Ram-dhan Puri v. Chaudhury Lachmi Narain. The High Court allowed the amendment of the plaint and an additional issue was framed. In the instant case the facts are quite different. It is a case of additional written-statement and both cannot be placed in the same scale.

41. The fifth decision cited by Mr. Banerjee was a decision of the Federal Court in the case of Secretary of State v. I. M. Lall, reported in AIR 1945 FC 47 (at page 59). Spens, C. J.. allowed the amendment of the plaint for realising damages. It was only a declaratory suit. It was held to be not maintainable because according to the learned Chief Justice, damages were the proper remedy. In this ''exceptional case', amendment for the relief for damages was allowed 'to secure justice'. Moreover the case went up to the Privy Council reported in 75 Ind App 225 = (AIR 1948 PC 121 at p. 127). The remand order passed by the Federal Court after allowing the amendment was set aside by the Privy Council and accordingly the principle so far as the amendment of the pleadings is concerned reported in the aforesaid decisions is no longer an authority for the said proposition though I must say that there was no direct reference by the Privy Council to the amendment (see paragraphs 23 and 25 of the AIR). The decision was alsodissented from by the Supreme Court in : (1959)ILLJ167SC .

42. The next decision cited by Mr. Banerjee is in the case of Rajammal v. Kannammal, : AIR1950Mad695 . In my view though this case helps the applicant to a certain extent, it relates to an important question of law relating to un-chastity and not to facts at all. The Madras High Court did not decide the said complicated question in a Civil revision proceeding because an appeal was then pending before the learned District Judge. In the instant case not only no question of law is involved on the second paragraph of the amendment, but the set up is different.

43. The seventh and the last case cited by Mr. Milan Banerjee on the point is a Single Bench decision of this Court in the case of Bengal Jute Mills v. Jewraj Heeralal, AIR 1943 Cal 13 (15). An amendment was allowed when the suit was pending before the trial Court which is not so here. The observations of the learned Judge that the Court should be liberal in the case of amendment of the written-statement is according to us, stated, for the purpose of securing justice in the particular facts of that case. The decisions therefore do not support the lop-sided view of Mr. Banerjee. We certainly do not seem to have accepted the proposition that a single Judge, attempting to thread his way through a labyrinth, reached the extreme of obfuscation.

44. The application for amendment of the written-statement should also be rejected on the ground of unreasonable delay. It was made for the first time at the appellate stage. The Arbitrator's Award was pronounced on the 20th of Dec. 1972. The judgment was made on the same on the 30th of April, 1973. The present appeal has been preferred on the 21st of March. 1972 and the present application was filed on the 20th of November, 1973. The alternative ground as suggested in the application that it was due to bona fide mistake does not appeal to us. We give a full-throated approval to Mr. Chatterjee who was in easy circumstance on this point. A pointless controversy ends.

45. On the ground of delay Mr Banerjee in reply also cited two other decisions. The first is a decision of a Single Bench of this Court reported in (1966) 70 Cal WN 1054, Bata Shoe Co. Ltd. v. National Properties Ltd. (at page 1058) in which he pointed out that seven years delay was condoned by the learned Judge. But that again was in a pending suit (which is not the case here) and after the award of 60 gold mohurs as costs. It has in my judgment no application either in strictness or by analogy.

46. The other decision he cited is a very recent decision of the Supreme Court in the case of U. P. State Electricity Board v. Official Liquidator, L. G. J E. D. Co., : [1974]1SCR142 (November issue). The case is distinguishable. The Board cannot have double enrichment. Section 83 of the Electricity (Supply) Act 1948. which is to the following effect:--

'Nothing in this Act shall be deemed to apply to a licensee on whom a notice under Section 5 or Section 7 of the Indian Electricity Act. 1910 (IX of 1910) has been served prior to the coming into force of the sections. Schedule and Table mentioned in Sub-section (3) of Section 1.'

cuts at the root of the argument of Mr. Banerjee and it underscored his helplessness. What promised to be a fire cracker, fizzled out like a damp squib.

47. In our view the averment which is necessary in an amendment application is not stated in this amendment petition. There was insufficiency of pleading. Rather the pleading was speculative. Lastly the amendment is not specific and definite as already state-ed. Before concluding I may point out that a Bench of this Court in which I was a party in a case reported in : AIR1973Cal496 (Kripa Sindhu Biswas v. Sudha Sindhu Biswas.) does not very much touch the point at issue and does not help Mr. Chatterjee. I may also observe that every venial error or defect (though there is none here) cannot be treated as a peg to hang a defence to defeat a just claim. Looking at all the circumstances it does not appear to us that any real doubt can arise as to the plaintiff's claim

48. For all the reasons aforesaid and piecing together the accounts given by the witnesses, documents and the arguments, we set aside the following findings of the trial Court.

(1) By the revocation of the licence, the liability of the defendant Company ceased and that the defendant is not liable to pay the disputed amount after the revocation and the delivery of the undertaking on the ground that the liability has been transferred to the purchaser.

(2) There was an irrevocable agency under Section 202 of the Contract Act which cannot be terminated.

(3) The plaintiff was estopped from claiming any dues from the defendant.

49. The judgment which is emotion-filled is set aside in part and the decree of the trial Court is modified. This appeal is allowed in part. In other words, the suit would be decreed for a sum less the sum of Rs. 2,709.47 (Rupees two thousand seven hundred nine and forty-seven paise) which amount the plaintiff had already admittedly realised from thedefendant's customers on the strength of the defendant's authority for the period prior to revocation, It is to the Company a white foam upon a dark and thunderous ocean.

50. We make it clear that the defendant respondent would be entitled to realise the remaining outstanding dues from their customers if not otherwise barred and not permissible in law.

51. The appellant would get from the respondent costs of this appeal, the hearing fee being assessed at thirty gold mohurs. The Defendant Respondent Company opposed the litigation only to meet an unmerciful end so far the quill-pep and the wig of this Court is concerned. It is a sick and sorry affair for the company, but we could not help it.

52. The oral prayer for stay of operation of the order is rejected.

N.C. Mukherji, J.

I agree.


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