Heard learned counsel for the appellant. None appears for the respondent.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The factual matrix of the case of the complainant, in nutshell is that the complainant has got electricity from OP on executing an agreement on 06.05.2014 and has paid Rs.1,53,470/- as security deposit. It is alleged inter-alia that after two years of running of the Chuda Mill the complainant sold the property to OP No.2 who before obtaining fresh power supply deposited the security amount. Thereafter the complainant got the NOC after clearing all dues. However, the complainant was not refunded the security deposit from the OP. He requested them several time but he could not get same. Therefore, the complaint was filed.
4. The OP filed written version stating that the complainant has availed the electricity on execution of agreement and that agreement was made for five years but he sold away the establishment to OP No.2 who took the fresh power supply but the facts remained that the OP made agreement for five years but at the end of two years he terminated the agreement and as such the OP is entitled to get back the demand charge of Rs.2,77,200/- from the complainant for their rest period of agreement. Therefore, they submitted that the security amount would be adjusted against deposit of Rs.2,77,200/-. Therefore, they have no deficiency in service on their part.
5. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“ Having observation reflected it is directed that, OP No.1-Manager(Electrical)-cum-Executive Engineer,KED-I,Kendrapara shall take necessary steps to refund the security amount of the complainant of Rs.1,53,470/- (Rupees one lakhs fifty three thousand four hundred seventy only) with 6 % S.I. calculating from dt.15.11.2016 (The date of issue of NDC) till its realization and to pay Rs.2,000/- (Rupees Two thousand only) as cost of litigation. The ordered amount shall be paid to the complainant within one month of receipt of this order, failing which 9 % interest will be charged for the delayed period and action will be initiated as per the provisions C.P.Act,1986 for non-compliance of the order.
Complaint is allowed in part with cost.”
6. Learned counsel for the appellant submitted that learned District Forum has failed to consider the written version filed by the OP with proper perspectives. According to him Regulation-16 read with Regulation 19 & 22 of OERC Code,1998 clearly reveal that the complainant has to apply 1st for terminating of the agreement after clearing all dues and after that he is to transfer the establishment to Op No.2 who is to apply for fresh supply of power. However, learned District Forum has not applied judicial mind to the fact and law involved in this case. It is further stated that no application was made by the complainant to termination the agreement and as such security deposit U/R-22 of the OERC Code,2004 is non refundable. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order.
8. It is admitted fact that the complainant for his Chuda Mill has obtained the power supply from OP No.1 and an agreement was executed between the parties for five years. It is admitted fact that the complainant has deposit Rs.1,53,470/- as security deposit with OP No.1. It is not in dispute that after two years of the agreement, he sold away the chuda mill to OP No.2 who applied for fresh power supply and he got power supply from OP No.1. It is not in dispute that the complainant before sale of the chuda mill has cleared all the electricity dues and got NOC from OP No.1. Now the only question arises whether the complainant is entitled to refund of the security deposit. No doubt out of the agreement for five years, three years were left to be completed, but before that it was sold for some compelling reasons by complainants. When the complainant has got NOC and has no any arrear, he is entitled to get back the security amount. The only submission arises as apply Regulation-16(3) of OERC Code,2004 which is as follows:-
“ Consumer may terminate the agreement after giving at least two months notice to the licensee only after completion of initial period of agreement.
Provided that the notice shall be accompanied with a copy of payment of last bill. “
Regulation -22 of the OERC Code,2004 is as follows:-
“The security deposit shall be refunded to the consumer only after the termination of the agreement and after adjustment of outstanding dues, if any, within a period of one month from the date of termination. In case of non-refund of such security deposit during the aforesaid period, it shall carry interest at the rate of 15 % per annum from the effective date of termination of the agreement( without prejudice to other rights and remedies of the consumer) payable to the consumer. Before termination of the agreement, the licensee is entitled to adjust the whole or part of the security deposit towards arrears payable by the consumer.”
9. The aforesaid provisions are clear to show that the complainant before demanding security deposit has to inform the OP No.1 in writing that agreement has been terminated. But when NOC has been already issued, the notice of termination of the agreement is deemed to have been issued. Because NOC is only issued when cause of asking for issue of NOC is submit and clear to OP. For a formal request of termination the OP should not have kept the security deposit with themselves. This amounts to deficiency in service and compliance of Regulation-16(3) is only directory not mandatory when the NOC has already issued. However, to maintain some clarity, while confirming the impugned order, we modified the operative portion of the impugned order by directing the complainant to apply in plain paper to refund the security amount of complainant within a period of 30 days from today and just after receipt of the application, they will refund security amount of Rs.1,53,470/- within 30 days to the complainant. Rest of the impugned order are hereby set aside.
The appeal is disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
