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TMI Blog2021 (10) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... CC Report), this Court came to the conclusion that what is barred Under Section 56(2) is only the disconnection of supply of electricity. In other words, it was held by this Court in the penultimate paragraph that the licensee may take recourse to any remedy available in law for the recovery of the additional demand, but is barred from taking recourse to disconnection of supply Under Section 56(2). The bar actually operates on two distinct rights of the licensee, namely, (i) the right to recover; and (ii) the right to disconnect. The bar with reference to the enforcement of the right to disconnect, is actually an exception to the law of limitation. Under the law of limitation, what is extinguished is the remedy and not the right. To be precise, what is extinguished by the law of limitation, is the remedy through a court of law and not a remedy available, if any, de hors through a court of law. However, Section 56(2) bars not merely the normal remedy of recovery but also bars the remedy of disconnection. This is why the second part of Section 56(2) is an exception to the law of limitation. It appears from the narration of facts in paragraph 2 of Rahamatullah Khan that this Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tante Clause with respect to what is contained in any other law, regarding the right to recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed Under Sub-section (2) will not start running. So long as limitation has not started running, the bar for recovery and disconnection will not come into effect. Hence the decision in Rahamatullah Khan and Section 56(2) will not go to the rescue of the Appellant.
Conclusion - i) The raising of an additional demand due to a billing error does not constitute a deficiency in service under the Consumer Protection Act, 1986. ii) Section 56(2) of the Electricity Act, 2003, bars both the recovery of dues and the disconnection of supply after the limitation period, but the period starts from the issuance of the bill. iii) The decision in Rahamatullah Khan is factually distinguishable and does not apply to the present case concerning deficiency in service.
Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... he interim order, this Court modified the stay Order on 19.08.2014 directing the Appellant to pay to the first Respondent herein, 50% of the demand amount within six weeks with a condition that in case the Appellant succeeded, the said amount shall be refunded with interest @ 9% p.a. Accordingly, the Appellant has paid a sum of Rs. 54,03,293/-, on 24.09.2014. The Appellant claims to have already paid a sum of Rs. 13,50,000/- on 9.10.2009 itself and this amount, together with the amount deposited on 24.09.2014 pursuant to the interim order of this Court, constituted 50% of the amount as demanded in short assessment notice dated 11.09.2009. 8. The sheet anchor of the case of the Appellant is Section 56(2) of the Act and the exposition of law made by this Court in the decision in Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam limited and Anr. v. Rahamatullah Khan alias Rahamjulla (2020) 4 SCC 650. 9. Before we proceed to consider the statutory provision and the decision of this Court relied upon by the Appellant, it is relevant to take note of the fact that the Appellant never disputed the correctness of the claim of the Respondents that the multiply factor (MF) to be applied wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) what is the meaning to be ascribed to the term "first due" in Section 56(2) of the Act; (ii) in the case of a wrong billing tariff having been applied on account of a mistake, when would the amount become first due; and (iii) whether recourse to disconnection may be taken by the licensee after the lapse of two years in the case of a mistake. 12. On the first two issues, this Court held that though the liability to pay arises on the consumption of electricity, the obligation to pay would arise only when the bill is raised by the licensee and that, therefore, electricity charges would become "first due" only after the bill is issued, even though the liability would have arisen on consumption. On the third issue, this Court held in Rahamatullah Khan (supra), that "the period of limitation of two years would commence from the date on which the electricity charges became first due Under Section 56(2)". This Court also held that Section 56(2) does not preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation in the case of a mistake or bonafide error. To come to such a conclusion, this Court also referred to Section 17(1)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (as held in paragraphs 9.1 to 9.3 of Rahamatullah Khan), then the question of allowing licensee to recover the amount by any other mode but not take recourse to disconnection of supply would not arise. But Rahamatullah Khan says in the penultimate paragraph that "the licensee may take recourse to any remedy available in law for recovery of the additional demand, but barred from taking recourse to disconnection of supply Under Sub-section (2) of Section 56 of the Act". 17. It appears from the narration of facts in paragraph 2 of Rahamatullah Khan (supra) that this Court was persuaded to take the view that it did, on account of certain peculiar facts. The consumer in that case was billed under a particular tariff code for the period from July-2009 to September-2011. But after audit, it was discovered that a different tariff code should have been applied. Therefore, a show cause notice was issued on 18.03.2014 raising an additional demand for the period from July-2009 to September-2011. Then a bill was raised on 25.05.2015 for the aforesaid period. Therefore, the consumer successfully challenged the demand before the District Consumer Forum, but the Order of the District Forum wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of "escaped assessment" and not "deficiency in service". 22. In fact, even before going into the question of Section 56(2), the consumer forum is obliged to find out at the threshold whether there was any deficiency in service. It is only then that the recourse taken by the licensee for recovery of the amount, can be put to test in terms of Section 56. If the case on hand is tested on this parameter, it will be clear that the Respondents cannot be held guilty of any deficiency in service and hence dismissal of the complaint by the National Commission is perfectly in order. 23. Coming to the second aspect, namely, the impact of Sub-section (1) on Sub-section (2) of Section 56, it is seen that the bottom line of Sub-section (1) is the negligence of any person to pay any charge for electricity. Sub-section (1) starts with the words "where any person neglects to pay any charge for electricity or any some other than a charge for electricity due from him". 24. Sub-section (2) uses the words "no sum due from any consumer under this Section". Therefore, the bar Under Sub-section (2) is relatable to the sum due Under Section 56. This naturally takes us to Sub-section (1) which deals sp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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