(A) Indian Electricity Act (9 of 1910), Section 24 — Limitation Act (36 of 1963)— Electricity Board— Power of disconnection— Law of limitation does not have the effect of destroying right secured under the Electricity Act — Right to recover arrears due to Electricity Board cannot be lost by any period of limitation— Provisions contained in Section 24 is a special provision to safeguard interest of Electricity Board— Finding of the lower Courts that the demand made by the Electricity Board is barred by limitation and therefore the Board has no right to disconnect, is unsustainable— Power to disconnect the electricity supply is independent of the power of the Board to file a suit for recovery of the dues. Held : By catena of decisions, it is well settled that the power of disconnection is available under Section 24 of the Act and the same is not lost by any period of limitation stipulated in the Limitation Act, 1963. The findings of Courts below that the claim under Exhibit A-18-Demand Notice is barred by limitation and therefore, for recovery of the dues under Exhibit A-18, the Board has no right to disconnect is unsustainable. [Para 15] The power to disconnect the electricity supply is independent of the power of the Board to file a Suit for recovery of the dues. [Para 17] (B) Code of Civil Procedure (5 of 1908), Section 9 — Electricity Act (9 of 1910)— Suit challenging the demand notice issued by the Electricity Board— Appropriate remedy available under the Act— Without exhausting the remedy available under the Act, the suit for permanent injunction restraining the Electricity Board from disconnecting the service connection, is not sustainable— Second appeal allowed. If aggrieved by Exhibit A-18-Demand Notice, the plaintiff ought to have sought for redressal of appropriate remedy available under the Act. If the Provisional Assessment is questioned, the plaintiff must have preferred appeal to the Divisional Engineer, then to the Superintendent Engineer, Chief Engineer and then to the Chairman of the Board. Admittedly, the plaintiff not having exhausted the remedies, rushed to the Civil Court bye-passing the prescribed procedure and authorities under the Act. If the Provisional Assessment is questioned, the plaintiff must have preferred appeal to the Divisional Engineer, then to the Superintendent Engineer, Chief Engineer and then to the Chairman of the Board. Admittedly, the plaintiff not having exhausted the remedies, rushed to the Civil Court bye-passing the prescribed procedure and authorities under the Act. [Para 21] Applying the ratio of the decision in Punjab State Electricity Board v. Ashwani Kumar (1997) 5 SCC 120 : (1998) 1 MLJ 1 without exhausting the remedy under the Electricity Act and the in built procedure of Board proceedings, the plaintiff cannot maintain a Suit for permanent injunction restraining the Board from disconnecting the Service Connection. However, as held by the Supreme Court in Punjab State Electricity Board v. Ashwani Kumar (supra) case, it is open to the plaintiff to avail the remedy of Appeal within a period of twelve weeks from today and raise factual objections before the Competent Authority and the Competent Authority shall consider and dispose of the Appeal on merits. Before filing the appeal, the plaintiff is to be directed to pay the amount in demand in two instalments. [Para 23] RATIONES DECIDENDI (i) “Power to disconnect the electricity supply is independent of the power of the Electricity Board to file a suit for recovery of the dues.” (ii) “Power of disconnection available to the Electricity Board under Section 24 of the Electricity Act, 1910, is not lost by any period of limitation stipulated in the Limitation Act, 1963.” (iii) “Suit for permanent injunction restraining the Electricity Board from disconnecting the service connection, is not maintainable without exhausting the appropriate remedy available under the Electricity Act, 1910.” JUDGMENT 1. This Second Appeal arises out of the judgment of the Lower Appellate Court dated 30.6.1993 in A.S. No. 37 of 1993 on the file of the Subordinate Judge, Vellore, confirming the judgment of the trial Court dated 25.6.1996 in O.S. No. 1177 of 1987 on the file of the Principal District Munsif, Vellore, granting permanent injunction in favour of the first respondent/plaintiff restraining Appellants/Tamil Nadu Electricity Board (for short “Board”) from disconnecting the Service Connection. The unsuccessful Electricity Board is the Appellants. For convenience, parties are referred as per their array in the Suit. 2. The first respondent/plaintiff was running an Ice Factory in Sukkaiah Vadhiyar Street, Vellore. Plaintiffs Service Connection number is S.C. No. AI 344. The unsuccessful Electricity Board is the Appellants. For convenience, parties are referred as per their array in the Suit. 2. The first respondent/plaintiff was running an Ice Factory in Sukkaiah Vadhiyar Street, Vellore. Plaintiffs Service Connection number is S.C. No. AI 344. By comparison of the consumption recorded by the same meter for the periods from 9/81 to 9/82 is abnormally low. The Audit Branch, TNEB, has pointed out the short fall. The Board assessing the short fall at 1,00,000 units and charging Rs. 50,000/- due to arithmetical inaccuracy had issued Exhibit A-18-Demand Notice dated 23.11.1987, calling upon the plaintiff to pay the amount. 3. The case of the plaintiff is that there was no production between September 1981 to August 1982 due to repair of a compressor. According to the plaintiff, due to repair in the compressor, the Unit was not functioning and the same was reported to the Electricity Board stating that there was no consumption of electricity during that period. Inspite of stoppage of running of meter during that period, Board had issued Exhibit A-18-Demand Notice dated 23.11.1987, demanding the plaintiff to pay a sum of Rs. 50,000/- as short fall amount for the period between September 1981 to September 1982. Alleging that the claim under Exhibit A-18-Demand Notice is barred by limitation, plaintiff has filed the Suit for permanent injunction restraining the defendants from disconnecting S.C. No. AI 344. 4. The Board opposed the Suit contending that the Unit was working throughout the period of eleven months and energy was consumed. According to the Board after full rotation of the meter viz., after completion of 1,00,000 units the meter would automatically restart from “1” and thus the consumption noted as 5468 Units on September 1982 is wrong. Giving the particulars of calculation of Unit, the defendants has resisted the Suit. The main defence of the Board was that the plaintiff had rushed to the Court without exhausting the appeal remedies available under the terms and conditions of supply and the Suit was not properly valued. 5. Upon consideration of oral and documentary evidence the trial Court decreed the Suit on the ground that Exhibit A-18-Demand Notice was under assumption and the demand was barred by limitation. 5. Upon consideration of oral and documentary evidence the trial Court decreed the Suit on the ground that Exhibit A-18-Demand Notice was under assumption and the demand was barred by limitation. The trial Court further held that the Board has not proved user of S.C. No. AI 344 for Ice Factory during the said period and Exhibit A-18-Demand Notice levying charges far 1,00,000 Units is based upon presumption. 6. Aggrieved by the trial Court judgment, the Board has preferred Appeal in A.S. No. 37 of 1993 on the file of the Sub-Court, Vellore. Rejecting the contention of the Board, the Lower Appellate Court confirmed the findings of the trial Court and dismissed the Appeal. By referring to Srinivasa Ginning Factory, Srivlliputhur v. Madras State Electricity Board AIR 1971 Mad. 389 and Dalith Singh v. Rajasthan State Electricity Board, Jaipur and Others AIR 1986 Raj. 131 the Lower Appellate Court held that Exhibit A-18-Demand Notice was barred by limitation and held since the claim is barred by limitation,, the Board cannot disconnect the Service Connection. 7. At the time of admission, the following substantial questions of law were formulated for determination of the Second Appeal: 1. Whether in the light of the evidence available on record, the case of the appellant Board has not been established and if so, whether the appellant Board is not entitled to demand the amount due towards the current consumption charges which were omitted to be collected from the plaintiff? 2. Whether the finding of the Lower Appellate Court to the effect that the demand of the Appellant Board is without basis is right, particularly, in the light of the observation made that the ice factory was running during that time? 3. Whether the Courts below were right in applying the provisions of the Indian Limitation Act to the facts and circumstances of this case? 8. Challenging the concurrent findings of Courts below, the learned counsel for the appellants-Board Mr. N. Muthusami contended that the power of the appellants-Board to collect arrears of current consumption charges is not lost by Limitation Act. The learned counsel further contended that as per Section 24 of the Indian Electricity Act 1910, discontinuance of supply to consumer is without prejudice to the right of the Board to recover charges. N. Muthusami contended that the power of the appellants-Board to collect arrears of current consumption charges is not lost by Limitation Act. The learned counsel further contended that as per Section 24 of the Indian Electricity Act 1910, discontinuance of supply to consumer is without prejudice to the right of the Board to recover charges. The learned counsel further submitted that arithmetical calculation has been shown in Exhibit A-18-Demand Notice and the Courts below erred in ignoring the contents of Exhibit A-18. It was further submitted that appellants-Board has produced Exhibits B-1 and B-2 to prove that the plaintiff was carrying on business and while so, Courts below erred in saying that the Board has not proved the functioning of the Unit. 9. Supporting the findings of Courts below, the learned counsel for the respondents Mr. K. Govi Ganesan submitted that Exhibit B-2-Certificate issued by Commercial Tax Officer, Vellore (Rural), will not be sufficient to prove that the Unit was working. Placing reliance upon the decision rendered in Srinivasa Ginning Factory, Srivilliputhur v. Madras State Electricity Board (supra) , the learned counsel further submitted that the limitation for filing the Suit for recovery of current consumption charges or arrears of consumption charges is governed by Articles 14 and 15 of the Limitation Act and Exhibit A-18-Demand Notice issued five years after the arrears period is barred by limitation and there is no reason warranting interference with the concurrent findings of the Courts below. 10. The facts relating to the Appeal had already been referred to above in the narration of the pleadings. There is no dispute that Exhibit A-18-Demand Notice was issued levying Rs. 50,000/- being the short fall for the period from 9/81 to 9/82 omitted to be billed in. For the plaintiff Service Connection number S.C. No. AI 344, the Service Connection was also sought to be disconnected. Since, Exhibit A-18-Demand Notice is dated 23.11.1987, both Courts below concurrently held that the demand for short fall ought to have been made within a period of three years from 1982 and Exhibit A-18-Demand Notice issued on 23.11.1987 is barred by limitation. 11. It is the consumer, who has come to the Court challenging Exhibit A-18-Demand Notice and seeking for permanent injunction restraining the Board from disconnecting. In this context, Section 24 of the Indian Electricity Act 1910, assumes (for short “Act) significance. 11. It is the consumer, who has come to the Court challenging Exhibit A-18-Demand Notice and seeking for permanent injunction restraining the Board from disconnecting. In this context, Section 24 of the Indian Electricity Act 1910, assumes (for short “Act) significance. A right is conferred on the Board under Section 24 of the Act to make demand for payment of the charges and the consumer on neglecting to pay the same, Board has the power to disconnect the supply. The right to disconnect is absolutely independent of Board’s right to recover the dues. 12. Section 24(1) of the Indian Electricity Act 1910, is as follows: “24. Discontinuance of supply to consumer neglecting to pay charge – (1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days’ notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer.” Considering the scope of Section 24 of the Act, in S.M. Amarchand Sowear v. Tamil Nadu Electricity Board (1999) 1 CTC 289 , Justice K.P. S ivasubramaniam (as His Lordship then was) has held as follows: “The fact that the right to disconnect is independent of recovery of the dues is made clear by the expression “without prejudice” to his right to recover such charge or other sum by suit. It is up to the Board to file a suit or not and if the board seeks to file a suit, it should be filed within the period of limitation. But the said right to file a suit for recovery may or may not be exercised by the Board but the right to disconnect the supply is always available and is not circumscribed by any limitation nor is it dependent on the existence of the Board’s right to recover the dues by filing a suit. But the said right to file a suit for recovery may or may not be exercised by the Board but the right to disconnect the supply is always available and is not circumscribed by any limitation nor is it dependent on the existence of the Board’s right to recover the dues by filing a suit. Therefore the limitation, which is applicable to the Board for filing a suit is irrelevant and hence the objection taken by the consumer cannot be sustained. This is very obvious on a plain reading of Section 24.” 13. In Swastic Industries v. Maharashtra State Electricity Board AIR 1997 SC 1101 : (1997) 9 SCC 465 : JT 1997 (2) SC 328 , the Supreme Court has held as follows: “The right to file a suit is a matter of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the suit and the limitation has been prescribed to file the Suit, it does not take away the right conferred on the Board under Section 24 to make demand for payment of the charges and on neglecting to pay the same. They have the power to discontinue the supply or cut-off the supply, as the case may be, when the consumer neglects to pay the charges. The intendment appears to be that the obligation are mutual.” 14. In Asmath Begum v. Tamil Nadu Electricity Board, Mattur (1997) 3 CTC 527 , Justice Raju (as His Lordship then was) has held that the law of limitation is applicable to and only governs action instituted before competent civil Court or before statutory authority. Law of limitation does not have the effect of destroying right secured under Electricity Act. Right to recover arrears due to Electricity Board cannot be lost by any period of limitation stipulated in Limitation Act. Provisions contained in Section 24 is special provision to safeguard interest of Electricity Board. Amount due to Board could not be prevented from being recovered by having recourse to Section 24 of Electricity Act. 15. Thus, by catena of decisions, it is well settled that the power of disconnection is available under Section 24 of the Act and the same is not lost by any period of limitation stipulated in the Limitation Act, 1963. Amount due to Board could not be prevented from being recovered by having recourse to Section 24 of Electricity Act. 15. Thus, by catena of decisions, it is well settled that the power of disconnection is available under Section 24 of the Act and the same is not lost by any period of limitation stipulated in the Limitation Act, 1963. The findings of Courts below that the claim under Exhibit A-18-Demand Notice is barred by limitation and therefore, for recovery of the dues under Exhibit A-18, the Board has no right to disconnect is unsustainable. 16. Placing reliance upon Srinivasa Ginning Factory, Srivilliputhur v. Madras State Electricity Board (supra) , the Lower Appellate Court held that the demand under Exhibit A-18-Notice is barred by limitation. The said decision arose out of Section 60-A of the Electricity (Supply) Amendment Act 1966, which enables the Board to recover the amount due to it within three years of the Act coming into force in 1966. Since the dispute arose under Electricity (Supply) Amendment Act, in the facts and circumstances of the case, it was held that the limitation for filing the Suit to recover electricity charges subsequent to the Board coming into existence is governed by Articles 14 or 15 of the Limitation Act. The ratio of the above decision cannot be applied to the case in hand where the plaintiff seeks for permanent injunction restraining the Board from disconnecting the Service Connection. 17. As discussed earlier, the power to disconnect the electricity supply is independent of the power of the Board to file a Suit for recovery of the dues. Exhibit A-18-Demand Notice contains the “Consumption Pattern” and for the period of 13 months viz. , from 9/81 to 9/82 only 5468 Units were recorded as noted under: “The reading is detailed as 8/81..66462 6.9.1982..71930 5468 units.” From Exhibit A-18-Demand Notice, it is seen that an average of 5000 Units per month was recorded from 10/82 onwards. On comparing the consumption recorded by the meter for the earlier and the subsequent periods, in the impugned notice the Board said that the consumption recorded for 13 months from 9/81 to 9/82 was abnormally low. 18. According to the appellants, the Ice Factory of the plaintiff was working through out and for the entire period of eleven months, the energy was consumed without any break. 18. According to the appellants, the Ice Factory of the plaintiff was working through out and for the entire period of eleven months, the energy was consumed without any break. It is the further case of the Board that after full rotation of the meter viz., after completion of 1,00,000 Units the meter automatically restart from 1 and thus the consumption noted on September 1982 was 5468 Units. Stating that there was arithmetical inaccuracy and there was short fall in the charges and there was a short fall of 1,00,000 Unit the Board has levied Rs. 50,000/- as calculated under: “Meter reading as on August 81 66462 Units One complete rounded of 1,00,000(-) (-) 1,00,000 Units Consumption 33538 Units Reading as on 6.9.1982 71930 Units Total units consumed 1,05,468 Units Less: already billed 5,468 Units Short fall 1,00,000 Units Short fall amount @ 0.50 Paise per unit Rs. 50,000/-” 19. According to the plaintiff, the Ice Factory was not functioning between September 1981 to August 1982 and that the same was brought to the notice of the Board and therefore, the demand is not sustainable. Both the Courts below held that there was no basis for demand for short fall of 1,00,000 Units and therefore, the levy is not justified. The plaintiff is said to have sent the letters Exhibits A-5 and A-6 informing the Board about the nonfunctioning of the Unit during the relevant time and requesting to pay minimum charges. The learned counsel for the plaintiff has submitted that inspite of repeated requests, there was no response from the Board and they have not inspected the premises. The Courts below held that when the Unit remained idle, the demand under Exhibit A-18 is based on assumption. 20. The Courts below were not right in arriving at the conclusion that Exhibit A-18-Demand Notice was based on assumption. To show that the Unit was functioning the Board has produced Exhibit B-2-Certificate issued by Commercial Tax Officer, Vellore (Rural), which contains the total turn over and taxable particulars for the years of assessment 1981-82, 1982-83 and 1983-84 of Ice Factory of the plaintiff. When Board has produced Exhibit B-2-Certificate showing that the plaintiff was carrying on business the Courts below were not right in holding that the Board has not proved user of the electricity. When Board has produced Exhibit B-2-Certificate showing that the plaintiff was carrying on business the Courts below were not right in holding that the Board has not proved user of the electricity. In fact, when the plaintiff has approached the Court seeking permanent injunction, the plaintiff ought to have produced acceptable evidence to show that the Unit was not functioning. 21. In any event, if aggrieved by Exhibit A-18-Demand Notice, the plaintiff ought to have sought for redressal of appropriate remedy available under the Act. If the Provisional Assessment is questioned, the plaintiff must have preferred appeal to the Divisional Engineer, then to the Superintendent Engineer, Chief Engineer and then to the Chairman of the Board. Admittedly, the plaintiff not having exhausted the remedies, rushed to the Civil Court bye-passing the prescribed procedure and authorities under the Act. 22. In Punjab State Electricity Board v. Ashwani Kumar (1997) 5 SCC 120 : (1998) 1 MLJ 1 , the Supreme Court has held that in a Suit for injunction restraining Electricity Board from recovering electricity dues filed by respondent consumer, jurisdiction of the Civil Court is barred by necessary implications Observing that by necessary implication Suit is not maintainable, the Supreme Court has held as under: “8. The question then arises whether the civil Court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri Goyal, learned senior counsel, that the objections were raised in the written statement as to the maintainability of the suit but the same were given up. Section 9 of the C.P.C. provides that the civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication barred. Such suit would not be maintainable. It is true that ordinarily, the civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implication, the cognizance of the civil cause has been excluded. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implication, the cognizance of the civil cause has been excluded. As a consequence, the civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (supply) Act and the Instructions issued by the Board in that behalf from time to time as stated above. 9. Shri Goyal has contended that the authorities do not hear the parties, nor give a reasoned order. Therefore, the parties cannot be precluded to avail of the remedy of a suit. We cannot accept such a broad and generalised proposition. When the provision for appeal by way of review has been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the objections raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not satisfied with the order passed by the Board/appellate authority, can avail of the remedy available under Article 226 of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course it is not like a judgment of a civil Court......” 23. Applying the ratio of the above decision without exhausting the remedy under the Electricity Act and the in built procedure of Board proceedings, the plaintiff cannot maintain a Suit for permanent injunction restraining the Board from disconnecting the Service Connection. However, as held by the Supreme Court in Punjab State Electricity Board v. Ashwani Kumar (supra) case, it is open to the plaintiff to avail the remedy of Appeal within a period of twelve weeks from today and raise factual objections before the Competent Authority and the Competent Authority shall consider and dispose of the Appeal on merits. Before filing the appeal, the plaintiff is to be directed to pay the amount in demand in two instalments. 24. When the Courts below have arrived at the conclusion by ignoring the material evidence, High Court’s interference with the concurrent findings is justified. Before filing the appeal, the plaintiff is to be directed to pay the amount in demand in two instalments. 24. When the Courts below have arrived at the conclusion by ignoring the material evidence, High Court’s interference with the concurrent findings is justified. When the Courts below have not appreciated the evidence and when the findings recorded are perverse overlooking the well settled principles of law, the High Court would certainly interfere with the findings of the Courts below. The findings of the Courts below are vitiated due to misapplication of law and are liable to be set aside. 25. In the result, The judgment of the Lower Appellate Court dated 30.6.1993 in A.S. No. 37 of 1993 on the file of the Principal District Munsif, Vellore (arising out of the judgment of the trial Court dated 25.6.1996 in O.S. No. 1177 of 1987 on the file of the Subordinate Judge, Vellore) is set aside and this second appeal is allowed. The Suit filed by the First respondent/ plaintiff in O.S. No. 1177 of 1987 on the file of the Subordinate Judge, Vellore, stands dismissed. The respondents are directed to pay the amount of demand under Exhibit A-18-Notice in two instalments, payable within eight weeks from the date of this order. The first instalment is payable within four weeks from the date of this judgment and the second instalment is payable within four weeks thereafter. On payment of the amount of demand, the respondents are at liberty to file Objection/Appeal before the appropriate Authorities within a period of twelve weeks from the date of this judgment, if so advised. If any such appeal is preferred, the Authorities shall consider the same on merits. The Objection/Appeal shall be entertained only after compliance with the direction to pay the amount of demand. There shall be no order as to costs. Second appeal allowed.