JUDGMENT : Invoking the jurisdiction under Articles 226/227 of the Constitution of India, to assail the order dated 29-12-2001 Annexure-P-16, notice of demand dated 15-10-2004 Annexure-P-21 and the consequential orders dated 8-11-2004 and 17-11-2004 directing recovery of Rs. 2,70,668/- after adjustment of the security amount of Rs. 8,12,105/- Annexures-P-22, P-23 and P-24, this petition has been filed seeking following reliefs : - (a) quash the order Annexure-P- 16; (b) quash the demands made by Annexures-P-21, P-22, P-23 and P-24 and; (c) command the respondent to reduce the contract demand from 1100 K.V.A. to 60 K.V.A. and accordingly work out the T.M.C. charges without any Surcharge and re-calculate the dues and (d) may further be pleased to direct the respondent to adjust the dues as may be worked out against the cash deposit of Rs. 2050467/- and if any balance is found to be due to the petitioner refund the same; (e) the cost of petition may kindly be awarded to the petitioner." 2. It is averred in the petition that petitioner-Company is duly incorporated under the provisions of the Companies Act, 1956 and Mr. S. M. Jain has been authorised on behalf of the company by resolution Annexure-P-1-A to file this petition. Petitioner being HT consumer of M. P. State Electricity Board (for short hereinafter be referred as "Board") entered into an agreement dated 31-3-1985 Annexure-P-2 and supplementary agreement Annexure-P-3 of the contract demand of 976 K.V.A. Later enhanced by 124 KVA, having the total contract demand of 1100 KVA for running the industrial unit. 3. On 25-6-2001 the transformer installed to run the unit was blown, however, intimation was given to the Board by petitioner on the same date at 4.00 A.M. making the request to reduce the contract demand from 1100 KVA to 60 KVA so that the tariff minimum charges (TMC) may be worked out for reduced supply. On 26-6-2001 respondent-Board sought some information from petitioner with respect to cause of breakdown, type of breakdown and its details to enable the Board to take necessary action. In reply petitioner intimated to the Board that the transformer which was blown checked by a A-Class Electrical Contractor and sent for repairs to M/s Transformer & Rectifier India Ltd., Ahmedabad, along with the vouchers of freight challan, crane charges, transportation charges etc. In reply petitioner intimated to the Board that the transformer which was blown checked by a A-Class Electrical Contractor and sent for repairs to M/s Transformer & Rectifier India Ltd., Ahmedabad, along with the vouchers of freight challan, crane charges, transportation charges etc. On 27-6-2001 a reminder was sent to the Board for reducing the contract demand w.e.f. 25-6-2001 and record day-to-day meter reading and factory may be monitored daily. The said transformer has been received after repair on 19-9-2001 and the charges Rs. 3,71,000/- was paid to which all connected documents have again been submitted to Board. Even thereafter without reducing the supply, the Board has issued the bills for a period from 25-6-2001 till 17-7-2001 for an amount of Rs. 5,43,726/- and up-to the period of 20-8-2001 for an amount of Rs. 4,65,320/- and up-to 18-9-2001 for Rs. 7,80,910/-total amount comes to Rs. 17,89,956/-. Petitioner has deposited Rs. 1,09,096/- on 6-8-2001, Rs. 1,55,107/- on 7-9-2001 and Rs. 1,00,000/- on 18-10-2001, total comes to Rs. 2,64,202/-. Thereafter a representation was submitted to reduce the contract demand and bills for the said period, but remained undecided. Being aggrieved of the inaction petitioner filed the writ petition bearing number 2275/2001 which was disposed of vide order dated 21st June, 2004. It was directed that the cause of failure of transformer is a relevant factor which needs to be examined by technical experts in presence of nominee of the petitioner and the dispute be settled as per such report. The Court has not examined the tenability, legality and correctness of the demand on merit and directed that after appointment of the committee of the experts parties i.e. petitioner and Board may submit their documents and the evidence and a reasoned report be submitted. Thereafter tenability of the demand raised by the Board may be examined in terms of the agreement. It was also observed that the report of the committee shall be binding on both the parties, till then no coercive step be taken in furtherance to the impugned demand. Thereafter a Letters Patent Appeal bearing number 287/2004 was filed and during pendency of it Rs. 20 lacs were deposited by petitioner, however, interim protection was directed to not take coercive action of recovery. Thereafter a Letters Patent Appeal bearing number 287/2004 was filed and during pendency of it Rs. 20 lacs were deposited by petitioner, however, interim protection was directed to not take coercive action of recovery. The said LPA was dismissed as not maintainable in view of the decision of Hon'ble the Apex Court in the case of Jamshed N. Guzdar vs. State of Maharashtra, reported in 2005(2) MPLJ (S.C.) 181 = JT 2005(1) SC 370. Thus as per the directions of the learned Single Judge, the committee was constituted who submitted its report as per Annexure-P-20. In the report two members of committee have opined that cause of failure of transformer was not due to any external effects, but it is a 'normal failure'. It has further been observed that as per demand raised by the Board, in terms of the agreement the consumer has to pay tariff minimum charges for the infrastructure developed in arranging the power supply to the consumer. The nominee member has agreed with the cause "normal failure" and opined that failure of transformer is neither due to fault of petitioner nor respondent, or any other's fault, and the reason of failure is technical snag developed internally due to the effect of repeated transient occurred. It has been further opined that occurrence of transient is unavoidable cause in any electrical system, while on the issue of demand observed that Clause 23 (a) needs legal examination due to reason mentioned in my detail note enclosed, without commenting on the demand. In furtherance to the aforesaid report, a demand of Rs. 10,84 lacs was raised on 15-10-2004 and directed to deposit within two weeks. Thereafter deducting the security deposit Rs. 8,12,105/-, the remaining amount of Rs. 2,70,688/- has been ordered to be deposited. However, assailing the action and the recoveries, this petition has been filed. 4. Respondent-Board by filing the reply has not disputed that petitioner is a HT consumer and the existence of the agreements. It is said that Clause 23(a) of the H.T. agreement nor attracted in the facts and circumstances in relation to the closure of the unit on account of their own admitted inability to arrange alternative service or spare transformer by their own showing. It is said that Clause 23(a) of the H.T. agreement nor attracted in the facts and circumstances in relation to the closure of the unit on account of their own admitted inability to arrange alternative service or spare transformer by their own showing. It has further been said that the blown-up of transformer resulting into close down of the factory do not fall within the ambit of the "other unavoidable cause" or "natural calamity" which includes the word 'breakdown'. In fact it is a breakdown in the machinery of the consumer, however, the petitioner would not be entitled to claim any relief in the facts of the present case. It is further said that after commencement of Vidyut Sudhar Adhiniyam, 2001 as per section 9(a) petitioner is having an efficacious alternative remedy to invoke the jurisdiction to determine all the matters by the M. P. Electricity Regulatory Commission (for brevity, in short 'Regulatory Commission'), however, in the light of the judgment of the Apex Court in the case of BSES Ltd. vs. Tata Power Co. Ltd. and others, (2004) 1 SCC 195 this Court cannot entertain petition for the reliefs so prayed, therefore, the petition may be dismissed. 5. Shri Amit S. Agrawal, learned counsel appearing on behalf of the petitioner referring the document Annexure-P/16 has contended that as per the opinion of the Board failure of the equipment, machineries, transformers etc., are not covered under "force majeure", however denied the relief in terms of clause-23(a) of the H.T. Agreement. It is further submitted that as per the Expert Report it is clear that it is a case of normal failure. It is contended that the force majeure and normal failure of the transformer would fall within the purview of the terms as specified in the agreement "unavoidable cause" or "natural calamity" which includes "breakdown". In support of his contention reliance has been placed on a judgment of the Hon'ble Apex Court in the case of MA Dhanrajamal Gobindram vs. M/s Shamji Kalidas and Co. reported in AIR 1961 SC 1285 and in the reference of the judgment of Hon'ble the Apex Court in the case of Northern India Iron and Steel Co. vs. State of Haryana, reported in (7976) 2 SCC 877. reported in AIR 1961 SC 1285 and in the reference of the judgment of Hon'ble the Apex Court in the case of Northern India Iron and Steel Co. vs. State of Haryana, reported in (7976) 2 SCC 877. It is submitted by him that while interpreting the meaning of "force majeure" Hon'ble the Apex Court observed that the breakdown of machinery which though normally not included in vis major are included in force majeure. On the issue of maintainability of petition, it is urged that the said Act came into force on 3rd July, 2001 while the demand has been raised for the cause arose on 25th June, 2001. In the first round of litigation aforesaid issue has not been raised by the respondent, however, the direction was issued by the Court to constitute a committee of the experts to find out the cause how the transformer has been blown, therefore, the objection of maintainability cannot be permitted to be raised in view of principle of "constructive res judicata". The said contention is buttressed relying upon the judgment of Apex Court in the case of Forward Construction Co. and others vs. Prabhat Mandal (Regd.), Andheri and others, reported in AIR 1986 SC 391 . In view of the foregoing it is urged that the petition filed by the petitioner may be allowed. 6. Per contra, Shri Chouhan, learned counsel representing the respondent-Board referring the provisions of section 9(a) of the Act contends that for the relief prayed "the Regulatory Commission", is having exclusive jurisdiction, however, the Court should refuse to entertain the petition. In support of the contention, reliance has been placed on a judgment in the case of BSES Ltd. vs. Tata Power Co. Ltd. and others, (2004) 1 SCC 195 . On merit it is contended that the report submitted by the committee of the experts is binding as per the judgment of this Court in the earlier round of litigation and by the report it is clear that failure of the transformer is not due to external effects, but it is a normal failure. The normal failure cannot be counted within the purview of "other unavoidable cause" or "natural calamity which is called as breakdown", therefore, the demand has rightly been raised by the Board against the petitioner. The normal failure cannot be counted within the purview of "other unavoidable cause" or "natural calamity which is called as breakdown", therefore, the demand has rightly been raised by the Board against the petitioner. Referring Clause 11.1 of the M. P. Electricity Supply Code, 2004 it is urged that the licensee shall not be liable to claim for any loss, in the circumstances as specified in Clause 23(a) of the Agreement, therefore, also petitioner is not entitled to claim any benefit. In view of the foregoing it is urged that petition may be dismissed. 7. After having heard learned counsel for the parties, firstly the objection regarding maintainability of the petition is required to be dealt with. In this context it is suffice to observe that the Act came into force on 3rd July, 2001 while the cause of action arose on 25-6-2001 prior to commencement of the Act. In the first round of litigation in W.P. No. 2275/2001 respondents have not raised this objection, wherein direction to hold an enquiry by the experts and to act upon the said report was issued. The LPA filed was dismissed as not maintainable in view of the judgment of the Supreme Court in the case of Jamshed N. Guzdar (supra). Thereafter as per report of the expert committee demands were raised refusing to work out the T.M.C. on reduced supply denying the benefit of Clause 23(a) of the agreement. Thus it is the second round of litigation challenging the demand raised by the Board, and this petition has already been admitted. However, in such circumstances, in the considered opinion of this Court, objection regarding maintainability of petition on account of having an alternative remedy raised by the respondents is merit-less. Although respondents and petitioner relying upon the judgment of the Supreme Court raised the said contention, but in the facts and circumstances indicated hereinabove for invoking the jurisdiction under Articles 226/227 the alternative remedy is not absolute bar. Thus the objection is hereby repelled. 8. Now on merit, after hearing learned counsel for the parties at length and on perusal of the record it is not in dispute that the petitioner is the HT consumer having connection of 1100 KVA in terms of the agreements Annexures-P-2 and P-3 entered into between the parties. Thus the objection is hereby repelled. 8. Now on merit, after hearing learned counsel for the parties at length and on perusal of the record it is not in dispute that the petitioner is the HT consumer having connection of 1100 KVA in terms of the agreements Annexures-P-2 and P-3 entered into between the parties. It is also not in dispute that the transformer installed for running the Industry was blown up on 25-6-2001 to which immediate intimation was sent to Board on the same date at 4 A.M. In the earlier round in W.P. No. 2275/2001 vide order dated 21st June, 2004 this Court has directed that tenability of the impugned demand is required to be examined by committee of experts whether it is due to petitioner's fault or technical snag, or at whose fault it is blown up, are the questions required to be gone into for determination of demand. The Court in the said context observed in paragraphs 5, 6 and 7 as thus :- "5. Submission of learned counsel for the petitioner was that it is not necessary because the fact that transformer was out of order is not in dispute. He, therefore, contended that there is no need to investigate the cause nor is necessary to direct holding of any fact finding inquiry. I do not agree. In my view, the cause of failure of transformer is one of the relevant factors in this case. It may be that explanation offered by the petitioner may be good or may not be, but in any event it needs to be probed by a technical expert. 6. In a case of this nature, the writ Court cannot be called upon to embark upon such type of inquiry. This can be done only by the Commission, or arbitrator, as the case may be. In my view, in the facts of this case, clause 37 of agreement can be pressed in service or a committee of experts appointed by the Board can be asked to settle such dispute and submit their report giving a right to petitioner to nominate one of their nominees in the committee. 7. In my view, in the facts of this case, clause 37 of agreement can be pressed in service or a committee of experts appointed by the Board can be asked to settle such dispute and submit their report giving a right to petitioner to nominate one of their nominees in the committee. 7. I, therefore, while declining to examine the tenability, legality and correctness of the impugned demand in this writ, direct the Board-the respondent herein to appoint the committee of experts in this field consisting of three persons of which one will be a nominee of petitioner. The committee will examine the case of the petitioner as also examine the tenability of the demand raised by the Board in terms of the agreement and then submit their reasoned report. Needless to observe the committee will allow both the parties i.e. petitioner and Board to submit their case including all documents and evidence. The committee will also, if necessary make spot inspection and examine the causes of failure of transformer as alleged by the petitioner and then submit the report, as to whether demand in question could be raised and if so, to what extent, it is justified or not Rs. The report of committee will be binding on both the parties. Let this be done within three months from the date of this order. Till then no coercive steps to give effect to the impugned demand against petitioner shall be taken." 9. Thereafter on filing L.P.A. No. 287/2004 by petitioner interim orders dated 4-11-2004 and 17-12-2004 were passed that on depositing Rs. 20 lakhs Board shall not take any coercive step pursuance to Annexure-P-19. But the said appeal was dismissed as not maintainable. Thus the direction issued by learned Single Judge holds the field and as per such directions after receiving the report Annexure-P-20 from the experts of committee demand has been raised vide Annexures-P/21, P/22, P/23 and P/24. Thus to determine the issues, the report of expert committee is relevant; however conclusion of the report of the expert committee is reproduced as under :- CONCLUSION Conclusion of Shri A. C. Vyas and Shri R. C. Raisene (member of committee) (i) Committee member concludes that failure of transformer is not due to any external effects but it is a normal failure. (ii) Regarding the tenability of the demand raised by the Board in terms of the agreement it is obvious that consumer has to pay tariff minimum to the Board for the infrastructure developed in arranging the power supply to the consumer. Further there is no any such reason observed in the enquiry which could provides any sort of relief to the consumer for a normal act of failure of the transformer. Conclusion of Shri K. K. Dave (member of committee) Issue No. 1:1 am of the opinion that failure of transformer is neither due to fault of petitioner nor respondent, and any other's fault, as protection had operated, there was no overloading, system voltages were well within limit, maintenance was done & therefore reason of failure is technical snag develop internally due to the effect of repeated transient occurred during service period of transformer. The occurrence of transient is unavoidable cause in any electrical system. (Detail explanation given in note enclosed) Issue No. 2 : The interpretation of clause 23(a) needs legal examination due to reason mentioned in my (Detail note enclosed), therefore, the tenability of demand cannot be commented upon." It is to be noted here that Mr. A. C. "ryas and Mr. R. C. Raisene members of the committee were nominated by the Board Mr. K. K. Dave was nominated by petitioner. Unanimously all three members were of the opinion that the transformer was of 1985 which failed in 1995. After repair it again failed on 25-6-2001. The said failure resulted into blowing of D.O. fuses at consumer premises and tripping of industrial feeder on EIF indication. There was no failure of other equipments and no natural calamity. There was no fire incident, and supply was normal all the time. The member nominated by petitioner further said that in the month of June there was beginning of monsoon which may have adverse conditions for electrical system. Thus referring "J & P transformer book", Power transformer hand book edited by 'Alsthom Transformer Division France", Electrical energy system "Theory-An introduction by OLLE-I-Algerd" and "Transformer by BHEL" opined that it was neither fault of the department nor fault of the consumer and also it is not a case of failure of the transformer due to external effects, but it is a case of normal failure of the transformer. However, at this stage it is to be examined that the phrase "normal failure" to which other members have opined that it is not due to fault of the petitioner or respondent, would fall within the purview of "unavoidable cause" or "natural calamity" called as "breakdown" or not as specified in clause 23 of the agreement. In this context the language of Clause 23(a) and (b) is relevant, hence reproduced as thus :- "23(a) If at any time the Consumer is prevented from receiving or using the electrical energy supplied under this Agreement either in whole or in part through lock-out, strike, riot, insurrection, command of civil and military authority, fire explosion, act of God, other unavoidable cause or natural calamity (hereinafter called the "Breakdown"), then and in any such case, the Consumer on giving notice in writing to the Board of such breakdown shall not be required to pay for a greater supply of electrical energy under this Agreement than the Consumer may require (hereinafter referred to as "the reduced supply") during such time as the said work and premises may be wholly or partially unfit for occupation or use. Provided nevertheless on the expiration of period of Agreement referred to in clause 28 hereof this Agreement shall continue to remain in force for a further period equal in length to the period during which the "reduced supply" under this clause shall have continued and provided also that the Consumer shall pay for the said reduced supply at such rate as under the Board's tariff for the area for the time being in force the Consumer shall elect to be charged. (b) If at any time during the continuance of this Agreement, due to the said breakdown, the Board is prevented from supplying the electrical energy herein contracted, the Board on giving notice in writing to the 'Consumer of such breakdown shall be under no obligation to give supply of electrical energy during such time as the Board may be prevented from giving supply by reason of the said breakdown. But in such event the Consumer shall not be liable to pay any energy not actually supplied by the Board nor shall the period of discontinuance be added to the said period of the Agreement. But in such event the Consumer shall not be liable to pay any energy not actually supplied by the Board nor shall the period of discontinuance be added to the said period of the Agreement. Provided that the Consumer shall pay for any reduced supply which the Board may supply to the Consumer for the time being in lieu of the demand under this Agreement at such rate as under the Board's tariff for the area for the time being in force the Consumer shall elect to be charged." Thus as per the report of experts committee it is apparent that it is not a case, whereby the consumer has prevented from receiving or using electric energy, through lock out, strike, riot, insurrection command of civil or military authority, fire explosion and the act of God. Now it is to be examined that cause "normal failure" would fall in other "unavoidable cause" or in "natural calamity" i.e. "breakdown". 10. By the letter of Board Annexure-P-16 it was intimated to petitioner that failure of equipments, machineries and transformers is not covered under 'force-majeure' conditions. However, denied the relief in terms of Clause 23(a) of the HT Agreement. In such circumstances, meaning of the words "force majeure" and "force-majeure conditions" is required to be seen. As per Black's Law Dictionary the meaning of the word "force majeure" is as under :- "An event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (e.g., floods and hurricanes) and acts if people (e.g. riots, strikes, and wars). In contractual matters the meaning of "force-majeure clause" is as under :- "A contractual provision allocating the risk of loss if performance becomes impossible or impracticable, esp.. as a result of an event or effect that the parties could not have anticipated or controlled." As per the Law Lexicon by T. P. Mukherjee and K. K. Singh Edition 1971 phrase 'force-majeure' has been defined as under :- "Force majeure. as a result of an event or effect that the parties could not have anticipated or controlled." As per the Law Lexicon by T. P. Mukherjee and K. K. Singh Edition 1971 phrase 'force-majeure' has been defined as under :- "Force majeure. The expression "force-majeure" is not a mere French version of the Latin expression "vis-major", and that strikes break down of machinery and such things which, though normally not included in "vis-major", are included in "force-majeure"." The literature on the subject-matter shows that where reference is made to "force-majeure", the intention to save the performing party from the consequences of anything of the nature stated above or over which he has no control." As per the Law Lexicon by P. Ramanatha Aiyar 3rd Edition Reprint 2009 expression "force-majeure" has been defined as under :- "Force majeure. Events outside the control of the parties and which prevents one or both of the parties from performing their contractual obligations." A contractual provision allocating the risk if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled." As per Wharton's Law Lexicon phrase "force majeure" has been defined as under:- "Force majeure, irresistible compulsion, coercion diplomatically recognized as irresistible, Concise Oxford Diet. Compare ACT OF GOD; RESTARAINT OF PRINCES. An event or effect that can be neither anticipated nor controlled." 11. Hon'ble the Apex Court in the case of M/s Dhanrajamal Gobindram (supra) in para 17 observed as under :- "17. McCardie J. in Lebeaupin vs. Crispin, 1920-2 KB 714 has given an account of what is meant by "force majeure", with reference to its history. The expression "force majeure" is not a mere French version of the Latin expression 'Vis major". It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in "force majeure". An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to "force majeure", the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to "force majeure", and even if this be the meaning, it is obvious that the condition about "force majeure" in the agreement was not vague. This is the widest meaning that can be given to "force majeure", and even if this be the meaning, it is obvious that the condition about "force majeure" in the agreement was not vague. The use of the word "usual" makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure vclause, which was in contemplation of parties." 12. On going through the afore quoted and to find out the real meaning of "force majeure" the definition and meaning of the phrase "vis major" is also required to be seen. As per Black's Law Dictionary the meaning of the word "vis major" is as under :- "1. A greater or superior force, an irresistible or overwhelming force of nature; FORCE MAJEURE; Cf. ACT OF GOD. 2. A loss resulting immediately from a natural cause without human intervention and that could not have been prevented by the exercise of prudence, diligence, and care.- Also termed act of nature, act of providence, superior force, irresistible force: vis divina. The word "vis major" has been defined in the Law Lexicon by T. P. Mukherjee and K. K. Singh Edition 1971 as under :- "Vis major. What is 'vis major' is clearly stated in the cases of Nitro Phosphate and Odham's Chemical Manure Co. vs. London and St. Katharine Docks, Co., (1878) 9 Ch. D.503, Nugent vs. Smith, (1876) 1 C.P.D. 423 and Province of Madras vs. I. S. and Co., Machado, AIR 1955 Mad. 519 . In the last of these decisions their Lordships of the Madras High Court, relying on the case Nugent vs. Smith, (1876) 1 C.P.D. 423, have observed that the expression 'act of God' is a mere short way of expressing the proposition that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly and conclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him." As per the Law Lexicon by P. Ramanatha Aiyar, the said phrase is defined as under:- "Vis major. Irresistible force; Act of God. A greater or superior force, an irresistible force. Irresistible force; Act of God. A greater or superior force, an irresistible force. A loss that results immediately from a natural cause without the intervention of man, and could not have been prevented by the existence of prudence, diligence, and care. A natural and inevitable necessity, and arising wholly above the control of human agencies, and which occurs independently of human action or neglect. In the civil law, this term is sometimes used as synonymous with "vis divina " or the act of God." In addition to the aforesaid, to clearly understand the nature of 'Vis major' it has been observed as under :- "The superior force of nature. This phrase comprehends the force of the elements, or force arising from natural causes which are irresistible, such as a violent gale of wind, an earthquake, and c." As per Wharton's Law Lexicon phrase "vis major" has been defined as under:- "Vis major, insuperable accident, irresistible force. See ACT OF GOD. Means 'act of God' is a mere short way of expressing the proposition that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly and exclusively, without human intervention, and that it could not have prevented by any amount of foresight and pains and care reasonably to be expected for him, Baldeo Narain vs. State of Bihar, AIR 1959 Pat 442 " 13. In view of the foregoing, it is apparent that vis major is synonym to the "act of God or vis-divina" meaning thereby the loss result immediately from the natural cause without the intervention of human being and could not have been prevented by the existence of prudence, diligence and care. It can safely be observed that any of the Act which includes violent gale of wind, an earthquake over and above by a natural and inevitable necessity, which is wholly beyond the control of human agency, human action or negligent or neglect of the human being. It can safely be observed that an act of the God, which cannot be prevented by the existence of prudence, diligence and care of human being would call as "vis major". It can safely be observed that an act of the God, which cannot be prevented by the existence of prudence, diligence and care of human being would call as "vis major". While 'force majeure' indicates an event which is out of the control of the human being and prevent one or other party performing their contractual obligations, meaning thereby that the performance of the contractual obligations becomes impossible or impracticable due to an event or effect. It also do not include the act of God or an act of nature by virtue of inevitable necessity. Thus, phrase "vis major" indicates an act and event not within the control of human being or can be prevented by prudence, care and due diligence. 14. In the facts of the present case it is apparent that the transformer was blown which resulted the Unit non-functional time being. After issuance of the directions by this Court to find out the cause of blowing up of the transformer a committee of the experts was appointed. The said committee has given its report. The cause opined by two members of the committee as "normal failure" while third member assigning additional reasons concurred with the opinion "normal failure", but in the reasons it has been specified that it is not a fault either of the petitioner or of the Board. In such circumstances it is required to be seen that blown up of transformer by the cause "normal failure" would fall within the purview of the "force majeure conditions" or "natural calamity" which includes "Breakdown". In the said context the meaning of the word "normal failure" is required to be seen. After consultation with dictionaries and Law Lexicon it may be observed that the meaning of phrase "normal failure" is not available, however, to understand the meaning of the said phrase, meaning of both the words "normal" and "failure" may be consulted from the dictionaries. The meaning of the word "normal" as per Black's Law Dictionary is as under :- "normal, 1. According to a regular pattern; natural <it is normal to be nervous in Court>. The terms describes not just forces that re constantly and habitually operating but also forces that operate periodically or with some degree of frequency. In this sense, its common antonyms are unusual and extraordinary. 2. According to an established rule or norm <it is not normal to deface statues> 3. The terms describes not just forces that re constantly and habitually operating but also forces that operate periodically or with some degree of frequency. In this sense, its common antonyms are unusual and extraordinary. 2. According to an established rule or norm <it is not normal to deface statues> 3. Setting a standard or norm <a normal curriculum was established in the schools> As per New Oxford Advanced Learner's Dictionary the meaning of "normal" is as under :- "1. typical, usual or ordinary; what you would expect; quite/perfectly (=completely) normal * Her temperature is normal. It's normal to feel tired after such a long trip. * Divorce is complicated enough in normal circumstances, but this situation is even worse. *Under normal circumstances, I would say 'yes'. * He should be able to lead a perfectly normal life. * In the normal course of events I wouldn't go to that part of town. * We are open during normal office hours. 2. not suffering from any mental DISORDER; People who commit such crimes aren't normal. As per Collins COBUILD English Dictionary for Advanced Learner's the meaning of "normal" is as under :- "(1) Something that is normal is usual and ordinary, and is what people expect. * He has occasional injections to maintain his good health but otherwise he lives a normal life... The two countries resume normal diplomatic relations.... Some of the shops were closed but that's quite normal for a Thursday afternoon... In November, Clean's bakery produced 50 percent more bread than normal... Life in Israel will continue as normal." As per Wharton's Law Lexicon the meaning of "normal" is as under :- "Normal [fr. Norma, Lat., a rule or precept], opposed to exceptional, that state wherein any body most exactly comports in all its parts with the abstract idea thereof, and is most exactly fitted to perform its proper functions, is entitled normal." Now to understand the meaning of word "failure" it is quoted as under :- As per Black's Law Dictionary the meaning of "failure" is as under :- "1. Deficiency; lack; want. 2. An omission of an expected action, occurrence, or performance." As per New Oxford Advanced Learner's Dictionary the meaning of "failure" is as under :- "1. Lack of success in doing or achieving. The success or failure of the plan depends on you. The attempt was doomed to failure. Deficiency; lack; want. 2. An omission of an expected action, occurrence, or performance." As per New Oxford Advanced Learner's Dictionary the meaning of "failure" is as under :- "1. Lack of success in doing or achieving. The success or failure of the plan depends on you. The attempt was doomed to failure. All any efforts ended in failure, the problem of economic failure and increasing unemployment. She is still coming to terms with the failure of her marriage. 2. A person or thing that is not successful. The whole thing was a complete failure. He was a failure as a teacher. 3. An act of not doing, especially that you are expected to do; the failure of the United Nations to maintain food supplies. Failure to comply with the regulations will result in prosecution. 4. The state of not working correctly or as expected; an occasion when this happens; patients suffering from heart/kidney etc. failure. A power failure plunged everything into darkness. The cause of the crash was given as engine failure. 5. A situation in which a business has to close because it is not successful. 6. A situation in which a crops do not grow correctly and do not produce food." As per Collins COBUILD English Dictionary for Advanced Learner's the meaning of "failure" is as under :- "1. Failure is a lack of success in doing or achieving something, especially in relation to a particular activity. 2. If something is a failure, it is not a success. 3. If you say that someone is a failure, you mean that they have not succeeded in a particular activity, or that they are unsuccessful at everything they do. 4. Your failure to do a particular thing is the fact that you do not do it, even though you were expected to do it. 5. If there is a failure of something, for example a machine or part of the body, it goes wrong and stops working or developing properly. 6. If there is & failure of a business or bank, it is no longer able to continue operating. 7. 5. If there is a failure of something, for example a machine or part of the body, it goes wrong and stops working or developing properly. 6. If there is & failure of a business or bank, it is no longer able to continue operating. 7. If you say that someone has a failure of a particular quality or ability, you mean that they do not have enough of it." As per Wharton' s Law Lexicon the meaning of "failure" is as under :- "Failure and default are synonymous terms, 'Failure' in the dictionary sense, means 'a falling short', 'a deficiency' or 'lack'. Default means omission of that which a man ought to do." 15. Bare reading of the aforesaid it is clear that the meaning of the word "normal failure" in common parlance is that in ordinary and usual course due to default, lack, deficiency and by short fall the system has affected due to omission of man. However, for "normal failure" there must be a short fall or deficiency or lack or default by means of omission which can be crept out by due diligence of a man, must be there. In the context of the facts of the present case due to "normal failure" of the transformer the power supply was ceased to the factory vis-a-vis cessation of power supply which resulted into closure of industrial unit. As per Annexure-P-16 the Board opined that failure of equipment, machinery and transformer is not covered under "force majeure". As per the discussion made hereinabove, it is apparent that an event which is out of control of the human being and prevent one or other party from performing their contractual obligation or its performance becomes impossible or impracticable due to an event or effect thereof would amount to "force majeure". In the said context as per report of the experts the transformer was ceased in its function due to "normal failure" thereby the contractual obligation would not have been performed by the petitioner for a period i.e. from 25-6-2001 to 19-9-2001. In the said context as per report of the experts the transformer was ceased in its function due to "normal failure" thereby the contractual obligation would not have been performed by the petitioner for a period i.e. from 25-6-2001 to 19-9-2001. In this context the report of the Expert Committee may be looked into, whereby the common consensus of all those members was that no natural calamity at the time of blown up of the transformer, no fire incident reported, normal condition reported, while as per the report of the third member, in addition, pointed out that the reason of failure of the transformer due to anybody's fault or due to technical snag is required to be examined referring "GNP Transformer Book", "Power Transformer Hand Book", "Electrical Energy System" "Theory of Transformer by BHEL". It has been observed that the said issue can be examined on the following points :- "(i) Design (ii) Overload (iii) Non operation of protection (iv) Maintenance (v) Prolonged over voltage (vi) Atmospheric discharge (Lightening) (vii) Switching in and switching out transient, (viii) External short circuit." Thereafter it was observed that point number (i) relates to manufacture, point numbers (ii), (iii), (iv) relates to petitioner side, point No. (v) relates to respondent and Point No. (vi) to (viii) are beyond the control of the parties. Point No. (vi) atmospheric discharge and Point (vii) Switching in and switching out transient and Point No. (viii) External short circuit. On these three issues opinion has been given as under :- "Atmosphere disturbance, switching in, switching out and external short circuit:- These aspects are related to transient in electrical system. These repetitive transient conditions are unavoidable. Accumulated effect of these conditions during service period may reduce mechanical strength of insulation, may cause loosening of clamps, reducing the clearance of live parts from earth and damage the equipment accidentally. In support of my above statement I would like to submit few paragraphs from the aforesaid reference which are related to transient indicating detrimental effect on insulation, existence of vibration and stresses in normal operation, reduction of mechanical strength, failure inspire of adequate design, difficulty in measurement of atmospheric discharge etc. are enclosed as Annexure K1. Regarding atmospheric discharge I would like to state that since lightening arrester was provided failure due to this is rare possibility however cannot be routed out cent percent. are enclosed as Annexure K1. Regarding atmospheric discharge I would like to state that since lightening arrester was provided failure due to this is rare possibility however cannot be routed out cent percent. On the basis of above discussion and references made, I am of the opinion that above transient condition had caused either of reduction of mechanical strength of insulation, loosening or clamping, reduction in clearances of live parts with the earth and thereby causing internal short circuit. The insurance surveyor had also given probable cause as under "winding of transformer had been damaged due to some accidental internal short circuiting inside the winding of transformer which is damage to HT & LT coils." 16. Thus as per the discussion made hereinabove and the report of the experts it is apparent that two members have not assigned any reason for the cause "normal failure" while one member in contradistinction assigned various reasons as indicated hereinabove. Bare reading thereof it is apparent that the cause of "failure" of transformer is neither due to the petitioner nor of the respondents nor any other faults. No overloading found, system voltages were well within limit, maintenance was done, however the reason of failure is technical snag developed internally due to the effect of repeated transient occurred during service period of transformer. The occurrence of transient is unavoidable cause in any electrical system. In the said report cause of "failure" of supply due to short fall, deficiency, lack, default by means of omission which can be rectified or crept due to indulgence of the human being is not specified. Thus, in absence of the basic ingredient of the meaning "normal failure" in the report, the incident would fall within the purview of the "force majeure". Therefore, accepting the report of the expert committee and looking to the meaning of the words "force majeure" and "normal failure", in the considered opinion of this Court, the blown up of the transformer is due to "force majeure" which is not due to deficiency or omission on the part of the human being but it is for unforeseen cause beyond the control or expectation of the man. In that view of the matter, the finding recorded by the Board in Annexure-P-16 is hereby set aside. 17. In that view of the matter, the finding recorded by the Board in Annexure-P-16 is hereby set aside. 17. In view of foregoing discussions, in the considered opinion of this Court that the transformer was not blown due to "vis major" conditions and it was blown due to "force majeure", looking to the report of the experts and as per the discussion made hereinabove. The aforesaid act would fall within the purview of the phrase "other unavoidable cause" leading to its meaning "breakdown" due to natural calamity as specified in clause 23(a) of the agreement and in such circumstances, if notice has been given by the consumer to the Board within the time so specified the Board is liable to receive the tariff minimum charges on reduced supply, for the period of the repair of the blown transformer, if the said period is not beyond to 6 months as specified in the agreement. Hence, the documents of demand Annexures-P/21, P/22, P/23 and P/24 are hereby quashed. 18. In view of the foregoing discussion it is held that petitioner and Board are bound to follow Clause 23 (a) of the agreement and accordingly the reduced supply be calculated by the officers of the Board in terms of the agreement. Thus the Board shall take action for preparation of the bills as per tariff minimum charges on reduced supply ignoring the bills Annexures P/21, P/22, P/23, P/24 for the period from 25-6-2001 to 19-9-2001 and the fresh bill be issued accordingly. The surcharge be calculated as per rules on revised bills. It is further made clear that after issuing reduced bill, the amount deposited by petitioner as per order of this Court be adjusted and the remaining amount be refunded back. 19. At this stage, Shri Chouhan learned counsel representing the Board submits that as per Clause 11(1) of M. P. Electricity Supply Code, 2004 and for the reasons so specified in the agreement, petitioner would not be entitled to claim such amount. In the considered opinion of this Court, the aforesaid argument is having no force of law, because the said clause has been introduced by way of amendment in the year 2007. More so, the cause arose is prior to the commencement of the M.P. Electricity Supply Code, 2004, therefore, Clause 11(i) do not attract from retrospective date. In the considered opinion of this Court, the aforesaid argument is having no force of law, because the said clause has been introduced by way of amendment in the year 2007. More so, the cause arose is prior to the commencement of the M.P. Electricity Supply Code, 2004, therefore, Clause 11(i) do not attract from retrospective date. In addition thereto bare reading of clause 11.2 makes it clear that in certain circumstances which are available in the present case and if the act of the petitioner is found within the purview of "force majeure", issuing a notice for the period so specified, benefit for reduced supply can be prayed. Therefore, the said argument of respondent is hereby repelled. 20. Accordingly, this petition succeeds and is hereby allowed, the order Annexure-P-16 is quashed; The demands made by respondents as per Annexures-P-21, P-22, P-23 and P-24 are also quashed. It is directed that the respondents shall prepare the fresh bills of tariff minimum charges on reduced supply along with surcharge for the period 25-6-2001 to 19-9-2001 in view of forgoing directions within a period of one month and after adjusting the amount so deposited by the petitioner in terms of the interim orders of this Court, the remaining amount be refunded back to the petitioner within a period of three months. The entire exercise be completed by the Board within the period of four months from the date of communication of this order. In the facts and circumstances of the case, parties are directed to bear their on costs. Petition allowed.