Mohit Steel Industries Pvt. Ltd. vs The Chief Electrical Engineer

A.R. Joshi, J.—Heard rival submissions on this First Appeal, preferred by the appellants/original plaintiffs. In this First Appeal, judgment and decree in Civil Suit No. 41/2007 is challenged by the original plaintiffs. The suit of the plaintiffs/appellants was dismissed and there were no orders as to costs. The said judgment and decree was passed by Ad hoc District Judge-1, Fast Track Court, Panaji on 30/04/2008.

Without going much into the details, suffice it to say that what was demanded from the present appellants/plaintiffs was electrical consumption charges by the appellants for the period 25/03/2002 to 1/04/2002 during which period the appellants had kept their industrial plant continuously closed with the departmental incoming Gang Operated Air Break switch of installation open. In fact, earlier the appellants received the bill for the electrical consumption for the months of March and April, 2002 and said bill was already paid. Subsequently, it was found out by the respondents/original defendants that more rebate was erroneously given for the period from 25/03/2002 to 1/04/2002 during which the industrial plant of the plaintiffs was continuously closed. As such, the revised bill was sent to the plaintiffs for a sum of Rs. 5,21,613/-, which was sent on or about 31/05/2002. This additional demand for the period of 7 days during the closure of the industrial plant was disputed and as such representations were made to the State Government and matter was taken at ministerial level. Various such representations were also made by other industrialists, who were also served with similar revised bills. The representations were pending till the year 2007 and ultimately the plaintiffs did not succeed in the revision and, as such, the amount of revised bill was demanded from the plaintiffs. This happened sometime in October, November, 2005. Demand was made to the plaintiffs and under protest the amount of Rs. 5,21,613/- was deposited with the defendants on 19/10/2005. Thereafter, sometimes in the year 2007 Writ Petition No. 287/2007 was filed by the plaintiffs before this Court challenging the said additional revised bill. Said Writ Petition was disposed off by this Court vide order dated 9/07/2007 allowing the plaintiffs to prefer a suit for recovery of the amount paid under the protest. Consequently, Civil Suit No. 41/2007 was filed by the plaintiffs on 27/07/2007. Further suffice it to say that during the pendency of the said suit additional demand was raised by the defendant No. 2 towards interest on the delayed payment charges and as such demand of Rs. 9,17,985/- was made. On this demand, an amount of Rs. 9,74,173/- was paid by the plaintiffs to the defendants under protest. Consequently, amendment was sought in the body of the plaint and also in the prayer clause for refund of said additionally paid amount of Rs. 9,74,173/- along with the earlier demanded amount of Rs. 5,21,613/-.

After filing of the written statement and after going through the pleadings of the parties following issues were framed by the trial Court, initially 11 issues and one more additional issue as issue No. 12. The said issues were answered accordingly by the trial Court as mentioned above.

After hearing rival submissions, the factual position has been accepted by both the learned Counsel as to issue Nos. 1 & 2 answered in the affirmative are not challenged by the present respondents/original defendants. It is also agreed by both the Counsel that only on the finding on issue No. 4 the entire suit of the plaintiffs failed inasmuch as the trial Court had held that the suit filed by the plaintiffs was barred by law of limitation. Now it is ascertained that only answer given to this issue is required to be scrutinized and to see whether the reasoning given by the trial Court is just and proper and in accordance with law.

For the above purpose, the reasoning given by the trial Court in the impugned judgment and decree in para No. 13 is perused. During the arguments before the trial Court, it was the submission on behalf of the plaintiffs/present appellants that the cause of action for recovery of the amount paid under protest starts on which day the amount was paid i.e. from 19/10/2005. As against this, the trial Court has held that the cause of action for filing the suit accrued in favour of the plaintiffs is on 31/05/2002 when the revised bill for Rs. 5,21,613/- was issued to the plaintiffs by the defendants. In fact, this is the date on which the cause of action will start for defendants for the recovery of the said amount and definitely not for the plaintiffs, who had not paid that amount even till 19/10/2005. In the considered opinion of this Court, the entire reasoning given by the trial Court as to period of limitation starts from the demand made on 31/05/2002 is erroneous inasmuch what the plaintiffs seek from the Court is recovery of the amount paid under protest and in fact that amount was paid on 19/10/2005 initially and subsequently during the pendency of the suit as detailed above. On this aspect, learned Counsel for the respondents submitted that in the initial suit there are no prayers for declaring the demand orders, for the revised bills being null and void and inspite of such prayers issue Nos. 1 & 2 were framed accordingly by the Court. The suit filed by the plaintiffs is for the recovery of the amounts paid under the protest and the entitlement of the plaintiffs revolves round the answer to issue No. 4 and it is erroneously answered in the affirmative in the impugned judgment and decree. In fact, considering the demand by the plaintiffs and even considering the demand raised by the defendants for the additional revised bill amounts, in the considered opinion of this Court definitely the suit filed by the plaintiffs is within the period of limitation and, as such, the answer to issue No. 4 which is framed to the effect "whether the defendants prove that the suit is barred by law of limitation" is required to be answered in the negative and in that event consequently the issue Nos. 3 & 12 are answered in the affirmative mentioning that the plaintiffs have proved their entitlement for the refund of respective amounts. Now, it is a question as to at what rate the plaintiffs are entitled for both the paid amounts under protest and as such for this purpose and in order to pass the final order and alter the decree accordingly, the matter is remanded back to the concerned trial Court with the directions that the answers to issue Nos. 3 & 12 are answered in the affirmative and answer to issue No. 4 is answered in the negative. Answers to the rest of the issues are maintained except the answer to issue No. 11. Accordingly, the trial Court is directed to answer the issue No. 11 and also ascertain as to at what rate of interest the plaintiffs are entitled to the refund of the amount paid under protest. Decree to be drawn accordingly.

Appeal is partly allowed. In the facts of the present appeal there are no orders as to costs. Records and proceedings be sent back to the learned trial Court for passing appropriate directions. Accordingly, the parties to appear before the trial Court on 11/08/2014 at 10.00 a.m.