M/S PREM COTTEX versus UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ORS.

Citation: [2021] 8 S.C.R. 645 · Decided: 05-10-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Dismissed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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M/S PREM COTTEX
v.
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ORS.
(Civil Appeal No. 7235 of 2009)
OCTOBER 05, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Consumer Protection Act, 1986 – 2(1)(g) – Deficiency in
service – When not – Additional demand raised by respondent no.3
alleging short billing in view of wrong multiply factor (MF) applied
in the bills raised for particular period – Challenged by appellant
inter alia pleading bar u/s.56, 2003 Act – Complaint dismissed by
National Consumer Dispute Redressal Commission – On appeal,
held: Before going into the question of bar u/s.56(2), the consumer
forum is obliged to find out at the threshold whether there was any
deficiency in service – Raising of an additional demand in the form
of short assessment notice, on the ground that the multiply factor
was wrongly mentioned in the bills raised during particular period,
does not tantamount to deficiency in service – If a licensee discovers
in the course of audit or otherwise that a consumer has been short
billed, it is entitled to raise a demand – So long as the consumer
does not dispute the correctness of the claim made by the licensee
that there was short assessment, it is not open to the consumer to
claim that there was any deficiency – Appellant never disputed the
correctness of the respondents’ claim that the MF to be applied was
10, but it was wrongly applied as 5 – National Commission correctly
pointed out that it is a case of “escaped assessment” and not
“deficiency in service” – Respondents not guilty of any deficiency
in service – Complaint rightly dismissed – Electricity Act, 2003 –
s.56(2).
Electricity Act, 2003 – s.56(2) – Bar under – Held: Bar u/
s.56(2) operates on two distinct rights of the licensee, (i) the right
to recover (ii) the right to disconnect – Bar with reference to the
enforcement of the right to disconnect, is an exception to the law of
limitation – Limitation Act, 1963.
Electricity Act, 2003 – s.56(1) – Impact of, on s.56(2) –
Discussed.
[2021] 8 S.C.R. 645
645
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
Dismissing the appeal, the Court
HELD: 1.1 The appellant never disputed the correctness
of the claim of the respondents that the multiply factor (MF) to
be applied was 10, but it was wrongly applied as 5.  A careful
reading of Section 56(2), Electricity Act, 2003 would show that
the bar contained therein is not merely with respect to
disconnection of supply but also with respect to recovery. If Sub-
section (2) of Section 56 is dissected into two parts it will read as
follows :-(i) No sum due from any consumer under this Section
shall be recoverable after the period of two years from the date
when such sum became first due; and (ii) the licensee shall not
cut off the supply of electricity. Therefore, 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. 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.
The second part of Section 56(2) is an exception to the law of
limitation. Once it is held that the term “first due” would mean
the date on which a bill is issued, (as held in para 6.9 of
Rahamatullah Khan) and once it is held that the period of
limitation would commence from the date of discovery of the
mistake (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”.The decision in Rahamatullah Khan
is distinguishable on facts. [Paras 9, 14-16 and 18][652-G-H;
653-A-F; 654-B]
Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam
limited and Anr. vs. Rahamatullah Khan alias
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Rahamjulla (2020) 4 SCC 650:[2020] 2 SCR 929 –
distinguished.
1.2 Even oth

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