Dhani Ram vs The Chairman, Haryana State Electricity Board

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for the recovery of Rs. 841 has been dismissed by both the Courts below a� being barred by time.

The Plaintiff filed the suit for the recovery of Rs. 841 wrongly recovered by the Defendant. In paragraph 4 of the plaint, it was pleaded that the Plaintiff had to deposit the sum of Rs. 841 on December 28, 1970, for the excess running of the meter due to the defect therein and that the said amount was deposited under compulsion. According to the plaint, the cause of action had arisen to the Plaintiff on December 28, 1970, the date of depositing the amount of Rs. 841 in the office of the Sub-Divisional Officer, Haryana State Electricity Board, Pehowa. In the written statement filed on behalf of the Defendant Board a preliminary objection was taken and it was pleaded that the suit was barred by time. On merits also, the allegations made in the plaint were controverted. On the pleadings of the parties, the trial Court framed the necessary issues. Issue No. 1 was to the effect whether the suit was time-barred? This issue was treated as a preliminary issue and the parties did not lead any evidence on this issue. According to the learned trial Court, the limitation for filing such a suit was six months from the date of the deposit u/s 5 of the Haryana Government Electrical Undertakings (Dues Recovery) Act, 1970, (hereinafter called the Act), whereas, admittedly, the suit was filed on October 11, 1972, which was beyond six months from the date of the deposit. As a result, his suit was dismissed as barred by time. In appeal, the learned Senior Subordinate Judge with enhanced appellate powers affirmed the said finding of the trial Court on the preliminary issue and, thus, maintained the decree dismissing the Plaintiff''s suit. Dissatisfied with the same, he has filed this second appeal in this Court.

The learned Counsel for the Appellant contended that Section 5 of the Act, was not applicable to this case because thereunder the suit contemplated was one where a notice of demand had been served for the dues u/s 4 on the debtor and the amount was deposited under protest, in writing, and the debtor contested his liability to pay the said dues. According to the learned Counsel, there was no evidence on the record to show that any demand notice, as provided u/s 4 of the Act, in the prescribed form, was ever issued to the Plaintiff. According to the Plaintiff, only the bill was issued to him on which the amount was deposited under protest. Thus, argued the learned Counsel, Section 5 of the Act was not at all applicable to the facts of this case and that in the instant case, the limitation to bring the suit was three years from the date of the deposit, under the Limitation Act.

After hearing the learned, counsel for the parties, I find force in the contention raised on behalf of the Appellant.

Section 5 of the Act, reads,--

Suit to challenge liability to payment.--(1) Where a notice of demand has been served of the debtor or his authorised agent u/s 4, he may if he denies his liability to pay the dues, penalty or costs or any part of any of them, and after depositing with the prescribed authority the aggregate amount specified in the notice of demand under protest in writing that he is not liable to pay the same, institute a suit for the refund of the dues or part, thereof so deposited.

(2) A suit referred to in sub-section (1) ma> be instituted in a Civil Court of competent jurisdiction at any time within six months from the date of deposit with the prescribed authority and subject to the result of such suit, the notice of demand shall be conclusive proof of the various dues, penalty and cost mentioned therein.

From the language of sub-section (1) of Section 5, it is quite evident that when a notice of demand has been served u/s 4 of the Act, only then a suit may be instituted in a civil Court within six months from the date of the deposit. Admittedly, in the present case, there is no evidence on the record to prove that any such demand notice was issued the Appellant. In the absence of any such evidence, it could not be held that the Plaintiff''s suit was barred u/s 5 of the Act. The approach of the Courts below in this behalf is wrong and illegal.

In this view of the matter, this appeal succeeds and is allowed with costs. The case is remanded to the trial Court for fresh decision on all the issues including the issue of limitation after allowing the parties to lead evidence. The parties have been directed to appear in the trial Court on September 5, 1984. The records of the case be sent back forthwith. Since the present suit was filed in the year 1972, it is directed that its disposal be expedited; preferably within six months.