JUDGMENT - Gadgiland B.C.J.- The plaintiff, i. e. the Maharashtra State Electricity Board, has filed this appeal against the dismissal of a part of the claim made in Special Civil Suit No. 13 of 1967 of the file of the Civil Judge, Senior Divi-sion, Amravati. There are certain facts which are not in dispute at the S1;age of this appeal. The plaintiff is supplying electric energy to various con-sumers on certain terms and conditions. The defendant was carrying on an industry known as Messrs Saraf Oil Industries at Dhamangaon from 22-2-1958. The electricity was being supplied to him by low tension. On 12-12-1963 he applied for changing the supply to high tension electricity. The plaintiff granted this request: An agreement dated 20-2-1964 (Ex. 43) was executed between the plaintiff and the defendant for supplying 100 KVA. Under the agreement the defendant was to pay thc energy bill every month. The following are the relevant terms of the agreement :- “9(a). In consideration of the special obligations assumed and for investments made by the supplier for the benefit of the consumer, the consumer hereby guarantees that the total annual charges payable by him for the electrical energy consumed hereunder shaH not be less than Tariff minimum or the monthly minimum charges payable under clause 8, whichever is more. Although the Consumer wil1 be billed for actual energy consumed every month subject to the monthly minimum, the difference between the guaranteed minimum charges and the actual charges paid (if the same are less than the guaranteed minimum) by the Consumer for each 12 months' period shall, on presentation of a bill therefore at the end of each n months' period, be paid by the Consumer to the supplier at the office of the Chief Engineer or as may be otherwise required within 20 days from the date of the bill. 10(a) Subject to the provisions of clause II hereof, the period of supply under his agreement shall be a minimum period of seven years ending March next after 7 years' period from the date of the commencement of supply and from year to year thereafter etc. 10(a) Subject to the provisions of clause II hereof, the period of supply under his agreement shall be a minimum period of seven years ending March next after 7 years' period from the date of the commencement of supply and from year to year thereafter etc. determinable by a six calendar months' notice on either side expiring at the end of the said minimum period of seven years or at the end of any such subsequent year,\lnd upon the expiration of any such notice this agreement shall determine, but without prejudice to the rights and liabilities of the parties in respect of any matter antecedent to such determination. 11. In the event of the supply of electrical energy being discontinued by the supplier in consequence of any breach or default on the part of the Consumer entitling the supplier so to do under the provisions of the Act and the Rules, the amount of charges for the electrical energy already supplied and all other moneys then payable under this agreement shall become due and recoverable forthwith provided always and it is hereby expressly agreed and declared that during the period of such discontinuance the Consumer shall continue to pay the minimum charges and minimum guarantee payable hereunder: 12. If at any time during th~ continuance of this agreement the Consumer shall :- (a) * * * (b) * * * (c) commit any breach of or fail to observe and perform any of the conditions and provisions contained in this agreement and on his part to be observed 'and performed; the Supplier shall be at liberty to terminate this agreement by giving seven days' notice to the Consumer and upon such termination the Consumer shall forthwith pay to the supplier at the Office of the Chief Engineer or as may be otherwise required all the moneys then due and payable under this Agreement together with a further sum equal to the amount of the minimum guarantee for the unexpired minimum period of supply as and by way of liquidated damages. 13. 13. * * * * * 14(a) Conditions and Miscellaneous charges for supply of electrical energy of the supplier for time being in force and as amended by supplier from time to time as set out in the Second Schedule hereto shall be deemed to be part of the agreement and shall govern the parties hereto in so far as applicable.” The defendant did not pay the bill for the month of November 1964. It appears that in that month the meter Went out of order and a new meter was supplied on 7-3-1965. Thus, there was some dispute as regards the correctness of the bill for November 1964. Original1y the bill was for Rs. 2003.89. The defendant paid that amount under protest. However, the said bill was there after revised to Rs. 1844.89. Thus an amount of Rs. 159 remained to the credit of the defendant. On 1J,.5-l965 the plaintiff issued four bills for the months of December 1964 and January, February and March 1965. The detai]s of lhose bills due as follows :- December 1964 ... Rs. 1181.67 (adjustingthe credit of Rs. 159) January 1965 ... Rs. 1326.76 February 1965 ... Rs. 104740 March 1965 ... Rs. 2177.10 These bills were not paid by the defendant. The bill for the month of April 1965for Rs. 3011.24 was also sent on the same day and it has been paid. The bills for the subsequent months, namely, May and June 1965 were also not paid. The plaintiff sent a notice dated 30-6-1965 demanding allJhe arrears. As the defendant did not make the payment a second notice dated 14-7-1965 was also issued informing the defendant that the energy supply will be discontinued if the amount was not paid. As the defendant did not pay the amount even thereafter, the energy supply was discontinued from 29-7-1.965. Thereafter on 19-8-1965 the plaintiff gave another notice terminating the agreement between the parties. 2. The plaintiff then filed the suit under appeal to recover certain amounts as mentIoned in paragraph 11 of the plaint. In substance, the plaintiff claimed the energy bills from December 1964 to 29th July 1965. There was also a claim for a small amount of Rs. 4.96 as meter rent. The important item which is practically the main controversy between the parties is of Rs. 39,813.13. In substance, the plaintiff claimed the energy bills from December 1964 to 29th July 1965. There was also a claim for a small amount of Rs. 4.96 as meter rent. The important item which is practically the main controversy between the parties is of Rs. 39,813.13. The plaintiff has claimed this amount as the minimum guarantee amount from 27-8-1965 till 31.-3-1972 i. e. the unexpired portion of the seven years' agreement. The plaintiff has in addition claimed certain interest and charges for service connection etc. 3. This suit was resisted by the defendant by his written statement (Ex. 9). His main contention is that the meter went out of order in November 1964 and that the bill for that month was initially sent as of Rs. 2,003.89. The defendant paid that amount under protest. However, the plaintiff revised the bill and reduced it to Rs. 1,844.89 and thus the defendant was entitled to a credit ofRs 159. As far as the bills for the months of December 1964 and January, February and March 1965 are concerned, the defendant contended that those bills were not submitted every month as required under the agreement and the bills had been sent on 17-5-1965. The meter which had gone out of order was replaced on 7-3-1965. The defendant contends that the four bills for December 1964 and January, February and March 1965 were on a haphazard basis and they were not according to law. The defendant declined to pay the bills as they were not correct. The defendant further contended that there was thus a dispute about these bills and that dispute was required to be settled by the Electrical Inspector under section 26(6) of the Indian Electricity Act, 1910. The defendant's grievance is that the plaintiff did not take the dispute to the Electrical Inspector and on the contrary, has arbitrarily prepared the bills for these months. The defendant has aUeged that the payment of these four bills was not made as there was a bona fide dispute about the correctness of the bills. He paid the bill for April 1965 but the bills for the subsequent months included the amounts of the four disputed bills. Consequently the defendant w(},snQt able to pay the amount as per the subsequent bills. He paid the bill for April 1965 but the bills for the subsequent months included the amounts of the four disputed bills. Consequently the defendant w(},snQt able to pay the amount as per the subsequent bills. The defendant pleaded that there was no neglect on his part to make the payment anifas such the plaintiff was not entitled to disconnect the supply of electrical energy. 4. As far as the claim of the minimum guarantee amount for the un-expired period of the contract is concerned, the defendant has raised certain contentions as to from which date the contract became operative. However, that aspect'is not material. The main contention is that the clause making the defendant liable to pay the minimum guarantee charges for the unexpired period of the contract is a penal one and the defendant is entitled to be relieved from that clause. It was also contended that the said minimum guarantee clause was void as without consideration. The defendant has further alleged that as he has not committed any breach of the contract the plaintiff was not entitled to discontinue the supply and similerly the plaintiff is not entitled to claim the amount of minimum guarantee for the unexpired period. In the written statement the defendant has raised some more contentions. However, that aspect is not relevant at this stage. 5. The learned Civil Judge decided the suit after the parties led evidence. The plaintiff had claimed the total amount of Rs. 11,712.23 as dues till 29-7-1965. This amount included the biIJ for the electricity consumed in the months of December 1964 and January, February, March, May, June and July 1965. Meter rent charges of Rs 16.50 and delayed payment charges Rs. 110.06 were also covered by this amount. The trial Court found that as far as the bill for the consumption of electricity is concerned, it should be reduced by Rs.286.20 The trial Court disallowed the meter rent and delayed payment charges. The total came to Rs. 412.76. Thus the net amount that was found payable by the defendant was Rs. 1,299.47. An amount Rs. 1,000 was added to this figure as expenditure for connection charges. Thus, the total came to Rs. 12,299.47. Out of that the defendant was given a credit for Rs. 3,186.76 on account of certain deposits and past adjustment. Consequently a decree for Rs. 9,II2.71 was passed. The plaintiff's claim for Rs. 1,299.47. An amount Rs. 1,000 was added to this figure as expenditure for connection charges. Thus, the total came to Rs. 12,299.47. Out of that the defendant was given a credit for Rs. 3,186.76 on account of certain deposits and past adjustment. Consequently a decree for Rs. 9,II2.71 was passed. The plaintiff's claim for Rs. 39,813.13 as damages for breach of the contract was rejected. These findings were arrived at on the ground that as the dispute about the bills of December 1964 and January, February and March 1965 was required to be decided by the Electrical Inspector under section 26(6) of the Electricity Act, the claim for the said supply of electricity without such reference was erroneous. The trial Court, therefore, found that the defendant could not be said to have committed a breach of the contract and consequently the defendant was not liable for damages for any breach. 6. Against this decree the plaintiff has preferred this appeal. Though the appeal covers an amount of Rs. 42,179.70, still the only argument that was advanced before us was with respect to the claim for Rs. 39,813.13 as the amount of minimum charges payable for the unexpired period from 27-8-1965 to 31-3-1972. The defendant has filed cross-objections challenging the decree for Rs. 9,112.71. The original defendant died and the appeal had abated. However, the appellant applied for cond,Onation of delay in bringing the legal representatives on record. It also prayed for setting aside of the aba~ement. These requests were granted by this Court. Thus, appeal does not abate on account of the death of the original defendant. The legal representatives of the original defendant who has filed the cross-objections have, however, not made any application to bring them on record and it was faintly suggested that on this count the cross-objections have abated. This does not, however, appear to be ~he position. The Supreme Court. in the case of (N. Jayaran Reddi v. Rerenue Divisional Officer)1 has held that in the case of the cross appeals the appeal does not abate if legal representatives are brought on record in any of the appeals. This Court has also held in the case of (Mahagu Vishwanath v. Bhagirathibai)2 that if the legal representatives are brought on record in the cross-objection the :rpain appeal would not abate. On the same principle. This Court has also held in the case of (Mahagu Vishwanath v. Bhagirathibai)2 that if the legal representatives are brought on record in the cross-objection the :rpain appeal would not abate. On the same principle. the respondent's cross-objections would not abate as here the legal representative has been brought on record in the appeal. Of course, all this aspect does not really survive, as during the course of the arguments the learned Advocate for the respondent did not advance any submission challenging the decree for Rs. 9,112.71. 7. Thus, the only question that remains in this appeal is as to whether the plaintiff is entitled to an additional decree for Rs. 39,813.13 on account of damages for breach of contract. These damages have been measured by the amount of minimum guarantee agreed upon in the contract. 8. Shri Ghare for the defendant submitted that this claim for Rs. 39,813.13 is not ]egally permissible on two grounds. According to him, there was dispute as regards the bill for the electrical energy for December 1964 and January, February and March 1965 and that as the dispute was not got resolved through the Electrica] Inspector under section 26(6) of the Electricity Act, the defendant cannot be said to be a defaulter in payment of the bills. His second contention is that at any rate the clause for the payment of Rs. 39,813.13 as stipulated damages would be penal and that under section 74 of the Indian Contract Act the plaintiff would not be able to enforce that clause unless proof is given that the damages to that extent have been suffered. 9. It is true that the meter was not working properly during December 1964 and January, February and March 1965. This is an admitted position. The plaintiff has prepared the bi1ls for these months. These bills are at Exhs. 53, 54, 55 and 56. It is common ground that under the tariff rates the bill is required to be taken into account after determining the maximum KVA demand. This KVA is to be charged at a particular rate, and in addition there will be another item of charges, namely the charges for the units of electricity consumed in a particular month. The maximum KVA demand is required to be determined on the basis of the amperes and the voltage. There is some method of ca]c;llating this maximum demand. This KVA is to be charged at a particular rate, and in addition there will be another item of charges, namely the charges for the units of electricity consumed in a particular month. The maximum KVA demand is required to be determined on the basis of the amperes and the voltage. There is some method of ca]c;llating this maximum demand. Obviously the figure of maximum demand varies if the figures of amperes and voltage change. The plaintiff prepared the bills for the concerned four months on the basis of 80 amperes and 420 voltages. These figures are taken as those which have been arrived at while reassessing the bill for the month of November 1964. The defendant's contention is that th~.plaintiff has taken a wrong basis about thc mad mum ampere load and the voltage. According to him, the maximum ampere load should have, been taken as 70 while the voltage should have been taken as 400 for the month of December 1964 and January 1965 and 410 for February 1965. It is in this manner that he contends that the bills for the consumr..tion of electricity for December 1964 and January and February 1965 should have been less by Rs. 286.20. He has given these figures in the schedule attached to his letter (Ex.. 55) dated 25-5-1965. There is no dispute that the arithmetical calculations made by the plaintiff are correct. The only controversy is as to whether the maximum demand of amperes and voltage as taken by the plaintiff was correct or not. It may be noted that the record about the maximum demand in terms of amperes as well as the maximum voltage that has been utilized by the consumer would primarily be with the consumer, particularly when the meter bad gone out of order. The plaintiff's Superintending Engineer Manohar Rage is examined at Exh. 97, while the defendant has given his evidence at Ex. 121. After the plaintiff had tendered the bills for these four months to the defendant in May 1964 the defendant has no doubt written a letter Ex. 55 dated 25-5-1965. A reference to this letter has already been made just above. The plaintiff by the letter Ex. 97, while the defendant has given his evidence at Ex. 121. After the plaintiff had tendered the bills for these four months to the defendant in May 1964 the defendant has no doubt written a letter Ex. 55 dated 25-5-1965. A reference to this letter has already been made just above. The plaintiff by the letter Ex. 56 dated Il-6-1955 informed the defendant that the KVA has been properly arrived at as per the previous assessment of November 1964 and that if the defendant had any dispute he might pay the amount under protest. The defendant gave a reply Ex. 57 dated 17-6-1965 reiterating his con tention. The plaintiff on 30-6-1965 (vide Ex. 59) wrote to the defendant that in the absence of daily log books of tbe voltage and amperes, the biJls for the concerned four months could not be revised. The defendant was further informed that he should supply the details on the basis of which he had contended that the maximum load and voltage was at a particular 'figure. The defendant was informed that if the bill was not paid the energy supply will be discontinued. The defendant's reply dated 8-7-1965 is at (Ex. 60). In that reply he did not show his willingness to supply the basis on which he had arrived at the maximum load and voltage at a particular figure. Similarly he did not deny that he used to maintain log books which would contain these details. Manohar Bage has stated on oath that the defendant did not supply any such information including the log book. The defendant has fixed his own meters showing amperes and voltage and Rage stated that these meters were indicating meters and not recording meters. This would mean that the meters would indicate the particular amperes and voltage at a particular moment but that indication would change as there would be fluctuation in the amperes and the voltage. It appears that on the basis of these meters log books are maintained in which amperes and voltage are recorded from time to time'. The defen-dant in his evidence at Ex. 121 has admitted that he had maintained the record of the amperes, voltage and expeJlers working on his premises. That record has not been produced by him in the Court. Not only that but the defendant admitted that he did not produce that record before Rage. The defen-dant in his evidence at Ex. 121 has admitted that he had maintained the record of the amperes, voltage and expeJlers working on his premises. That record has not been produced by him in the Court. Not only that but the defendant admitted that he did not produce that record before Rage. The defendant has given a lame excuse for such “non-production before Bage by saying that they were already shown to Sub-Engineer Malu. This Malu is examined as P. W. 2 and he has deposed that no such record had been shown to him. According to him, he asked for the log books but they were not supplied. It is thus clear that for arriving at the correct amperes and voltage the defendant possessed records and he has not made them available either to Rage when the bills for the four concerned months were prepared or to the trial Court when the controversy about the correctness of the bills was being agitated. Under ~hese circumstances, it will not be possible to accept the finding of the trial Court that there was any bona fide dispute to the extent of Rs. 286.20 as far as the bills are concerned. It cann(i)t be doubted that the party which has the relevant record and who has chosen not to show it to Bage or to the trial Court cannot be allowed to urge that the dispute raised by him was a bona fide dispute. In our opinion, the dispute to the extent of Rs. 286.20 was obviously an untenable and unacceptable dispute which the defendant raised in order to evade payment. 10. As to what is to be done if the meter has gone out of order is pro-vided for by condition No.20(c)(vii) in the booklet which forms part of the agreement (P.x. 43). That condition provides that the average of the bills for the preceding three months should be worked out. In the present case, this was not possible as there was no working of the high tension supply for three months or more before November 1964. The trial Court has relied upon section 26(6) of the Electricity Act. That condition provides that the average of the bills for the preceding three months should be worked out. In the present case, this was not possible as there was no working of the high tension supply for three months or more before November 1964. The trial Court has relied upon section 26(6) of the Electricity Act. That section deals with mete7s and sub-section (6) reads as follows: “Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, dpring such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity. Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven day's notice of his intention so to do.” It was contended on behalf of the plaintiff that this section would not come into the picture as there was no dispute that the meter had gone out of order. It was urged by Shri Deshpande that sub-section (6) should apply only if there is a dispute as to whether the meter is or is not correct. According to him, such a dispute has to go to the Electrical Inspector, and if that authority finds that the meter is.not correct, he then estimates the amount of energy supplied during the relevant period. In the present case, there was no dispute that the meter was not correct, and the contention of Shri Deshpande is that a mere dispute about the estimate of supply of energy would not go to the Electrical Inspector unless that dispute is based upon the incorrectness of the meter. In the present case, there was no dispute that the meter was not correct, and the contention of Shri Deshpande is that a mere dispute about the estimate of supply of energy would not go to the Electrical Inspector unless that dispute is based upon the incorrectness of the meter. We do not propose to corr.sider this aspect in detail inasmuch as even assuming that the dispute in question was required to be dealt with by the Electrical Inspector, still no inference can be drawn about the correctness or otherwise of that dispute simply because the plaintiff did not take the matter to the Electrical Inspector. The trial Court has observed that the defendant was justified in refusing to pay the bills as the matter was not taken to the Electrical Inspector. In our opinion, section 26 (6) permits either party to take the matter to the Electrical Inspector. If the defendant wanted to raise a dispute about the correctness of the bills of the concerned four months, there was nothing which prevented him from having recourse to the provision of section 26(6). In this background it is .also material to note the provisions of section 24 of the Electricity Act. That section provides for dis-continuance of supply to the consumer if he neglects to pay the electricity charges. The supplier can discontinue such supply after giving not less than seven days' notice. Sub-section (2) and its proviso read as follows: “Where any difference or dispute which by or under this Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision: Provided that the prohibition contained in this sub-section 'shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electrical Inspector of the amount of the Licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy as they accrue, and the consumer has failed to comply with such request. Tbe above provisions would, therefore, show that no action under section 24 was permissible if the dispute is taken to tbe Electrical Inspector. Tbe above provisions would, therefore, show that no action under section 24 was permissible if the dispute is taken to tbe Electrical Inspector. It would be difficult to accept the contention of Sbri Ghare tbat the defendant who has not chosen to raise any dispute under section 26(6) before tbe Electrical Inspector bas a right to withhold payment and to urge that he has not committed any default. Condition No. 27(b) is also relevant while deciding this factor. It reads as follows: “Any dispute or complaint with regard to the bills shall be made in writing to the local office of the Board and the amount of such bills shall be paid, under protest if necessary within the said period of 20 days. Tbe Tbe amount of bills paid under protest will be regarded as advances to tbe credit of the consumer's account until sucb time, as tbe bills in dispute have been finally settled.” Condition No. 27(a) casts a duty on the consumer to pay the bill witbin 20 days. Under tbese circumstances, we bold tbat tbe defendant was not at all justified in refusing to pay tbe bills for. the concerned four months on the basis that he had a dispute about them. As discussed above, the said dispute was baseless, as neither before Bage nor before the trial Court the defendant has placed any record to show that he had a just contention about the correctness of the bill. Secondly, even assuming that he had raised a proper dispute about these bills, he cannot simply withhold payment. He has to follow the procedure under section 26(6) by taking the matter to the Electrical Inspector. He has to pay the amount if he does not opt for that procedure. The net result, therefore, is that the biBs for the concerned four months were properly assessed bills and non-payment of' tbose bills would constitute a breach of the agreement. 11. In view of the above findings the only question that no survives is as to whether the defendant is liable to pay compensation for, this breach of the contract, and if so what would be the quantum of that compensation. We have already observed that under clause 9 of the contract the defendant-consumer has agreed to pay a certain amount as guarantee IPinimum charges even though those charges may be more than the charges for actual consumption of energy. We have already observed that under clause 9 of the contract the defendant-consumer has agreed to pay a certain amount as guarantee IPinimum charges even though those charges may be more than the charges for actual consumption of energy. It cannot be doubted that such minimum guarantee clause is good and the consumer would, during the continuance of the agreement, be bound to pay the minimum guarantee amount even if the consumption is less. This aspect has been considered by the Punjab High Court in the case of (Watkmg Mayour Co. v. Jullundur Electric Supply Co.)3. The head-note reads as follows:- “A minimum charge is not really a charge which has for its basis the consumption of E]ectrica] energy. It is based on the principle that every consumer's installation involves the licensee in a certain amount of capital expenditure in plant and mains on which he is to have a reasonable return. He gets a return when energy is actually consumed, and when no such energy is consumed by a consumer, he is allowed to charge minimum charges by his licence.” The Gujarat High Court has also taken a similar view in the case of the (Gujarat Electricity Board v. Shri Rajratna Naranbhai Mills Co.)4. The Madras High Court has upheld the minimum guarantee clause in the case of (Natesa Chettiar v. Madras State Electricity Board)5. The relevant head-note reads as follows :- “Whether the consumer takes energy or not, by reason of the covenant, the Board has to keep the supply ready at the defendant's end for being tapped by the defendant whenever he wanted. Elaborate machinery is found in the Act and Rules for fixing the tariff. Section 23(4) of Act IX of 1910 provides for certain factors to be taken into consideration. But the question is whether the provision for the minimum guarantee is just a stipulation by way of penalty or predetermined damages for breach on the part of the consumer or something else. The minimum fixed is only consideration for keeping the energy available to the consumer at his end; it is not a penalty for not consuming a stated quantity of energy. The meaning of the clause was that the minimum rent did not merely cover the actual but that the right to use the current. The minimum fixed is only consideration for keeping the energy available to the consumer at his end; it is not a penalty for not consuming a stated quantity of energy. The meaning of the clause was that the minimum rent did not merely cover the actual but that the right to use the current. The customer had to pay for the right tg use the current, although he did not in fact use it.” The Supreme Court has also construed the minimum guarantee clause in favour of the supplier of energy. The matter arose before the Supreme Court in the case of (Amalgamate Electric Co. v. lalgaon Municipality)6 wherein it is held as follows :- “A clause in an agreementCfor 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 section-23 qf the Act. The clause embodies what is known in com1non parl,ance as doctrine of minimum consumption and is in direct compliance with the proviso to section 22 whith ensures a provision for minimum guarantee for supply of e]ectricity. Licensee is entitled to recover minimum charges in pursuance of that clause.” Shri Ghare relied upon the decision of the Supreme Court in the case of (Maula Bux v. Union of India)7. In that case, the question arose as to whether a condition for forfeiture of a deposit kept by a contracting party would be a penalty. In our opinion, this decision has no relevance while considering the minimum guarantee cJause. Thus, Shri Deshpande, is right when he contends that the minimum guarantee cause is enforceable. This would mean that during the continuance of the contract the consumer will have to pay the minimum guarantee amount if hh consumption is less than the minimum. In all the above cases, the cJaim by the supplier was to recover the minimum guarantee amount during the period when the contract was continuing. Usually the contract for electricity supply contains a clause which permits disconnection of supply if the consumer would commit a default in the payment of the bills. Before the Madras High Court in the above mentioned case of (Natesa Chettiar v. Madras State Electricity Board) there was a ten years agreement from 1954 to 1964. Usually the contract for electricity supply contains a clause which permits disconnection of supply if the consumer would commit a default in the payment of the bills. Before the Madras High Court in the above mentioned case of (Natesa Chettiar v. Madras State Electricity Board) there was a ten years agreement from 1954 to 1964. The consumer failed to pay certain bills and after due notice his supply was discontinued from 31-8-1957. Thereafter the supplier filed a suit to recover the minimum guarantee charges for a period from 31-8-1957 to 17-7-1959. This claim was decreed though the supply was disconnected. It is, however, materia] to note that even though the supply was so disconnected, the contract was not put an end to as it appears that the consumer had the liberty to get the supply restored on payment of all the dues. In the other cases mentioned above the cJaim was made during the period when the contract was subsisting. Thus, the net result is that the minimum guarantee clause would be enforceable and the consumer will have to pay the amount of minimum guarantee as a price for the electricity supply or for the electricity kept ready for supply. 12. In the present appeal, the question is, however, different. The appellant Maharashtra State Electricity Board has not kept the contract alive after discontinuing the'supply. On the contrary, by a notice dated 19-8-1965 (Ex. 63) the Consumer was informed as under:- “Thus you have committed breach and you have failed to observe and perform the condItions and provisions of the said agreement. As per clause 12(c) of the agreement, Seven Days notice is hereby given to you to terminate this Agreement, without prejudice to our claim and rights as per the agreement.” Under clause 12 the supplier is at liberty to terminate the agreement and on such termination the consumer is liable to pay a sum “equal to the aoount of the minimum guarantee for the unexpired minimum period of supply as and by way of LiquidMed Damages. It is thus clear that the amount of Rs. 39,813.13 is not claimed as a minimum guarantee amount during the continuance of the agreement. On the contrary, that amount is claimed as and by way of liquidated damages for breach of the contract. It is thus clear that the amount of Rs. 39,813.13 is not claimed as a minimum guarantee amount during the continuance of the agreement. On the contrary, that amount is claimed as and by way of liquidated damages for breach of the contract. In our opinion, when the claim is for liquidated damages, the legal position about the validity of the minimum guarantee clause would be irrelevant as in such a case one has to find out as to whether the damages or compensation claimed by a party is permissible under section 74 of the Contract Act. As to what will be the effect of a particular amount having been stated in the contract as liquidated damages has been considered by the Supreme Court in the case of (Fateh Chand v. Balkishan Dass)8. The relevant head-note reads as follows:- “Section 74 of the Indian Contract Act is clearly an attempt to eliminate the somewhat elaborate refinements made under the English common law in distinguishing between the stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought j 0 cut across the web of rules and presumptions under the English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty.” The result, therefore, is that under section 74 of the Contract Act where any amount is named as stipulated damages and lor any provision for payment is made in a contract, the party complaining of breach is entitled to receive from the party who has committed a breach a reasonable compensation not exceeding the named amount of liqu idated damages or stipulated penalty. Thus, in effect the mention of minimum guarantee in clause 12 is nothing but naming liquidated damages In a particular fashion The plaintiff-appellant would not, therefore, be entitled to claim that amount of liquidated damages as mentioned in the clause unless the plaintiff proves the quantum of damages. 13. Thus, in effect the mention of minimum guarantee in clause 12 is nothing but naming liquidated damages In a particular fashion The plaintiff-appellant would not, therefore, be entitled to claim that amount of liquidated damages as mentioned in the clause unless the plaintiff proves the quantum of damages. 13. It is true that the plaintiff would have been able to claim the minimum guarantee amount had the plaintiff not terminated the contract but had simply disconnected the supply under clause II. The reason is obvious. Such discontinuance of supply is permissible under section 24 of the Electricity Act. That section says that the discontinuance would continue until all the sums payable together with the expenses incurred in cutting and reconnecting the supply are paid. Not only that but section 24 provides that the dis-continuance cannot continue any longer. This would mean that in case of discontinuance simpliciter, the consumer has a right to get restored the supply of energy on payment of the amount. Thus, the contract is not put an end to similarly in case of such simple discontinuance of supply, the liability of the supplier to keep the supply ready at the door of the consumer will not come to an end as at any moment the consumer can claim back the supply on payment of all the dues. The position, however, would be different it the matter of discontinuance goes beyond simple discontinuance of supply and the supplier puts an end to the contract by exercising the right under clause 12. As soon as the contract is terminated, the supplier is not under any obligation either to supply the energy or to keep the supply ready for the consumer. These rights and liabilities come to an end. After the termination of the contract the only liabilIty of a party committing a breach is to pay compensation for breach of the contract. It is in this way that the minimum guarantee clause will not be very much relevant while determining the quantum of damages. 14. It was next urged that the contract in question is a statutory contract and as such a provision for payment of liquidated damages is binding and enforceable. The contention is that under the Electricity Act a consumer cannot claim electricity unless he agrees to pay the minimum guarantee amount. It was thus arguej that a provision for minimum guarantee has a statutory force. The contention is that under the Electricity Act a consumer cannot claim electricity unless he agrees to pay the minimum guarantee amount. It was thus arguej that a provision for minimum guarantee has a statutory force. In our opinion, there is no provision in the Electricity Act which enables the supplier to stipulate that the damages for breach of contract, would be a particular amount as liquidated damages. We may also observe that under the exception to section 74 of the Contract Act it is only in certain cases that a party committing a brebch is bound to pay the whole of the sum mentioned in the document. But an agreement between the supplier and the consumer making provisions for payment of liquidated damages on breach of contract would not be a document contemplated by that exception. In these circumstances, we are unable to accept the contention of the appellant that the defendant is liable to pay the minimum guarantee amount for the unexpired period of the contract as liquidated damages. 15. Thus, the position is that the defendant-respondent has committed a breach of the contract and is, therefore, liable to pay compensation for such breach of the contract. The mention of minimum guarantee amount for the unexpired period of the contract as liquidated damages would only mean that the supplier would be abJe to get a reasonable compensation not exceeding that amount. However, the supplier will not be able to get any amount without a proof about the quantum of damages suffered by him. It is true that under section 74 compensation is permissible whether or not the actual damage or loss is proved to have been caused. However, this would not mean that there should not be actual damage or loss. What is dispensed with is that in a given case proof thereof may not be insisted. This Court in the case of (S. A. Bhut v. V. N. Jamdar)9 has held as follows:- “No doubt, section 74 says that where a sum is stated in the contract as payable to a party, if a breach thereof is caused by the other party, the Court has power to grant” compensation to the party even though actual loss or damage is not proved. But that does not mean that compensation can be awarded even though no loss whatsoever has been caused. But that does not mean that compensation can be awarded even though no loss whatsoever has been caused. For the very concept of award of compensafion is bound up with loss or damage that results from a breach of contract.” The Supreme Court, in the case of Fateh Chandv. Balkishan Dass (eit. supra), has held as follows:- “The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of 'actual loss or damage” it does not justify tbe award of compensation when in consequence oftbe breach no legal injury at all bas resulted.........” In the present case, there is notbing to suggest that by the breach of the contract any legal injury or loss was caused. All tbat can be said is that a high tension line was already there near tbe premise of the defendant. Plain-tiff's witness Bage bas admitted in bis evidence (paragraph 14) that the point of supply given to tbe defendant's factory was directly below the existing high tension line and that the defendant was given power from that line. In paragraph 15, he has admitted that there is a record about the expenditure incurred for changing from low tension to high tension supply. However, Bage has stated that such record has not been filed. The defendant in paragraph 12 of his deposition has stated that the plaintiff connected the A. B. switch with the overhead H. T. line which already existed with bare wires. The distance between the A. B. switch and the overhead H. T. wire was only 2 feet or so. Thus, a very negligible amount must have been spent by tbe plaintiff. The plaintiff has not alleged or proved that after the termination of the contract there was any surplus energy with the plaintiff and that the plaintiff was not able to sell tbat energy to anybody. On the contrary, it is very much known that the supply of electrical energy is short. There is more demand than the supply. Of course we are not taking this factor of short supply into account. On the contrary, it is very much known that the supply of electrical energy is short. There is more demand than the supply. Of course we are not taking this factor of short supply into account. We will mainly rely upon the position that the plaintiff has neither pleaded nor proved that there remained excess energy which could be sold by the plaintiff to others. Under these circumstances, though the defendant has committed a breach of the contract, the plaintiff would not be entitled to a decree for Rs. 39,813.13 as compensation for that breach. 16. The result is that the appeal as also the cross-objection fail and ale dismissed with no order as to costs. Appeal and Cross Objection dismissed. -----