S. B. MAJMUDAR, J. ( 1 ) THIS second appeal is filed by the original defendant No. 1 against whom respondent No. 1 plaintiffs suit came to be decreed by the lower appellate Court. Original defendant No. 1 appellant before this Court died pending this second appeal and his heirs have been brought on record and they are now prosecuting this second appeal. ( 2 ) RESPONDENT No. 1 Gujarat Electricity Board had filed Regular Civil Suit No. 86 of 1971 in the Court of the learned Joint Civil Judge J. D Godhra for recovering Rs. 8200/with interest and costs from original defendant No. 1 as well as the present respondent No. 2. The case of the respondent plaintiff was that it was supplying to various consumers electric power as a licensee under the provisions of the Electricity (Supply) Act 1945 read with Indian Electricity Act 1910 That as a general supplier of electric power it had entered into a contract with original defendant No. 1 to supply him electricity for the purpose of his quarry Satya Saibaba Quarry works situated at Timba within the ordinary Jurisdiction of the Court of the Civil Judge J. D. Godhra; that defendant No. 1 had applied for electric power for the use of his quarry and that he had agreed to pay Rs. 4800/as minimum electric power supply charges and signed an undertaking on 18-6-1968 in that behalf. According to the plaintiffboard defendant No. 1 had to pay Rs. 4800/by way of minimum charges per year calculated at the rate of Rs. 400/per month as minimum charges. As defendant No. 1 had applied for 80 H P. connection minimum charges were worked out at Rs. 400/at the rate of Rs. 5/per H. P. The said amount was subject to the prevailing tarrif rate at which the plaintiff board was entitled charge the consumer concerned that the plaintiff had raised minimum charges with effect from 24-7-1969 from Rs. 5/per H. P. to Rs. 6/per H. P. Accordingly the minimum charges thereafter worked out at Rs. 480/per month as per the new tariff rates. The plaintiff board contended that pursuant to defendant No. 1s application and undertaking given by him the plaintiff had put installation upto the quarry of deft. No. 1 and issued to him 3 months notice to take the supply. Defendant No 1. admittedly has not taken the supply. 480/per month as per the new tariff rates. The plaintiff board contended that pursuant to defendant No. 1s application and undertaking given by him the plaintiff had put installation upto the quarry of deft. No. 1 and issued to him 3 months notice to take the supply. Defendant No 1. admittedly has not taken the supply. Defendant No. 2 was joined by the plaintiff because he had subsequently purchased Satyanarayan quarry works for which the electric supply was sought for by defendant No. 1. The plaintiff board accordingly claimed Rs. 9400/as minimum charges for the period from 24-7-69 to the end of March 1971 According to the plaintiff the claim came to Rs. 8200. 00. The plaintiff had given credit of Rs. 1200/and hence plaintiff claimed Rs. 8200/in the suit with interest and costs. ( 3 ) THE aforesaid suit was Registered as Civil Suit No. 86 of 1971 in the Court of the Civil Judge J. D. Godhra. ( 4 ) DEFENDANT No. 1 raised various pleas in his written statement. It was contended that he was not read over the contents of the agreement and hence he was not liable to pay any amount whatsoever. No supply of electricity was given by the Board and hence he was not liable. He contended that he could not take the supply as he was bed ridden at that time; that thereafter a dispute between him and his partners resulted into litigations which were pending in the Courts that the suit was bad for misjoinder of parties and cause of action and that defendant No. 2 was neither a necessary nor a proper points; that he was not liable to pay any amount as there was no privity of contract between him and the Board. ( 5 ) THE learned trial Judge framed various issues and after recording evidence came to the conclusion that the plaintiff Board was not entitled to get the suit claim against either of the two defendants as defendant No. 1 was not found to have signed undertaking in favour of the Board. It was further found that the plaintiff Board was not entitled to charge minimum charges as it had not supplied any electrical energy to defendant No. 1. Consequently the learned trial Judge was pleased to dismiss the suit of the plaintiff. It was further found that the plaintiff Board was not entitled to charge minimum charges as it had not supplied any electrical energy to defendant No. 1. Consequently the learned trial Judge was pleased to dismiss the suit of the plaintiff. ( 6 ) THE plaintiff carried the matter in appeal before the District Court and the learned appellate Judge in Regular Civil Appeal No. 99 of 1977 allowed the appeal of the plaintiff board. The learned appellate Judge on reappreciation of the entire evidence on the record both oral and documentary came to the conclusion that defendant No. 1 was a prospective consumer of electricity and bad knowingly entered into a contract to get electricity from the Board for his quarry and that he had signed undertaking Ex. 67 agreeing to be liable to pay the minimum charges in case there was any default on his part in taking electricity when the Board was prepared to supply it. The learned appellate Judge found that the Board was entitled to recover the minimum charges and that the defendant No. 1 committed breach of the contract and had refused to take electricity for which he bad already made requisition. It was further found that the provision regarding charging minimum amount from the consumers was not by way of a formality. The Board had power and right to charge minimum charges and consequently the learned appellate Judge decreed the suit of the plaintiff Board against original defendant No. 1 of course the suit of the board against defendant No. 2 was not decreed as there was no privity of contract between the Board sad defendant No. 2. ( 7 ) THE dissatisfied defendant No. 1. has preferred this second appeal before this Court being aggrieved by the decree passed by the learned appellate Judge against him. The board has not preferred any cross objections or cross appeal in so far as its suit against defendant No. 2 was dismissed by both the Courts. The contest is now between defendant No. 1 on the one side and the plaintiff Board on the other. ( 8 ) MR. The board has not preferred any cross objections or cross appeal in so far as its suit against defendant No. 2 was dismissed by both the Courts. The contest is now between defendant No. 1 on the one side and the plaintiff Board on the other. ( 8 ) MR. V. J. Desai learned advocate appearing for the defendant No. 1 has raised the following contentions in support of his say; (1) That the plaintiff Board was not entitled to recover minimum charges from defendant No. 1 as defendant No. 1 has not signed the suit contract or the document Ex. 57 after fully understanding it. (2) Mr. Desai further submitted that even assuming that defendant No. 1 has signed the suit agreement Ex. 57 even then respondent Board had no authority to levy minimum charges under the provision of sec. 22 of the Indian Electricity Act as the said section had stood repealed by the provision of sec. 26 of the Electric Supply Act and consequently the said claim of the Board was totally devoid of any legal basis (3) Even in the alternative it was submitted by Mr. Desai that even assuming that the suit claim was sustainable on the ground of contractual obligation of the plaintiff and defendant No. 1 even then the provision of levying minimum charges to supply electric energy to the consumer amounts to a penalty clause and defendant No. 1 was entitled to be relieved against it as per the provisions of sec. 74 of the Indian Contract Act (4) Lastly it was submitted by Mr. Desai that taking any view of the matter the contract entered into by defendant No. 1 to take electricity from the Board at the site of the quarry could Dot be fulfilled because of circumstances beyond control of defendant No. 1 and consequently no obligation arose for defendant No. 1 to meet the claim of the plaintiff Board regarding minimum charges. Mr. M. D. Pandya learned advocate appearing for the respondent Board supported the decree passed by the learned appellate Court. Respondent No. 2 has no longer any interest in the present proceedings and is a mere formal party. ( 9 ) THAT takes me to Mr. Desais second submission. Mr. M. D. Pandya learned advocate appearing for the respondent Board supported the decree passed by the learned appellate Court. Respondent No. 2 has no longer any interest in the present proceedings and is a mere formal party. ( 9 ) THAT takes me to Mr. Desais second submission. He submitted that the plaintiff board was not entitled to charge minimum supply charges from defendant No. 1 as the plaintiff had not in fact supplied electric energy to defendant No. 1 may be on account of incapacity of defendant No. 1 to take electric power. Mr. Desai submitted that under sec. 22 of the Electricity Act 1910 it has been laid down that if the licensee supply energy for any premises the consume. concerned has to agree with the licensee to pay him such minimum charges as would give him reasonable return of capital expenditure. It is contended by Mr. Desai that the provisions of sec. 22 specially the proviso thereof will not be available to the plaintiff as the said provision has been made inapplicable in case of plaintiff board by virtue of sec. 26 of the Electricity (Supply) Act 1948 In order to appreciate this submission of Mr. Desai it is necessary to reproduce sec. 22 of the Indian Electricity Act 1910 ( 10 ) WHERE energy is supplied by a licensee every person within the area of supply shall except in so far as is otherwise provided by the terms and conditions of the licence be entitled on application to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply. PROVIDED that no person shall be entitled to demand or to continue to receive from a licensee a supply of energy from any premises having separate supply unless he has agreed with the licensee to pay to him such minimum annual sums will give him a reasonable return on the capital expenditure and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises the sum payable to be determined in case of difference or dispute by arbitration. Sec. 26 of the Electricity (Supply) Act 1948 reads as under:- ( 11 ) 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 and this Act shall be deemed to be the licence of the Board for the purposes of that Act. PROVIDED that nothing in secs. 3 to 11 sub-secs. (2) and (3) of sec. 21 (Sec. 22 sub-sec. (2) of sec. 22a and secs. 2; and 27) of that Act or in (clauses I to V clause VII and clause IX to XII) of the Schedule to that Act relating to the duties and obligations of a licensee shall apply to the Board. PROVIDED further that the provisions of clause VI of the Schedule to that Act shall apply to the Board in respect of that area only where distributions mains have been laid by the Board and the supply of energy through any of them has commenced. NOW a mere look at sec. 26 shows that the Board shall have all the powers and obligations of a licensee under the Indian Electricity Act 1910 Thus power conferred on the licensee ky the proviso to sec. 22 of the 1910 Act would obviously be available to the plaintiff Mr. Desai contends that by virtue of the first proviso to sec. 26 of the Supply Act sec. 22 is not made applicable to the transactions entered into by the plaintiff Board. The first proviso to sec. 26 of the Supply Act clearly provides that some of the provisions of 1910 Act in so far as they relate to duties and obligations of a licensee would not apply to the Board constituted under the Electricity (Supply) Act 1948 It is admitted that the Electricity Board is duly constituted but it is not possible to accept the submission of the appellant that the whole of 1910 Act is not made applicable to the transactions entered into by the plaintiff board. The only effect of the proviso to sec. The only effect of the proviso to sec. 26 of the Supply Act is that the sections enumerated therein in so far as they refer to the duties and obligations of the licensee will not apply to the Board constituted under the Electricity (Supply) Act 1948 But the said proviso does not touch any power which may have been conferred on the licensee under the Electricity Act 1910 The aforesaid proviso to sec. 22 of the 1910 Act does not refer to any obligations of the licensee but really pertains to the power of the licensee and provides that the licensee is entitled to charge minimum annual sum by way of reasonable return of capital expenditure on the consumers concerned once a consumer demands supply of energy from the licensee. Mr. Desai contended that the words employed by the proviso to s. c. 26 namely the duties and obligations of the licensee apply only to the last part of the provisions contained in the first proviso namely in so far as clauses I to V clause VII and clause IX to XII of the schedule are mentioned in the said proviso. In the submission of Mr. Desai the words relating to the duties and obligations of the licensee as mentioned in the last part of the first proviso to sec. 26 cannot travel backwards and cover earlier clauses in the said proviso. It is difficult to accept the said argument canvassed by Mr. Desai. A comprehensive reading of the proviso to sec. 26 clearly shows that the proviso wanted to exclude operation of various section of the Indian Electricity Act 1910 in so far as the Board constituted under the Electricity (Supply) Act 1948 is concerned. But that exclusion of operation is limited to the duties and obligations of licensee as provided for by these concerned enumerated sections and the proviso is not meant to touch any powers which may have been conferred on the licensee under the 1910 Act. The main part of sec. 26 provides for saving of all the powers and obligations of the licensee under the 1910 Act. The proviso wants to carve out an exception so far as obligations of the licensee under the aforesaid 1910 Act are concerned and exclude operation of certain specified sections enumerated in the first proviso in so far as they pertain to the duties and obligations of an licensee. The proviso wants to carve out an exception so far as obligations of the licensee under the aforesaid 1910 Act are concerned and exclude operation of certain specified sections enumerated in the first proviso in so far as they pertain to the duties and obligations of an licensee. It is therefore obvious that the proviso to sec. 22 of the Indian Electricity Act which prescribes this power for the licensee concerned to charge minimum annual sum from the concerned consumer is not affected by the operation of the first proviso of the sec. 26 of Supply Act. In fact the legal position that the proviso to sec. 22 confers such power on the licensee under the 1910 Act is now well settled. In the case of Gujarat Electricity Board v. Rajratna Mills 16 G. L R 90. The Division Bench consisting of B. J. Divan C. J. and T. U. Mehta J. had an occasion to consider the question as to whether the Board was entitled to charge minimum charge of supply of electricity from the consumer. The whole scheme of the Indian Electricity Act 1910 was analysed by the Division Bench and it was held that the provision of minimum charge in the agreement between a consumer and a licensee is but one of the modes of providing for reasonable return to the linensee for the investment that it has made and on the capital outlay that it had made and merely because the agreement provides for a minimum charge it cannot be said that the terms are unreasonable or that a monopoly concern has taken undue advantage over the consumer in the area of supply. The entire operation and levying of charges is strictly controlled by the rules and provisions of statutes and one of the provisions is that in the case of bulk supply a minimum charge can be provided for in the agreement between the parties. For arriving at this conclusion the Division Bench of this Court speaking through Divan C. J. in terms referred to sec. 2t of the 1910 Act and placed reliance on the proviso to sec. 22. Consequently the Division Bench of this Court while upholding the power of the Electricity Board to charge minimum charges for supply of electricity to a consumer has applied the provisions of sec. 22 of the Indian Electricity Act 1910 Mr. 2t of the 1910 Act and placed reliance on the proviso to sec. 22. Consequently the Division Bench of this Court while upholding the power of the Electricity Board to charge minimum charges for supply of electricity to a consumer has applied the provisions of sec. 22 of the Indian Electricity Act 1910 Mr. Desai is right when he contended that the Division Bench had no occasion to consider the effect of sec. 26 of the Electricity (Suppy) Act 1948 But as I have already shown above that makes no difference as the first proviso to sec. 26 of the Supply Act does not impinge upon the power of the Board conferred by sec. 22 of the 1910 Act in favour of the licensee. The Supreme Court had also an occasion to consider the effect of the proviso to sec. 22 of the Indian Electricity Act 1911 in the case of Amalgamate Electricity Co. v. The Jalgaon Borough Municipality A. I. R. 1975 S. C. 2235. Mr. Justice Fazal Ali speaking for the Supreme Court in the aforesaid case observed that a clause in an agreement for supply of energy by which the licensee was assured of minimum consumption of energy by the consumer and for payment of the same whether it was consumed or not is not void under sec. 23 of the Act. The clause embodies what is known in common parlance as doctrine of minimum consumption and is in direct compliance with the proviso to sec. 22 which ensures a provision for minimum guarantee for supply of electricity. Licensee is entitled to recover minimum charges in pursuance of that clause. Thus the Supreme Court in the aforesaid decision in terms relied upon the proviso to sec. 22 as conferring power on the licensee to charge minimum guarantee amount from the concerned consumer. In that view of the matter it cannot be submitted by Mr. Desai that the provisions of sec. 22 of the 1910 Act especially the proviso thereto is excluded is so far as it conferred power on the plaintiff board as licensee to charge minimum charges from the consumer. The second submission of Mr. Desai is therefore liable to fail. It is also necessary to note that in the present case the plaintiff Board seeks to recover the said amount from defendant. The second submission of Mr. Desai is therefore liable to fail. It is also necessary to note that in the present case the plaintiff Board seeks to recover the said amount from defendant. No. 1 on the basis of express contract entered into between the parties and the undertakings solemuly given by defendant No. 1 to the board. As per sec. 49 (1) of the Electricity (Supply) Act 1948 the Board is entitled to supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. Thus the plaintiff board is entitled to enter into contract of supply of electric energy to different consumers. Accordingly the plaintiff entered into contract with defendant No. 1 to supply electric energy and put him to terms by way of liquidated damages and if defendant No. 1 committed breach of contract and refused to accept electric power he would be liable to pay minimum charges. Even apart from the proviso to sec. 22 the Board was entitled to fall back upon contractual obligations of defendant No. 1 as per ex. 57 72 and 80 to pay minimum charges to the Board if defendant No. 1 was not in a position to receive electric energy supplied by the Board and committed breach of the same. It is an admitted position in the present case that the plaintiff was prepared to supply energy contracted for but defendant No. 1 for reasons of his own refused to receive electricity supplied by the Board and committed breach of the Contract. Thus by way of liquidated damages the defendant No. 1 was liable to pay the said amount. (The rest of the judgment is not material for the reports)Appeal dismissed. .