KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU, THIRUVANANTHAPURAM APPEAL 352/03 JUDGMENT DATED 19-12-2007 PRESENT: JUSTICE SRI. K.R. UDAYABHANU : PRESIDENT SMT. VALSALA SARANGADHARAN : MEMBER 1. Kerala State Electricity Board, rep.by its Secretary, KSEB, Vydyuthi Bhavan, Pattom, Thiruvananthapuram. : APPELLANTS/OPPOSITE 2. The Asst. Executive Engineer, PARTIES Electrical Major Section, Puthenchanthai, Thiruvananthapuram (By Adv. Sri. Sakthidharan Nair) V Madhu S. Nair, Managing Partner, Montecello, Hotel Manhatton, : RESPONDENT/COMPLAINANT T.C. 25/1850, Gandhari Amman Coil Road, Thiruvananthapuram. (By Adv. Sri. P. Praveen & others) JUDGMENT JUSTICE SRI. K.R. UDAYABHANU : PRESIDENT The appellants are the K.S.E.B. authorities faced with an adverse order from the Forum regarding the electricity bills issued to the complainant. The complainant, who is a consumer had alleged that he has been issued with a bill for a sum of Rs. 9951.30/- as alleged arrears due to the K.S.E. B. as on 17.1.90. According to him, he has purchased the premises with respect to which the bill has been issue only on 17.1.90. He had applied for change of ownership with respect to the consumer No. PTA 4304. Subsequently and the same was allowed with effect from 7.11.96 vide proceedings No. DB 8/96-97. According to him the transfer was effected with all assets and liabilities from 7.11.96 onwards only. He was also served with an invoice on 26.12.97 for a sum of Rs. 73,416/- for the period from December 82 to November 97. He had challenged the same vide O.S. 59/98. The second bill for Rs. 9511.30 was served on 6.5.99 alleging that the same is for electric charges for 1/83 and surcharge till the date of issuance of the bill. According to him he is not liable to pay the above amount as his liability starts only from 7.11.96. According to him the bill ought to have been served on him atleast at the time of transfer of ownership of the consumer number. According to him the issuance of the second bill amounted to unfair trade practice. He has sought for setting aside the above bill and for a compensation of Rs. 5,000/-. The K.S.E.B. authorities had contended that the certificate with respect to the transfer of ownership of the premises is issued by the Corporation, Thiruvananthapuram on 26.3.96. The change of ownership as applied was allowed with effect from 7.11.96. As per the procedure an agreement in stamp paper was executed between the assigner (Vijayan K. Nair) and transferee (Madhu S. Nair), ie., the complainant. The transferor had requested to transfer the consumer No. with all existing liabilities. An indemnity bond for transfer of ownership was also executed. The transferee had agreed to indemnify the K.S.E.B. against all possible claims against the transferor and the Board. On 1.2.83 the Asst. Executive Engineer, Electrical Major Section, Puthenchantha had inspected the premises and discovered the theft of electricity by tampering of the meter. A bill of Rs. 44,813.63 was served. As requested by the transferor, he was permitted to remit Rs. 26,413.63/- and the balance amount of Rs. 18,400/- was permitted to be paid on 7.3.83. Instead of remitting the balance amount the transferor filed a suit for injunction before the Sub Court, Thiruvananthapuram as O.S. 120/83. He also filed O.S. 272/83 in Sub Court, Thiruvananthapuram disputing the bill for Rs. 9511.30. On joint trial of the above cases, the Sub Court by a common judgment dismissed the same with cost of the Board. The appeals filed as A.S. 737/87 & 467/87 were also dismissed. The second appeal over judgment in O.S. 120/83 was dismissed by the Hon’ble High Court on 29.9.97. Subsequently there was an enquiry by the Executive Engineer (Vigilance) of the K.S.E.B. and as directed by the Inspector General of Police (Vigilance and Security), K.S.E.B, the Asst. Executive Engineer initiated steps to realize the sum of Rs. 18,400 plus interest etc. ie., altogether Rs. 73,460/-. But the bill for Rs. 9511.30 was omitted to be reissued. Subsequently as directed by the Vigilance wing of KSEB, the Asst. Executive Engineer reissued the bill for Rs. 9511.30 with interest as per letter dated 29.4.99. Clause 15© of the Conditions of Supplying Electrical Energy provides “for the transfer of ownership of the service connection and the clause provides that the entire dues is to be by the transferee at the time of transfer of ownership”. It is mentioned that in the instant case the Asst. Executive Engineer adopted a different procedure and for which he was penalized. It is also mentioned that the transferor and transferee are relatives and the change of ownership etc. was done to evade payment. It is seen that no oral evidence was adduced. Ext. P1 to P5 were marked on the side of the complainant. Ext. B1 to B6 were marked on the side of the opposite parties. It is pointed out that the Forum allowed only a sum of Rs. 18,400/- to be realised with future interest at 14.5%. The Forum ordered that the surcharge claimed in the bill for Rs. 73,416 is illegal and only the principal amount of Rs. 18,400/- with future interest as mentioned was ordered to be paid. It is pointed out that the relief sought was only with respect to the second bill of Rs. 9511.30/- and not with respect to the bill for Rs. 73,416/-. It is also pointed out that the issues involved in the present case were already decided by the Civil Courts and hence the same cannot be raised a fresh in the present proceedings. It is pointed out that although the complainant was not a party to the civil case, evidently the above cases were persued by previous owner subsequent to the purchase of the property by the complainant, only at the instance of the complainant. We find that the Forum has grossly erred in even understanding the relief sought by the complainant. The Forum has granted reliefs which are not sought for by the complainant even. We find that the dispute of the complainant is only that the amount claimed as per Ext. P1 notice dated 6.5.99 ie., Rs. 9,511.30/- , with surcharge etc., which is for the month of January 1983 when the property was owned by the previous owner is illegal. He had purchased the property as per Ext. P4 Sale Deed dtd: 18.1.90. The ownership of the consumer No. PT 4304 of the premises was transferred in his name with effect from 7.11.96 as per Ext. D1 proceedings. According to him, the amount has been claimed much belatedly and that the KSEB ought to have claimed the amount at the time when it was due from the then owner. He has also got a contention that as per Ext. D1 proceedings the ownership of the consumer number has been transferred with all the assets and liabilities with effect from 7.11.96. Hence according to him, the liabilities from 7.11.96 onwards are only due from him. We find that none of the above contentions of the complainant can be sustained. We find that as per the recitals in Ext. P1 Sale Deed, he had undertaken to pay all excess amount if any other than those enumerated, due towards encumbrances. As per Ext. D4 agreement with the KSEB executed by the complainant preceding the proceedings for change of ownership he has agreed that the charges due to KSEB would be the first charge on the property. The contention that the wordings in Ext. D1 proceedings “with all assets and liabilities with effect from 7.11.96 indicated that only the liabilities accrued since 7.11.96 also cannot be upheld. The above wordings encompass the existing liabilities and assets. It is also relevant to note that the previous owner, who was running a hotel was caught for power theft and the invoice for Rs. 40,000 and odd was issued, which subsequently accumulated to Rs. 72,416, which was challenged by the previous owner vide O.S. 120/83 and later by the present complainant vide O.S. 59/98. It is not disputed that the Civil Court dismissed the case of the previous owner as well as that of the complainant. The dues with respect to the current charges January 1983, for which notice was earlier issued to the previous owner was challenged by the previous owner vide O.S. 272/83. O.S. 120/83 and 272/84 were tried jointly and disposed of by a common judgment. The appeal as well as the second appeal was dismissed. The second appeal before the Hon’ble High Court was dismissed as per Ext. D5 dated 3.10.97. It is subsequent to the dismissal of the second appeal by the High Court ie., in S.A. 134/90 that the Ext. B1 notice was issued to the complainant. It is the case of the complainant that he is not a party to the proceedings that culminated in S.A. 134/90 and hence at this belated stage he cannot be made liable for the amount of Rs. 9511.30/- plus interest and surcharge. It is contented by the appellant/KSEB that they had raised the issue of non jointer of necessary parties in the previous proceedings and that the complainant was well aware of the above proceedings. It is also alleged that the previous owner and the complainant are relatives. We find that non-issuance of Ext. P1 earlier to the complainant by the KSEB cannot be found fault with as the liability to pay the above bill was challenged by the previous owner in 1983 itself and as the proceedings were pending since then. Of course there is an administrative lapse as the issuance of the notice has been delayed for about more than one year, since the disposal of S.A. 134/90. But the same is no ground to deny the claim of the KSEB. It is also pertinent to note that vide Ext. D3, the complainant and the previos owner had executed an undertaking before the Asst. Executive Engineer concerned that the transferee ie., the complaint shall be liable for all existing liabilities to the KSEB. The above undertaking is dated 30.7.96 and the same was a prerequisite for the transfer of consumer number. True, Clause 50(3) in the Conditions of Supply stipulates that the transfer of ownership is to be done only after settling the existing liabilities. There is an administrative lapse in not following the statutory prescription also. But we find the above lapse is no reason to deny the right of the authorities to claim the amounts due. We find that the Forum below has grossly erred in considering the issued involved in the proper perspective. The order of the Forum is set aside. The appeal is allowed. JUSTICE K.R UDAYABHANU, PRESIDENT VALSALA SARANGADHARAN, MEMBER AT. KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM APPEAL No. 352/2003 JUDGMENT DATED 19.12.07 AT. | 
