SHINGHAL, J.—The trial courts decree in his favour having been set aside by the judgment and decree of the lower appellate court dated September 27, 1960, the plaintiff has preferred the present appeal. 2. The plaintiff owned the "Chitra Talkies" in Pali, which, after a while, came to be known as the "Rajendra Talkies". He took an electric connection from the defendant company for the exhibition of films in Pali at the rate of annas 3 per unit because that was the maximum rate of supply for industrial concerns. He installed a one-phase rectifier in the cinema house and started exhibiting the films from August 18, 1950 onwards. The defendant company sent its bill for the months of August and September, 1950, at the rate of annas 3 per unit, and it was paid at that rate under a receipt dated October 6, 1950. The plaintiff pleaded that he installed the single-phase rectifier after consultation with the defendant company, but when the company found that he had made enough investment in installing it, it sent a letter to him (plaintiff) on September 20, 1950 intimating that it would charge at the rate of annas 3 per unit only if the plaintiff installed a three-phase rectifier, and that it would, otherwise, make the charge at the rate of annas 8 per unit for use of electric energy on the single-phase rectifier. The plaintiff pleaded that he was thus forced to pay for electric power at the rate of annas 8 per unit from October 9, 1950 to March, 1954 because he would otherwise have been put to a considerable loss, but that this payment was made under protest. Admitting that his claim for refund for the period October, 1950 to Fabruary, 1951 had become barred by time, the plaintiff prayed for the recovery of the extra payment made during the period March, 1951 to March, 1954, at the rate of annas 5 per unit, the ground for the claim being that the excess amount had been recovered against the contract and contrary to the law. The plaintiff appended a schedule with his plaint and prayed for a decree for Rs. 5,923/7/- with interest at 6 per cent per annum and costs. 3. The defendant denied the claim altogether. It pleaded that even though the plaintiff asked for the supply of power in his application (Ex. The plaintiff appended a schedule with his plaint and prayed for a decree for Rs. 5,923/7/- with interest at 6 per cent per annum and costs. 3. The defendant denied the claim altogether. It pleaded that even though the plaintiff asked for the supply of power in his application (Ex. A. 1) dated August 4, 1950, he installed a one-phase rectifier which only generated light and not power. The defendant also pleaded that it was entitled to charge at the rate of annas 8 per unit under its license for the supply of "light energy". Further, it pleaded that the plaintiff did not take its permission to install a single phase rectifier, that it did not enter into any agreement for the supply of energy at annas 3 per unit for use of energy by such a rectifier and that the plaintiffs was not an industrial concern. It was claimed that the defendant was entitled under the law to charge at the rate of annas 8 per unit for supply of energy of the kind used by the plaintiff in respect of his one phase rectifier and it was denied that the plaintiff had taken the approval of the defendant for the installation of the one-phase rectifier. It was pleaded that an agreement for the supply of motive power could only be effective in the case of a three phase supply. It was also pleaded that as the load of electric energy gets unbalanced in all circumstances when a one phase rectifier is used against a three phase supply system, the defendant was entitled to make the charge as for the supply of "light". It was thus the main line of defence that the defendant was entitled to charge at the rate of annas 8 per unit because the plaintiff had installed a one-phase rectifier whereas it should have placed a three-phase rectifier. It was also an important defence that "power" was not at all consumed in the plaintiffs cinema house, but that he only utilised the "light" which was chargeable at the rate of annas 8 per unit. It was denied that the payment at that rate by the plaintiff was made under protest and it was pleaded, on the other hand, that the plaintiff willingly went on paying at that rate. It was denied that the payment at that rate by the plaintiff was made under protest and it was pleaded, on the other hand, that the plaintiff willingly went on paying at that rate. A plea of acquiescence was also taken to deny the claim for repayment and it was stated that if the plaintiff had made any protest, the defendant would never have supplied energy at the rate of annas 3 per unit on an installation of a single phase rectifier and that the energy was supplied under the belief that the plaintiff was willing to make payment for it at the rate of annas 8 per unit. The plaintiff filed a replication denying the defence, but it is not necessary to refer to it in any detail. 4. The trial court framed a number of issues. All those issues which related to the plaintiffs plea of an agreement for the supply of electrical power at annas 3 per unit against the installation of a single phase rectifier, or to the plea that such an installation had been made with the agreement of the company, of to the claim that the plaintiff was entitled to the lower rate of payment because the supply was to an industrial concern, have not been pressed in this court and it is not necessary to refer to them. The other issues related to the questions whether the defendant was not legally entitled to charge more than annas 3 per unit for the supply made to the plaintiff, or whether the charge at the higher rate was illegal, or whether the plaintiff was estopped by acquiescence from making any such claim. The trial court gave its decision in favour of the plaintiff and decreed the suit on July 31, 1959. As that decree has been set aside on appeal and the suit dismissed by the impugned judgment of the District Judge of Pali, the plaintiff has preferred this second appeal. 5. It may be mentioned that the defendant has produced its license Ex. A.2 in support of its defence. That document appears, on the face of it, to be the draft license of the defendant company. It makes a reference to the Indian Electricity Act, 1910 and states that the licenses shall be read and construed as subject in all respects to the provisions of that Act. A.2 in support of its defence. That document appears, on the face of it, to be the draft license of the defendant company. It makes a reference to the Indian Electricity Act, 1910 and states that the licenses shall be read and construed as subject in all respects to the provisions of that Act. It has therefore been faintly argued by Mr. Maheshwari, learned counsel for the defendant-respondent that the actual license has not been brought before the court and that as the Indian Electricity Act, 1910 was not in force in the Jodhpur State, that license is really of no consequence. This submission of the learned counsel has first to be examined before proceed to consider the controversy on the merits. 6. It will, however, be sufficient to say that nothing has been brought on the record to show that the Indian Electricity Act, 1910, (Act No. IX of 1910) was not in force in the Jodhpur State in some form or the other. Moreover the very fact that the defendant produced Ex. A.2 as its license shows that it had agreed that it would be bound by its terms and conditions. Since it has been stated in the license that it was issued under the provisions of sec. 3(1) of the Indian Electricity Act, 1910, as applied to the Government of Jodhpur, there is no reason why the defendant should not be held bound by the license. Moreover, as clause 2 of the license provides that the license "shall be read and construed as subject in all respects to the provisions of the Indian Electricity Act, 1910 (IX of 1910), as applied to the Government of Jodhpur", there is no reason why the defendant should be allowed to take the stand that the said Indian Electricity Act does not govern its license. The argument that Ex. A.2 should be left out of consideration because it is a draft license, is also futile for the further reason that Durgachand D.W.I, who was the secretary of the defendant company right from July, 1950, has stated that Ex. A.2 is a copy of the license which the Government had issued to the company. There is therefore no reason why Ex. A.2 should not be held to be the defendants license under the provisions of the Indian Electricity Act of 1910. 7. A.2 is a copy of the license which the Government had issued to the company. There is therefore no reason why Ex. A.2 should not be held to be the defendants license under the provisions of the Indian Electricity Act of 1910. 7. Having put aside the objection of the respondents learned counsel to the contrary I shall deal with the main controversy between the parties. Before doing so, I may make it quite clear that the impugned judgment of the lower appellate court has been vitiated by serious factual and legal errors for which it is necessary to re-examine the entire controversy. For instance, the learned Judge has stated in his judgment that the plaintiff "had an installation in his cinema premises which was appropriate, according to the regulations of the Company, for the supply of energy for light and fans only and not for the supply of power energy." He has not referred to any of those regulations and, as I shall show a little later, this observation is quite incorrect. In fact Mr. Maheshwari has admitted its inaccuracy in this court. So also, the learned Judge erred in making the observation that even if the energy supplied was used by the plaintiff for power purposes, "this is not the same thing as saying that the defendant company supplied energy for power purposes." I have in fact not been able to understand the actual meaning of this cryptic observation. The other observation of the learned judge that the defendant company supplied energy only for light and fans and it was therefore entitled to charge at that rate, is futile and incorrect and shows that he did not care to read the evidence correctly. So also, the observation of the learned Judge that the parties had joined hands in contravening the provisions of the Indian Electricity Act and were thus in pari delicto, is quite unjustified and incorrect. A careful reading of the impugned judgment show, therefore, that the learned Judge did not come to grips with the evidence and deflected from the task of adjudging the controversy between the parties on the basis of the evidence and the law. This is why it is necessary for me to go into the controversy myself. 8. A careful reading of the impugned judgment show, therefore, that the learned Judge did not come to grips with the evidence and deflected from the task of adjudging the controversy between the parties on the basis of the evidence and the law. This is why it is necessary for me to go into the controversy myself. 8. The main question for decision in this appeal is whether the defendant was not legally entitled to charge for the supply in question at the rate of annas 8 per unit when the plaintiff had installed a one-phase rectifier? This was the subject matter of issue No. 2. While examining it I shall consider the plea whether the recovery at the higher rate in such circumstances was illegal, for this was the subject matter of issue No. 7. It will shorten my task and straighten the path if I set out here the admitted or well-proved facts of the case which have really not been controverted by the learned counsel for the parties in this court. 9. The electric fittings in the plaintiffs cinema house were three-phase fittings, as has been stated by Hiralal P.W. 4 who was the licensed electric fitter who made the fittings. He has also stated that there were three-phase four-wire fittings in the cinema hall. Daulat Ram D. W. 4, who was the Resident Engineer of the defendant company since August 15, 1950, has also stated this was so. It is therefore apparent that the electric installation at the power house was quite suitable for the apply of a power connection. It has also been proved that the plaintiff applied for a power connection in his application Ex. A-l dated August 5, 1950, and asked for the supply of "3 K.W. 4 HP." electric energy. It has also been proved that he was given a power connection, and not a connection for lighting and fans. Superintending Engineer Amar Singh P.W. 1 has made a statement to this effect, and so also Resident Engineer Daulat Ram of the defendant company. It is apparent from the statements of these two witnesses that the plaintiff was given a power meter and that it was a three-phase and four-wire supply. Superintending Engineer Amar Singh P.W. 1 has made a statement to this effect, and so also Resident Engineer Daulat Ram of the defendant company. It is apparent from the statements of these two witnesses that the plaintiff was given a power meter and that it was a three-phase and four-wire supply. It is not in dispute that the system of supply was such that the pressure for the supply of alternating current did not exceed 230 volts between each phase and neutral, and 400 volts between phases, as required by clause 10 of license Ex. A-2. Moreover it has been proved beyond doubt that the connection which was given to the plaintiff was permanent from the very beginning. Durga Chand D.W. 1, who, as has been stated, was the secretary of the defendant company at the relevant time, has stated that this was so, and so also the defendants Resident Engineer Daulat Ram D.W. 4. Further, the statement of Daulat Ram proves it beyond doubt that the plaintiff did not use the power connection for lighting and fans and that, on the contrary, he utilised it for the same work as a three-phase rectifier. It is however also an admitted fact that the plaintiff really installed a single-phase rectifier for converting the alternate current into direct current in order to run the cinema. The statement of Sushil Kumar P.W. 5 shows however that a single-phase rectifier as well as a three-phase rectifier are both appliances for use against a power connection and this has again been admitted by Daulat Ram D.W. 4. To the same effect is the statement of Superintending Engineer S. N. Purohit who was examined by this court as an expert in order to clarify certain technical points regarding the controversy between the parties. It would thus appear that the above mentioned important facts have either been admitted or proved beyond doubt and the question which remains for consideration is whether the defendant could have charged for the supply of electric power at the rate of annas 8 per unit simply because the plaintiff installed a one phase rectifier for conversion of the current from A.C. to D. C. in the above circumstances instead of a three phase rectifier. 10. 10. As has been stated, the plaintiff now relies for its claim of refund of the excess charge only on the provisions of the above-mentioned license and the Indian Electricity Act, for his learned counsel has not pressed the plea that such a claim could be sustained on the basis of any prior agreement between the parties of the nature mentioned in the plaint. The defendant however raised the following pleas in its defence— (i) The plaintiff installed a one-phase rectifier instead of motive power and such a rectifier only generetes light and not power. (ii) The plaintiff did not take prior permission of the defendant to install a single-phase rectifier. (iii) The use of single-phase rectifier on a three-phase supply system unbalanced the load in all circumstances. (iv) The defendant had a right in law to make the charge at the rate of annas 8 per unit for the kind of energy consumed by the plaintiff on the one-phase rectifier installed by him. 11. The first three of these defences are proving the plea that a single-phase rectifier only generates "light" and not power, lay on the defendant but he has not succeeded in proving it. On the other hand, Superintending Engineer S. N. Purohit has expressed the opinion that this contention of the defendant is quite incorrect. The witness has clearly stated that it was incorrect to say that a single-phase rectifier generates only electricity for lights and fans and not for power. He has deposed that what such a rectifier generates can be used for power also. Thus the first plea of the defendant must be rejected as incorrect. The second plea that the plaintiff should have taken the defendants permission before installing a one phase rectifier for use against a power connection has not been supported by reference to any provision of the law or the terms of the license and it therefore also remains unproved. The third plea regarding the unbalancing of the lead is not tenable even according to the statement of B.L. Mathur D.W. 5, who has been examined by the defendant as an expert on its behalf. What the witness has stated is that there will be unbalancing of the load if one phase supply is used for power purposes exceeding one horse-power on a three-phase four-wire supply system. What the witness has stated is that there will be unbalancing of the load if one phase supply is used for power purposes exceeding one horse-power on a three-phase four-wire supply system. He has stated that the effect of the imbalance would be that there will be unequal voltages on the three-phases and all the consumers connected to the particular feeder will get voltage different from the declared nominal voltage between phase and neutral. The other effect, according to the witness,, will be that there will be extra heating of the generator and so it will not be able to take the full load and that, in turn, will result in loss of revenue to the power supply company. The witness however admitted that all this would depend on the extent of the imbalance, for if the un-balancing caused a negative sequence current of more than 15 percent than the rated current of the machine, the imbalance could not be tolerated. In such a case, according to the the witness, either the generator would trip the machine or the machine will burn out, or there may be an automatic trip if an automatic system is there to discharge that function. The. plea of unbalancing of the load could not therefore be upheld unless there was evidence to show that the system of supply or use was such as to cause an imbalance of such a magnitude as could not be tolerated by the installation or by the generator. There is however no evidence at all to prove that any such imbalance occurred, or that there was no arrangement to trip it of, or that there was any damage at all to the machine in the power house. So also, there is no evidence to show that there was extra heating of the generator and that it was unable to take the full load on account of the use of a single-phase rectifier. It cannot therefore be held that there was any loss of revenue to the defendant company so as to justify the plea that the plaintiff was responsible for causing an imbalance in the supply. What is worse, the defendant has neither pleaded nor proved that it was entitled, under the terms of its license or the law, to make a charge at the higher rate of annas 8 per unit because of such imbalance. What is worse, the defendant has neither pleaded nor proved that it was entitled, under the terms of its license or the law, to make a charge at the higher rate of annas 8 per unit because of such imbalance. On the other hand, the defendants Resident Engineer Daulat Ram P.W. 4 has admitted that they had no objection because of the imbalance, and that it was the duty of the defendant company to balance the load. His statement therefore shows that the claim for the higher charge was not made on the ground of the alleged unbalancing of the load. 12. This leaves for consideration the question whether the defendant was entitled under the law to make a charge at the rate of annas 8 per unit for the power connection supplied to the plaintiff because the plaintiff installed a single-phase rectifier. This is the main basis of the claim in the suit, and this is also the main line of the defence. 13. In order to decide this question, it is necessary to make a reference to the relevant provisions of the license and the Indian Electricity Act, 1910. 14. Clause 14(l)(a) of license Ex. A. 2 deals with the system of supply and the learned counsel for the parties have relied on its following provisions,— "10. System of supply.—(1) The systems, which may be adopted tor the supply of energy in pursuance of this licence are the following: (a) A low pressure alternating current 3 phase supply for lighting purposes at a pressure not exceeding 230 volts between each phase and natural, and at pressure not exceeding 400 volts between phases for power purposes at a frequency of 50 complete period per second." So far as the charges for the supply of electric current are concerned, they have been dealt with in the Third Annexure to the license and items(l) and (3) thereof which, it is admitted, are the only relevant provisions, read as follows,— "1. Maximum charges.—The following are the maximum charges which the licensee is entitled to charge: (1) For energy used for lighting and fans.—For each unit annas eight only. (2)... ... ... ... ... ... (3) For energy used for power purposesFor each unit annas three only. (4)... ... ... ... ... ... ... ..." 15. So far as the Indian Electricity Act is concerned, sub-sec. 2 of sec. (2)... ... ... ... ... ... (3) For energy used for power purposesFor each unit annas three only. (4)... ... ... ... ... ... ... ..." 15. So far as the Indian Electricity Act is concerned, sub-sec. 2 of sec. 23 thereof at the relevant time read as follows— "23. Charges for energy to be made without undue preference— (1)... ... ... (2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force. (3) ... ... ..." The controversy has therefore to be decided within the ambit of these provisions. 16. As is obvious, the above mentioned clause 10 of the license (Ex.A.2), deals only with the system of supply of electric energy, and it was the duty of the defendant to supply a low pressure alternating current, 3 phase supply, for lighting purposes, at a pressure not exceeding 230 volts between each phase and neutral. It was also its duty to supply a low pressure alternating current not exceeding 400 volts between phases for power purposes. Thus the requirement of clause 10 was simply to the effect that in the case of the supply of energy for lighting and fans, the defendant was to supply current at a voltage of 230 between phase and neutral, while the power supply had to be at a pressure of 400 volts between phases. It is not disputed that the defendant supplied power at a pressure of 400 volts to the plaintiff. But it would be unfair to infer from this provision of clause 10 anything regarding the mode of the charge for the supply. 17. The maximum charges for the supply of electric current were those specified in the Third Annexure and I have reproduced the relevant provisions thereof. So where the consumer used energy for lighting and fans, he had to pay at the rate of annas 8 per unit, while for energy used for power purposes he could only be asked to pay at the maximum rate of annas 3 per unit and no more. The Third Annexure cannot therefore be of any avail to the defendant for the purposes of making the claim for the higher charge of annas 8 per unit in the case of energy supplied for power purposes. The Third Annexure cannot therefore be of any avail to the defendant for the purposes of making the claim for the higher charge of annas 8 per unit in the case of energy supplied for power purposes. On the other hand, it did not permit any such charge. In fact sub-sec. (2) of sec 23, which also has been reproduced, goes to show that a consumer was prohibited, except with the consent in writing of the licensee, from using energy supplied to him under one method of charging in a manner for which a higher method of charging was in force. Thus it was not permissible for a consumer to use energy obtained for power purposes, for lighting and fans. The question therefore is whether the defendant used the power energy, for lighting and fans. The answer to the question is quite simple, for a reference to the admitted and proved facts set out by me above makes it quite clear that the plaintiff asked for a power connection, he got a permanent power connection, and he did not use that1 connection, for lighting and fans. There is evidence to show that both one-phase and three-phase rectifiers are used for power connections. This has been admitted by the defendants Resident Engineer Daulatram PW. 4 and this is what Superintending Engineer S. M. Purohit has also stated. In these facts and circumstances, it has been proved beyond doubt that the plaintiff used the current only for power purposes. There was therefore no justification for charging more than annas 3 per unit for the supply of the power connection to the plaintiff. It may be that the defendant felt aggrieved because the plaintiff installed a single-phase rectifier instead of a three-phase rectifier against the power connection, and it may also be that such a use might have justified the disconnection of the supply, but even these assumptions could not justify the making of a higher charge for it has been proved beyond doubt that the energy was used for power purposes only and not for lighting and fans. There is therefore justification for the claim of the plaintiff that he was liable to pay for the supply at the maximum rate of annas 3 per unit and that he is entitled to a refund of the excess payment. 18. There is therefore justification for the claim of the plaintiff that he was liable to pay for the supply at the maximum rate of annas 3 per unit and that he is entitled to a refund of the excess payment. 18. This however raises the question whether the plaintiff made the overpayment, at the enhanced rate of annas 8 per unit, under protest, or whether he acquiesced in that payment as urged by the defendant. These points of controversy fell within purview of issues Nos. 4, 9 and 10, and have been argued in this court also. There is ample documentary evidence on the record to prove that the payment was really made under protest and there was no acquiescence on the part of the plaintiff in making payment at the higher rate. The plaintiff applied for the supply of power, as is quite clear from his application Ex. A. 1 dated August 5, 1950, and in endorsing its acceptance for the deposit on account of the supply the defendant agreed to supply the power connection. The plaintiff thereafter actually received bill Ex. 3 dated October 6, 1950 at the rate of annas 3 per unit. He issued letter Ex. 4 dated November 28, 1950 to the defendant company protesting against its intimation that it would make a charge at the rate of annas 8 per unit from October 1, 1950. The plaintiff therefore protested against the increase in the rate at that early date. The defendant sent reply Ex 5 dated November 29, 1950 informing the plaintiff that the matter had been referred to the Local Committee of Directors and that its decision would be conveyed to him at an early date. The defendant followed this up by its letter Ex. 6 dated December 6,1950 conveying the further information that while the opinion of the Local Directors had been received, the Chairman was out of station, and that the final decision would be conveyed on his arrival. Then the plaintiff wrote letter Ex. 9 dated 15-1-1951 saying that no final decision had been received and that the time for the payment may therefore be extended. The defendants Secretary sent letter Ex. 7 dated 17-1-1951 in reply intimating that the matter was under consideration and asking the plaintiff to make the payment if he wanted to avoid the disconnection of the supply. The plaintiff again wrote letter Ex. The defendants Secretary sent letter Ex. 7 dated 17-1-1951 in reply intimating that the matter was under consideration and asking the plaintiff to make the payment if he wanted to avoid the disconnection of the supply. The plaintiff again wrote letter Ex. 8 on April 10, 1951 to the defendants Engineer in which he clearly alleged a breach of the contract and threatened action in a court of law. This shows that the plaintiff did not agree at any stage to the payment of annas 8 per unit and was, on the other hand, protesting against the increase. The defendant has not produced any evidence to the contrary and it is significant that it has not been able to produce any documentary evidence to show that the plaintiff had been clearly and categorically informed that its protest against the charge at the rate of annas 8 per unit had been rejected by the Company. On the other hand, Durga Chand D W. 1, who was the Secretary of the defendant Company from July, 1950 onwards, has stated that the dispute referred to in the plaintiffs letter Ex. 7 had not been decided up to the date of his statement. In these facts and circumstances, it appears that the plaintiff made the payment only under protest and for the purpose of avoiding the threatened unplea-sent consequences of disconnection of the supply, and the matter remained pending as a live issue between the parties until the date of the institution of the suit. In such circumstances, the payment at the higher rate of annas 8 per unit should rightly be held to be an involuntary payment, under protest, and is recoverable. Reference for this view may be made to the decisions in The Palgat Electric Corporation, Ltd , at Koppam, Palghat vs. T. N. Veeraraghava Ayyar (1), Secretary, Municipal Committee, Karanja vs. The New East India Press Co., Ltd., Borobay(2), and Babulal Chhaganlal Gujerathi vs. Chopda Electric Supply Co. Ltd.,(2). 19. The plaintiff is therefore entitled to a refund of the excess payment. Ltd.,(2). 19. The plaintiff is therefore entitled to a refund of the excess payment. But the learned counsel have agreed in this court that even though the trial court decreed the entire claim in the suit, it would not be proper to pass a decree to that effect and that it would be desirable to pass a preliminary decree directing re-payment of the excess money to the plaintiff, leaving it to the trial court to determine its actual amount in a final decree. The appeal is therefore allowed, the impugned judgment and decree of the lower appellate court are set aside and it is decided that as the defendant could not charge for the power energy supplied by it to the plaintiff at a rate exceeding annas 3 per unit the plaintiff is entitled to a refund of the excess payment. To this effect a preliminary decree is passed directing the trial court to determine the actual amount of the excess payment which the plaintiff is entitled to recover from the defendant and to pass a final decree for it against the defendant. The plaintiff will be entitled to his costs throughout to the extent to which his claim is upheld in the final decree, while the defendant will similarly be entitled to costs for that part of the claim which is ultimately disallowed.