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Judgment
Sandeep Sharma, J
Plaintiffs have instituted suit at hand for recovery of Rs.74,024,95/- alongwith interest @ 24% per annum against defendants No.1 to 5 on account of electricity tariff charges for the months of November & December, 2007. Though averments contained in the plaint reveal that defendants No.1 to 5 issued a cheque with a view to discharge their liability, but the same was dishonoured and proceedings under Section 138 of the Negotiable Instruments Act were initiated against them in the Court of Judicial Magistrate, Una. On account of non-payment of bills for the months of November and December, 2007, connection was temporarily disconnected vide order dated 4.1.2008 and thereafter repeated notices were given to defendants No.1 to 5 to make the payment good, but, since defendants No.1 to 5 failed to make the payment good, suit at hand came to be instituted against them in this Court. Defendants No.1 to 3 & 5, despite service, chose to remain absent, whereas Mr.T.S. Chauhan, Advocate, filed Power of Attorney on behalf of defendant No.4. Order dated 10.03.2014 suggests that defendants No.1 to 3 and 5 were proceeded ex-parte. On 16.11.2011 following issues were framed:-
"1. Whether the defendants are in arrears of electricity charges payable to the plaintiffs? OPP.
Whether the plaintiffs are entitled to recover a sum of Rs.74,02,495/- alongwith interest @ 24% per annum from the defendants on account of electricity charges? OPP.
Whether the suit is not maintainable against defendant No.4? OPD-4.
Whether the suit is bad for mis-joinder of necessary parties? OPD-4.
Relief."
After framing of the issues, the matter came to be listed repeatedly for recording evidence, but, record reveals that before commencement of the evidence, an attempt for amicable settlement through mediation was also made. It also emerge from the record that Punjab National Bank besides filing application bearing OMP No.423 of 2008 for vacation of stay granted by this Court vide order dated 24.9.2008, whereby defendants No.1 to 5 were restrained from selling, encumbering, transferring or creating charge on the suit land as described in the plaint as well as in the aforesaid order itself, also filed an application bearing OMP No.287 of 2014 under Order 1 Rule 10 of the Code of Civil Procedure for impleadment, but the same was dismissed as withdrawn vide order dated 9.1.2015
After dismissal of aforesaid application filed by Punjab National Bank, an application bearing OMP No.105 of 2015 for impleadment of party defendant in the suit, came to be filed at the behest of defendant No.6. In the aforesaid application, defendant No.6 averred that the suit property, which is subject matter of the instant suit, was purchased by defendant No.1 and was mortgaged with Punjab National Bank. Against the said mortgage, defendant No.1 obtained loan and since defendant No.1 failed to repay the loan amount, Punjab National Bank, being secured creditor, took possession of the mortgaged property under the provisions of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (For short "SARFAESI Act"). Thereafter suit property was put on e-auction by the bank on 16.6.2014 and the same was notified for auction vide advertisement dated 19.8.2014, specifically stating therein that the property in question is free from all encumbrances. Defendant No.6 averred in the application that she being interested, after verifying facts in the revenue record and so also on the basis of advertisement as issued, participated in the auction process and being successful bidder was issued sale certificate by the Bank. Defendant No.6 claimed before this Court that after issuance of sale certificate, bank informed that some interim order was passed by this Court in the instant suit and bank is in process to file application before this Court for vacation of said interim orders. However, subsequently bank informed that application filed by them stands withdrawn, in view of the fact that property already stands sold, and in that process defendant No.6 had no option except to approach this Court by way of application as referred above.
In the aforesaid background, application having been filed by defendant No.6 for impleadment came to be allowed vide order dated 8.7.2015. It is worth mentioning here that defendant No.6, besides getting herself impleaded in the instant proceedings, also filed Civil Suit No.63 of 2015 for recovery of Rs.2,03,45,000/- against Punjab National Bank and Canara Bank, averring therein that pursuant to advertisements dated 18.72014 and 19.8.2014 issued by Bank, as referred to hereinabove, she participated in the auction and deposited a sum of Rs.1,18,45,000/- and Rs.35 lacs respectively being successful bidder. In that suit, defendant No.6 claimed that consequent upon payment made by her, sale certificate dated 5.9.2014 was issued in her favour, but suit property could not be entered in her name on account of interim order passed by this Court in Civil Suit No.85 of 2008. Defendant No.6 in the aforesaid suit has claimed that since she purchased the property in auction on the basis of advertisement issued by the Bank, as referred hereinabove, where it was specifically stated that the property is free from all encumbrances, banks are liable to make good the pecuniary losses suffered by her. In the aforesaid background, suit bearing Civil Suit No.63 of 2015, having been filed by defendant No.6, is also pending adjudication.
While matter was ordered to be listed for recording the evidence of defendant No.4, defendant No.6, by way of an application bearing OMP No.194 of 2020, made an offer to pay a sum of Rs.70 lacs to the plaintiff against the liability of defendants No.1 to 5 and sought direction to the plaintiff to consider and accept the aforesaid offer so that property purchased by defendant No.6 in e-auction is transferred in her name.
Having taken note of averments contained in the aforesaid application, this Court while directing the plaintiff to file reply to the application also directed Executive Director (Personnel) of the plaintiff-Board to remain present in the Court. On 14.9.2020, Shri Sanjiv Kumar Sharma, Executive Director (Personnel) of plaintiff-Board came present before this Court alongwith Mr.Vikrant Thakur, Advocate and stated that offer made by defendant No.6 is acceptable provided interest @ 24% per annum, as has been prayed for, is also awarded over and above the amount due to the plaintiff-Board. Executive Director (Personnel), while inviting the attention of this Court to H.P. Electricity Supply Code, 2009 (hereinafter referred to as "Supply Code") contended that though no concession qua the interest can be given by the plaintiff-Board, but in terms of proviso to clause 7.1.9 of Supply Code, interest so ordered by this Court in the suit having been filed by the plaintiff shall be applicable. Though applicant in his aforesaid application initially made an offer to pay a sum of Rs.70 lacs against the claimed amount of Rs.74,02,495/- but General Power Attorney of defendant No.6, who is otherwise husband of defendant No.6, stated on oath before this Court that defendant No.6 is ready and willing to pay principle sum of Rs.74,02,495/-, as has been claimed by way of the suit at hand. Besides above, General Power of Attorney of defendant No.6, as named above, also stated before this Court that in case aforesaid proposal is accepted by the plaintiff, Civil Suit No.63 of 2015 and Civil Writ Petition No.435 of 2019, filed by defendant No.6, shall also be withdrawn by defendant No.6.
The case was again listed on 9.10.2020, on which date Executive Director of plaintiff-Board expressed readiness and willingness of plaintiff-Board to the said proposal given by defendant No.6 vide OMP No.194 of 2020. Executive Director of plaintiff-Board in his statement on oath before this Court stated that though plaintiff-Board in terms of provisions contained in Himachal Pradesh Electricity Supply Code, 2009 is well within its right to claim interest @ 12% on the delayed payment, but appropriate orders in this regard may be passed by the Court, while disposing of the suit at hand, in terms of settlement arrived inter se parties and the same shall be acceptable to the Board. Executive Director of plaintiff-Board, in his statement made on oath which is on record, fairly stated that in view of aforesaid amicable settlement, plaintiff-Board may be permitted to withdraw the suit at hand.
Having heard learned counsel representing the parties and perused the pleadings adduced on record by respective parties, this Court finds that suit at hand was initially instituted against defendants No.1 to 5, who despite repeated notices failed to pay electricity tariff for the months of November and December, 2007 and nothing is payable by defendant No.6 as far as the present suit is concerned. On account of non-payment of loan availed by defendants No.1 to 5, property owned and possessed by defendants No.1 to 5 was taken over by Punjab National Bank and Canara Bank under SARFAESI Act, but defendant No.6, who had no knowledge/intimation with regard to dues, if any, payable by defendants No.1 to 5 to the plaintiff in the suit at hand, purchased the suit land in e-auction initiated at the behest of banks, as referred above and deposited a sum of Rs.1,18,45,000/- & Rs.35 lacs in the year 2014. Factum with regard to pendency of suit at hand came to the knowledge of defendant No.6 when she, after having received sale certificate qua the property in question purchased by her in e-auction, requested the revenue authorities to transfer the property in her name, but such request/proposal of her could not be materialized on account of interim order dated 24.09.2008 passed by this Court in the instant suit. Though Punjab National Bank by way of filing application for vacation of stay assured defendant No.6 that property purchased by her would be transferred in her name, but, since application filed by the bank concerned was dismissed, defendant No.6 was compelled to get herself impleaded in the instant suit.
Since in the suit at hand defendants No.1 to 3 and 5 stands proceeded ex-parte, defendant No.6, who has already paid substantial amount to the banks for purchase of the suit property, with a view to prevent further loss has made an offer by way of application OMP No.194 of 2020 to pay the decretal amount, which otherwise is due from defendants No.1 to 5 to the plaintiff-Board.
As has been taken note hereinabove, plaintiff-Board is ready and willing to accept the offer made by defendant No.6, but, dispute interse parties, at this stage, is only with regard to levy of interest. General Power of Attorney holder of defendant No.6 has already made statement before this Court that the entire decretal amount of Rs.74,02,495/-shall be paid within a period of two weeks from the date of acceptance of aforesaid proposal.
Mr.Ajay Sharma, learned Senior Counsel, representing defendant No.6, while inviting attention of this Court to the effect that defendant No.6 has already suffered huge loss for no fault of her, contended that in view of fair offer made on behalf of defendant No.6, no interest may be awarded to the plaintiff. But, as has been taken note hereinabove, Executive Director (Personnel) of plaintiff-Board has expressed his inability to give concession qua the interest component and has left the matter to the discretion of this Court. It is not in dispute that defendants No.1 to 3 and 5 already stands proceeded ex-parte and suit property stands taken over by banks on account of non-payment of loan under SARFAESI Act, factum with regard to purchase of the suit property by defendant No.6 in e-auction conducted by banks is also not in dispute, rather stands admitted in the pleadings available on record. Since defendant No.6, who otherwise does not owe anything to plaintiff-Board, has already invested huge amount to purchase the property in question but has not been handed over possession of the property for the last six years and as such she, with a view to avoid further losses, has come forward to discharge the liability of defendants No.1 to 5.
It is matter of record that suit, having been filed by the plaintiff-Board against defendants No.1 to 5, who have otherwise been proceeded ex-parte, is pending for the last 12 years and property of defendants No.1 to 5 stands auctioned on account of non-payment of loan and as such this Court is of the view that it would be in the interest of plaintiff-Board to accept the offer made on behalf of defendant No.6, who is ready and willing to pay the amount, as has been claimed in the suit.
Clause 7.1.9 of Supply Code provides that "if dues are not paid by the consumer, the delayed payment surcharge, as per Tariff Order, shall be levied up to the date of permanent disconnection".
Besides above, it also provides that "the delayed payment surcharge shall not be charged for the period beyond the date of permanent disconnection and instead interest shall be charged on the outstanding amount, for the actual number of days for which such amount remains unrecovered/unadjusted, at a simple interest rate of 12% per annum".
Proviso to aforesaid clause clearly provides that "in case of recoveries through the recovery suits under the relevant law/Code if the competent authority, while passing the order for recovery, orders specific rates to be charged on such dues, the interest rate so ordered shall be applicable".
Aforesaid provisions though stand amended vide Notification dated 3.7.2020 issued by Himachal Pradesh Electricity Regulatory Commission, Shimla, but there is no material change in the same as far as the rate of interest is concerned.
Careful perusal of aforesaid clause 7.1.9 clearly provides that though the delayed payment surcharge shall not be charged for the period beyond the date of permanent disconnection, but interest shall be charged on the outstanding amount for the actual number of days for which such amount remains unrecovered/adjusted, at a simple interest rate of 12% per annum, meaning thereby, as per aforesaid clause contained in the Supply Code, plaintiff can levy simple interest @ 12% per annum on the outstanding amount, if any, after the date of permanent disconnection and as such demand of plaintiff-Board for 24% per annum interest, as has been raised in the suit, is otherwise not tenable/permissible. As per pleadings contained in plaint, defendants were to pay Rs.99,36,020/- towards electric charges to the plaintiff on account of electricity consumed ending February, 2008. The plaintiff after having adjusted security amount of defendants alongwith interest of Rs.28,02,640/- has now raised demand of Rs.74,02,495/- including surcharge by way of suit at hand. Though having taken note of default committed by defendants No.1 to 5 and provisions contained in Supply Code, this Court is of the view that the plaintiff in case succeeds to prove its entitlement qua the amount as has been claimed in the suit shall also be entitled to interest @ 12% per annum, but, as has been taken note hereinabove, defendants No. 1 to 3 and 5, who were defaulter, stand proceeded ex-parte and their property has already been taken over by the bank under SARFAESI Act and as such offer made by defendant No.6, at this stage, if accepted by the plaintiff-Board, shall be definitely in the interest of both the parties. Evidence is yet to be completed in the suit filed by the plaintiff and since principal borrowers i.e. defendants No.1 to 3 and 5 stand proceeded ex-parte, there is every likelihood of another round of litigation for recovery of amount, if any, awarded in the instant suit, especially when the property of defendants No.1 to 3 and 5 stands auctioned by the banks on account of non-payment of loan availed by the defendants No.1 to 5. Even if it is presumed at this stage that the suit of the plaintiff-Board would succeed and it would be held entitled for interest, even then question would remain, "whether plaintiff would be able to realize the decretal amount from the defendants and, if yes then in what time". Moreover, more than 12 years have already elapsed after filing of suit and having taken note of the fact that the defendants stand proceeded ex-parte and their property stands auctioned, it can be safely presumed that the plaintiff-Board may have to wait for another couple of years for realization of its money, if any.
Today, defendant No.6, who is otherwise not liable to discharge the liability of defendants No.1 to 5 and has already purchased the suit property in auction, is ready and willing to pay principle amount of Rs.74,02,495/- which offer, if accepted, appears to be beneficial to the plaintiff-Board, who has otherwise nothing in its hand right now. If the proposal, as made by defendant No.6, is accepted, two other litigations i.e. Civil Suit No.63 of 2015 and Civil Writ Petition No.435 of 2018, pending before this Court inter se same parties, would also come to an end and as such this Court think it proper to accept the proposal for the amount as has been claimed i.e. Rs.74,02,495/-. However, this Court having taken note of the fact that since defendant No.6 for no fault is suffering continuously on account of non-delivery of property purchased by her in auction, this Court is of the view that it would be too harsh to burden defendant No.6, if interest @ 24% per annum, as has been claimed in the present plaint, which rate of interest is otherwise more than that of actual rate of interest i.e. 12% per annum as shown in clause 7.1.9 of the Supply Code and which rate of interest could not have been demanded by the plaintiff, is awarded. But, since plaintiff-Board has already spent considerable time and resources in pursuing the suit at hand, it would be in the interest of justice if defendant No.6 is ordered to pay a sum of Rs.15 lacs in lump sum towards interest and litigation charges in addition to Rs.74,024,95/-, agreed to be paid by General Power of Attorney of defendant No.6 in his statement made in the Court on 28.09.2020 towards the liability of defendants No.1 to 5.
Consequently, in view of above, suit having been filed by the plaintiff-Board is decreed for a sum of Rs.89,02,495/- i.e. (Rs.74,02,495/-, as claimed in the plaint + Rs.15,00,000/-, as awarded by this Court towards interest and litigation charges). Decree sheet be drawn accordingly.
In view of above, defendant No.6 is directed to pay aforesaid amount within a period of four weeks from the date of passing of this order, whereafter plaintiff-Board is directed to issue necessary NOC to defendant No.6 enabling him to produce the same before the revenue authority to effect change in the revenue record, which shall be positively made within a period of one week from the date of making application in this regard by the defendant No.6. Tehsildar concerned is directed to enter mutation as per sale certificate issued by the bank. Court fee be refunded to the plaintiff in accordance with law.
Interim direction, if any, is vacated. All miscellaneous applications are disposed of.