1. This suit has been filed by Syed Abdul Khalique who is the sole proprietor of the Ice Factory, known as Messrs Abdul Khalique Ice Factory. The defendant Karachi Electric Supply Corporation is a statutory body enjoying a monopoly right to supply electric energy to vast area of population in and around the city of Karachi. The monopoly rights of this body are granted to it by the Provincial Government under section 3 of the Electricity Act (Act IX of 1910).
2. As the defendant enjoys a complete monopoly for supply of such an essential necessity of life the terms of the Licence as well as the provisions of the Act have regulated the mode and procedure for enjoying the rights. There are provisions incorporated in the Act to ensure that these monopoly rights are not misused and the consumer who has no choice or option but to buy the energy from the defendant company is not subjected to undue hardship. Section 22 of the Act postulates:- "22. Obligation on licensee to supply energy--Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the licence, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply: Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration."
3. It is further provided that the consumer should pay to the Licensee/ Electric Company the charges for the energy consumed by him. His neglect to pay the dues of the Licensee would entail disconnection of supply of energy to the defaulting consumer. Original section 34 of the Electricity Act has now been substituted by the Electricity (Amendment) Ordinance (LXII of 1979). The section in its present form stands as under:- "24. Discontinuance of supply to consumer neglecting to pay charge:
(1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days' notice in writing to such consumer and without prejudice to his right to recover such charge or other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply line or other works, being the property of the licensee, through which energy maybe supplied to such premises, or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of discontinuance, are paid, but not longer.
(2) Where any difference or dispute as to any matter connected with any charge or other sum included in the bill of licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by subsection (1) until the Inspector has given his decision: Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the licensee of the undisputed charges and other sums and with the Electric Inspector of fifty per cent, of the disputed charges and other sums and for the deposit with the licensee of further charges for supply of energy, as they accrue, and the consumer has failed to comply with such request within a period of fifteen days from the date of such request or, as the case may be, from the date of receipt of bills in respect of further charges for supply of energy."
4. The plaintiff's grievance is that the defendant in utter disregard to the restraint provided in section 23, have want only cut off their power supplied and have caused huge losses to the plaintiff. As a matter of fact the action has been described as malicious and motivated with vindictive and ulterior motives. They have filed the suit praying "for damages for Rs,24,000 in respect of the factory remaining idle for four days and for further damages at Rs,6,000 per day until the supply is restored." "The plaintiff have challenged the demand made by the defendants and prayed for "directing the defendant to restore the supply immediately".
5. The question of motive and legitimacy of the claim raised by the plaintiff and contested by the defendants must await the final hearing of the suit. But for the purposes of disposal of the application under Order XXXIX, rules 1, 2, C.P.C. It is to be determined whether the action of defendants in cutting off the electric supply which has resulted in the closure of the plaintiff's Ice Factory during the peak summer months of their business is prima facie justified and sustainable in law. To appreciate the position taken by the defendants, some facts may be stated.
6. It is the case of the plaintiff, as set out in the plaint that he set up his ice factory in July, 1980 and since 3rd July,1980 his factory was connected with the main supply lines and he started receiving the electric energy from that date through a Meter No,BL 244. This meter and other meters and equipment installed within and outside the premises of the factory were under the control of the defendant and indeed the plaintiff was prohibited from touching or dealing with the said meters.
7. That on 5th May,1982, the staff of the defendants visited to change the meters and do some other work. But, at that time neither the Manager nor the Electric Supervisor of the plaintiff happened to be present, the machine operator requested them to wait till either of these staff arrives. This obstruction was disapproved and resented to by the visitors and by the time the factory's Electrical Supervisor arrived to handle the situation verbal exchanges in a language which is usually used and understood on such occasions by such a class of men had already poisoned the atmosphere.
8. The visitors were allowed to do, and did- complete their job in the presence of the factory Electrical Supervisor. But at the time of leaving the premises of the factory the workmen dropped the hints that they would settle the score and would cause the factory to pay for the insults they had suffered at the hands of the staff. It is alleged in the plaint that at that time neither any objection was raised regarding the tampering with the meter nor any note or protest was lodged by these men with the factory complaining about the conduct now being attributed to the factory. It is alleged that since 5th May, 1982 when these men had visited, nothing adverse was brought to the notice of the factory till 22nd May,1982 when the story of tampering with the matter was introduced through a letter No,CB/IM Z/T/B2 244. This letter issued by the defendants contained a threat that the "supply to the plaintiff factory was being disconnected without any notice and will not be restored unless the loss suffered by the defendant is made good and undertaking received that their metering equipment will not be interfered in future". The threat was immediately carried into effect and the supply was disconnected. "Plaintiffs' protests were not heeded but the plaintiff was anxious to start the factory" and, therefore, he succumbed to the pressure and paid Rs,25,00b forthwith and agreed to pay a further sum of Rs,25,000 to lie with the defendant to he adjusted if he was found to be liable for further payments to the defendants. Consequential on 29th May,1982, the plaintiff paid this 25,000 as well to lie as deposit with the defendant. He paid a further sum of Rs,27,491.50 being the Bill of April, 1982. But the matter did not end here. On 5th August 1982 he was served with a supplementary bill along-with a covering letter No,CB/IMZ/TAP-PL 244/2758. This supplementary bill for Rs,3,87,505.12 was for the period July, 1980 to April, 1982, calling upon the plaintiff to pay this entire sum by "Due date" i,e, 26th June,1982. It was threatened in the accompanying letter that if the payment was not made within the grace period- of 7 days of the "Due Date" supply would be cut off. The plaint proceeds to aver that in spite of the assurance that supply would be cut off after 7 days of the "Due Date" the supply was actually cut off on 27th June,1982. In para. 20 of the plaint the plaintiff has summed up the position thus: "20. That the supply was disconnected on 22nd May,1982 and restored on 23rd May on payment towards the unjust demand of Rs,50,000 by the plaintiff and now the supply has been disconnected on the 27th June,1982 and remains disconnected upto this day and the plaintiff continues to suffer losses."
9. It is contended by Mr.Hassan A. Shaikh, the learned counsel for the plaintiff, that this action of the defendant is mala fide, vindictive, inspired by ulterior motives. In any case it is not warranted by law. The learned counsel contends that the authority of "Discontinuance of supply to a consumer" who "neglects to pay charge" is conditional by counter-protective measures for the consumer. In case, as in the present case, those counter-protective measures are ignored and bypassed by the defendant/licensee, there is no right with the defendant to cut off the supply.
10. Section 24, as amended is a comprehensive provision and needs a close analysis. The opening line of this section uses the expression "Neglects to Pay". In my opinion the expression "Neglect to Pay" is different from failure to pay or make a default in payment of an undisputed liability. It is highly debatable whether the Licensee would have the naked coercive powers to force a consumer to surrender to the demand of the licensee even if the demand is contested by the consumer and is inadmissible.
11. Assuming that "Neglect to Pay" includes all types of claims, and charges undisputed and even disputed, even then the consumer would have the protection of "Seven days" notice. No supply can be disconnected unless the Licensee has given "not less than seven clear days notice in writing to such consumer".
12. In the present case the bill, dated 12th June,1982 for payment of Rs,3,87,505 (Annexure B-2 to the plaint) was delivered to the plaintiff on 15th June,1982. "Due Date" for payment of this demand was shown as 26th June,1982. The learned counsel for the plaintiff contends that the footnote on this very bill is to the following effect:- "Supply will be disconnected if payment is not received within 7 days of due date."
13. The learned counsel argued that this 7 days period must expire after "Due Date" before the right to disconnect the supply accrues to the defendants. This 7 days period would expire on 3rd July,1982.
14. But the supply was cut off on 27th June 1982.
15. The learned counsel further submits that this was highly exaggerated demand. Indeed it was a totally faked and imaginary claim, he asserts. The plaintiff according to the learned counsel could and would have referred this dispute to the Electric Inspector as postulated by subsection (2) of section 24 and would have abided by the results emerging out of proceedings before the Electric Inspector. But due to the failure of the defendant to give such a statutory notice or even if the notice Annexure 8-2 is taken to be such a notice, then cutting off the supply before the expiry of 7 days period has deprived the plaintiff of a very valuable right of referring the dispute to the Electric Inspector and avoiding the situation that has been created by the defendants. Subsection (2) of section 24 puts a complete bar on the power of cutting off the supply to a consumer where the consumer has referred the matter to the Electric Inspector. The following words in subsection (2) are noteworthy:- the licensee shall not exercise the powers conferred by subsection (1) until the Inspector has given his decision."
16. The contentions raised by the learned counsel for the defendants have force and prima facie it appears to be an unwarranted, premature and illegal action. Whether it was occasioned on account of a bona fide error of judgment, or it is a malicious and vindictive act, cannot be ascertained at this early stage of hearing. Much would depend on evidence of the parties.
17. For the purposes of the interim relief plaintiff has succeeded in making out a prima face case.
18. There is no doubt that other two factors, the balance of convenience and irreparable injury also heavily weigh in favour of the plaintiff.
19. In the circumstances I would hold that the defendant's action in cutting off the supply is not sustainable in law and the continuing wrong must be rectified to arrest further mischief and to spare the plaintiff from further harm and injury till the case is heard and finally disposed of.
20. I would, therefore, grant the plaintiff's application under Order XXXIX' rules 1 and 2 in the following terms:-
(1) The plaintiff should pay to the defendant all the charges and other sums which are undisputed and are admissible.
(2) To furnish a Bank Guarantee for payment to the defendant of the disputed amount/charges and other sums if they are found to be payable to the defendant by the plaintiff according to law.
(3) To furnish a Bond for payment at due date of further charges for supply of energy, as they accrue. The Bond to remain in force during the pendency of the suit.
(4) On plaintiff's compliance of the order as in paras. Above and notice of such compliance to the defendant, the defendant is directed to restore status quo ante as it existed prior to 27th June,1982 when the supply was disconnected (and cut off); and restore the electric power to the plaintiff's factory.
21. Application No,2604/82 is disposed of in the above terms. Costs of this application to be paid by the defendant to the plaintiff.