Satyabrata Sinha, J.:—The petitioner curries on business in partnership under the name and style of Sri Ramkrishna Cold Storage. The factory allegedly remain operative from 15th March to November, 15 each year and an agreement was entered into by and between the petitioner and the respondent-Board for supply of electrical energy to the petitioner's aforementioned Cold Storage for getting supply of electrical energy wherefor admittedly a meter had been installed in January, 1987. The meter reading in respect of the said Cold Storage was found irregular and the petitioner challenged the correctness of the bills presented on the basis of such reading. The said Writ application was registered as C.O No. 11930(W) of 1986. By an order dated 28.8.90 the learned Judge while referring the dispute to the Electrical Inspector in terms of s. 26(6) of the Indian Electricity Act directed that the petitioner pay a sum of Rs. 45,000/- per month irrespective of recording in the meter. However, soon thereafter pursuant to the said order, the meter which had been installed in the premises of the petitioner was sent to the Chief Electrical Inspector and a new meter was installed. The Chief Electrical Inspector submitted his award on 23.11.96 wherein he made the following observations:—

1. “The meter (TVN) No. 32365072 which were in the metering circuit of the petitioner since January 87 till such time i.e 13.3.92 it was removed for testing in the testing laboratory of the Directorate of Electricity was found to be correct in all respect within the measuring of Rule 57 of the I.E Rule, 1936.

2. The bills raised on the recorded reading of the meter (TVN) No. 32365072 since January, '87 till such time i.e 13.3.92 it was removed for testing were correct.

3. The Respondent is to follow normal procedure in computing additional security to be deposited by the petitioner”.

2. The said authority in the aforementioned award directed:—

“Bills raised on the recorded readings of the meter (TVN) No. 32365072 or in terms of the agreement executed between the petitioner Sri Tapan Singha of Sri Ramkrishna Cold Storage and the respondent (W.B.S.E Board) since January 87 till 13th March, 1992 do not call for any further notification.

Having regard to additional security deposit realisable from the petitioner, the respondent W.B.S.E Board shall compute the amount as for normal norms on the strength of highest monthly billed amount against two months consumption since January, 1987 till date.

The petitioner shall pay the outstanding dues of the respondent (Board) including Additional Security deposit after it being adjusted against the security already furnished by the petitioner at the earliest.

It is obligatory on the part of the petitioner to effect payment of energy bills raised by the respondent with the stipulated time in terms of agreement.”

3. Pursuant to the aforementioned award the respondent-Board by a letter dated 5.2.96 as contained in Annexure “B” to the writ application directed the petitioner to pay a sum of Rs. 6,57,494.36 p. It further asked the petitioner to furnish the Additional security deposit in the shape of bank guarantee amounting to Rs. 1,19,620/- copy of the statement of bill and payment in respect of said cold storage from October 88 to October 95 had also been annexed herein.

4. It appears that the petitioner filed an application for payment of the aforementioned amount by way of instalment. By a letter dated 12.2.96 the respondent No. 1, Board informed the petitioner that instalments had been fixed, in terms whereof the petitioner was to pay a sum of Rs. 1,57,494.36 p. immediately but not latter than 27.2.96 and the balance amount of Rs. 5,00,000/- by 16.2.96, 16.4.96, 16.5.96, 17.6.96 and 16.7.96 respectively. The respondent No. 1, by its letter dated 12.3.96 whereby the aforementioned instalment was allowed (Annexure “D”), further stated:—

“In fine, it may be mentioned that payment of LPSC as applicable will have to made as per bill to be preferred and sent to you in due course. Further it needs be stated that the failure of making payment as well as furnishing of Bank Gurantee as per time schedule as stated above will lead to disconnection of bulk power supply to your cold storage premises without making any further reference to you.”

5. The impugned bill was drawn up on 31st October, 1996 and the same was to be paid on 30th November, 1996.

6. Mr. Ghosh, the Learned Counsel appearing on behalf of the petitioner, inter alia, submitted that keeping in view of the fact that a dispute has been raised by the petitioner in terms of s. 26(6) of the Indian Electricity Act, no late payment surcharge is leviable. According to the Learned Counsel the petitioner has been paying instalments as per the directions of the West Bengal State Electricity Board itself and, thus the question of payment of delayed payment surcharge does not arise.

7. Mr. Sanyal, appearing on behalf of the respondent on the other hand submitted that a proceeding under s. 26(6) of Indian Electricity Act does not debar the Board from claiming delayed payment surcharge which is leviable in terms of the agreement. According to the Learned Counsel the delayed payment surcharge is charged by way of interest. In support of his aforementioned submission reliance has been placed by the Learned Counsel in the Adoni Ginning Factory v. The Secretary Andhra Pradesh Electricity Board, Hyderabad reported in AIR 1979 SC 511. It was further submitted that in any event in view of the maxim actus curiea nemonim gravabit” the petitioner cannot suffer owing to the acts of Court. Reliance in this connection has been placed in Gursliaran Singh v. New Delhi Municipal Committee reported in AIR 1996 SC 1175.

8. The matter was heard on 6th December, 1996 and the judgment was reserved. However, a prayer was made on behalf of the petitioner that the matter may be heard further and pursuant to the said request the matter was again placed for further hearing on 23.12.1996, on which date a supplementary affidavit has been filed alleging inter alia there in that even after removal of the old meter at no point of time bills were prepared on the basis of correct and actual meter reading and the dispute thus, had not yet been finally settled. It was further submitted that now meter which was installed on 13.3.92 was found defective on 7.10.94 as a result whereof the electricity bills were prepared on average basis of previous years' meter reading. Thereafter the meter again became defective on February, 1995 which was alleged to have been rectified according to the Electricity Authority on 1.9.95 and ultimately the said meter was found stopped operating in March, 1996 and since then it remains defective even today. Along with the supplementary affidavit various Current bills have been annexed.

9. Mr. Ghosh on the basis of the aforementioned supplementary affidavit submitted that the subject matter of the arbitration being the defective meter and the question having not been finally settled, the question of payment of late payment surcharge does not arise. The Learned Counsel further submitted that as all the bills were issued on the basis of average and as the new meters have also become defective, the petitioners are entitled to the reliefs prayed for herein.

10. Mr. Sanyal, the Learned Counsel appearing on behalf of the Electricity Board, however, submitted that the petitioners have made out a new case in the supplementary affidavit. According to Mr. Sanyal, the bills have not been disputed and, thus involving the provision of s. 24 of Indian Electricity Act does not arise nor by reason of the said supplementary affidavit the scope of writ petition can be enlarged.

11. It is not disputed that the supply of electrical energy to the petitioner's premises is governed by an agreement, the conditions where of are binding on the parties thereto. Clauses 13(3) of the said agreement reads thus:—

“In the event of any meter being found defective and check meter not having been installed, the power and energy consumption during the period when the meter was deemed to be defective shall be determined by taking an average consumption and other parameters for the proceeding three months or during any previous or subsequent period that may be reasonably comparable.”

So far as the payment of bills and late payment surcharge are concerned the relevant provisions in the Agreement read thus:—

“17. The Board after expiration of each calender month shall deliver to the consumer/s bill in accordance with the readings of the meters specified in clause 13 and the amount payable by the consumer/s to the Board for Demand energy, fuel surcharge and other charges if any. The consumers shall pay the total amount mentioned in the bill within the due date specified in the bill”.

“18. (1) If the consumer/s fails to pay the amount of any bill under this Agreement within the dues of the bill referred to he/they/it shall pay late payment surcharge at the rate specified in the schedule if hereto. If the amount of such bill remains unpaid after the due date of the bill referred to above, the Board may give the consumer/s seven days' notice of its intention to discontinue the supply of electrical energy and at the expiry of such period, if payment has not been received in the meantime, may forthwith disconnect the supply until full payment for all obligations pending including charges for the work of disconnection and reconnection has been made.

(2) The Board reserves the right to alter the aforesaid rate of late payment surcharge by a notification and such altered rate shall be treated as if the same were part of this Agreement is supression of the rate of late payment surcharge mentioned in the first para of this clause from the date fixed in the notification”.

12. Admittedly the petitioner filed writ petition before this Court which was marked as Civil Order No. 11930(W)/88 and U.C Banerjee, J. by an order dated 28.8.90 disposed of the said writ application with a direction that the matter be referred to the arbitration of the Chief Electrical Inspector as the dispute is regarding a defective meter installed at the petitioner's premises.

13. From the judgment passed by this court dated 28.8.90 in the aforementioned Civil Order No. 11930(W)/88, it is evident that the bills issued on the basis of the reading in the meter installed in the premises of the petitioner was a subject matter of the writ application and, thus any new meter installed subsequently could not have been subject matter of the award. The petitioner for the first time in the supplementary affidavit has contended that two other meters installed in the premises of the petitioner also become defective. If the said meters also become defective, the petitioner could take recourse to the provision of s. 26(6) of the Indian Electricity Act. He having not failed to do so, cannot refuse to pay at this juncture the late payment surcharge in terms of the agreement. The petitioner also cannot be permitted to enlarge the scope of the Writ petition by filing supplementary affidavit after the hearing was concluded and the judgment was reserved. No leave was taken or granted for filing such supplementary affidavit. Even no application has been filed for amendment of the Writ petition and, thus the scope of the Writ petition cannot be permitted to be widened. It, however, goes without saying it would be open to the petitioner to pursue his remedies in accordance with law in respect of the two other defective meters.

14. The only question which arises for consideration in this application is as to whether the impugned order is valid in law.

15. The petitioner filed another writ application before this court stating that he was entitled to a rebate on the said bill which was marked as C.O No. 9744(W) of 1996. By a judgment and order dated 5.8.96 R. Pal, (J.) rejected the said contention and dismissed the writ petition, stating:—

“The writ petitioner has paid the instalments, according to the writ petitioner, in terms of the letter of WBSEB dated 17th February, 1996. In my view the Writ petitioner is not entitled to any relief as prayed. The privilege of making payment by instalments cannot debar the WBSEB from claiming interest. This was also made expressly clear in the letter dated 17th February, 1996. The grant of instalments does not amount to any waiver of the charges on account of interest of late payment surcharge. The petitioner's prayer for rebate is unacceptable in the facts of this case.”

16. Supply of electrical energy is made in terms of an agreement entered into by and between the parties as also in terms of the provision of Indian Electricity Act, 1910. Electricity (Supply) Act, 1948 Act and Indian Electricity Rules, 1956.

17. There cannot be any doubt whatsoever that in a case where the licensee had submitted an excessive bill, the consumer is entitled to raise a bona fide dispute. Similarly where a meter had not been recording the consumption of electrical energy correctly, the consumer is entitled to refer the dispute to the Electrical Inspector in terms of the provision of s. 26 of the Indian Electricity Act. From the award as contained in Annexure “A” to the Writ application it appears that the meter was tested as far back as on 9.7.92 and was found to be correct by the Electrical Inspector-in-charge of Laboratory at the instance of the petitioner and the Board agreed to make necessary arrangements for sending the CTS and PT to the office of the Chief Electrical Inspector of West Bengal and a new set of CTS and PT was replaced in presence of the representative of the Arbitrator on 4.5.95

18. Once again the meter was tested and was found to be correct in all respects within the parameters of Rule 57 of Indian Electricity Rules, 1956. When the said report was shown to the petitioner on 5th September, he made a prayer to submit some papers in favour of his claim but despite an opportunity given, nobody had appeared on 14th September, 1995. However, he was given another opportunity and the matter was again heard on 26th October, 1995. The petitioner did not prefer any appeal against the said order to which he was entitled to in terms of s. 36(2) of the Indian Electricity Act. He, on the other hand, prayed before the respondent-Board for payment of the arrears in instalments which, as noticed hereinbefore, was allowed by the Board in terms of its letter dated 17.2.1996 The petitioner was aware of the condition that while granting instalments the Board had to waiver its right to claim late payment surcharge. In the writ application filed before his court being C.O No. 9744(W) of 1996 is merely claimed that it has a right to get the rebate. The said claim was negatived by this Court.

19. In this situation there cannot be any doubt whatsoever that the petitioner had waived his right and/or is estopped from claiming that he is not entitled to pay the late payment surcharge. Moreover, late payment surcharge is claimed by way of interest for late payment. The same is claimed by way of interest and not by way of penalty. In the Adoni Ginning Factory's case (supra), the apex court held:—

The very rate of levy of surcharge stipulated in the agreement, namely one percent per mensem i.e twelve percent per annum, is a clear indication that the levey is not meant to be a penalty but is a provision for interest by way of compensation for delayed payment. There is, therefore, no question of relieving the appellants against any penalty.

20. In Modi Industries Ltd. (Steels), Modinagar, Ghaziabad v. Executive Engineer, Electricity Distribution Division, Modinagar, Ghaziabad reported in AIR 1991 All 351, a division bench of Allahabad High Court clearly held that levy of delayed payment surcharge is by way of interest. It further following the Adoni Ginning Factory v. The Secretary, Andhra Pradesh Electricity Board, Hyderabad (AIR 1979 SC 1511) held that any interim order of stay granted by the court does not preclude the authorities from charging interest.

21. In Bharat Barrel & Drug Manufacturing Co. Pvt. Ltd. v. The Municipal Corporation of Greater Bombay reported in AIR 1978 Bom 369, the Bombay High Court interpreting the provision of s. 24 of the Indian Electricity Act distinguished the words ‘due’ and ‘neglect’ to pay stated the law thus:—

“It would appear to us that s. 24 has to be properly appreciated in the context of the obligations cast and the restriction placed on the licensee under the provisions of the Electricity Act, which we have earlier referred to within the supply area the licensee is obliged to supply electricity on an application to any consumer and cannot discriminate between one consumer and another. The licensee is also obliged to follow certain directions given by the State Government to control the distribution and consumption of energy within the area of the licensee. Section 24 regulates the licensee's power to disconnect the supply to consumer within this area of supply who has defaulted in respect of payment of amounts owing to the licensee and a further restriction is imposed on the licensee, which is that he can discontinue the supply only until such time as the charges or the sums are not paid by the consumer together with reimbursement of the additional expenses incurred by the licensee for cutting off and reconnecting the supply. Immediately the charge or the sums due and these additional expenses are paid, the supply has to be restored to the consumer whatever be the nature of the default, the number of defaults or the period and extent of the default. We see no warrant in the light of these statutory provisions to rend the word ‘due’ in the Electricity Act in the narrower sense viz. as only restricted to amounts within the period of limitation or which could be successfully claimed by a suit. In other words there is no logical basis shown for preferring the narrower construction to the ordinary construction, the wider one which is in accordance with the dictionary meaning as set out in Ramrao Palkar's case (1956) 58 Bom LR. 284).”

22. In Commissioner of Income Tax, Bihar, Patna v. Prayagl Agarwala & Co., Jharia, reported in 1986 PLJR 807, a full bench of the Patna High Court while interpreting s. 139 of the Income Tax Act prior to its amendment with effect from 1.4.1971, held that payment of statutory interest for delayed submission of return has to be paid irrespective of the fact as to whether an application for extension of time had been filed or not as liability for payment of such interest is nothing more or less a commercial compensation for the delayed payment of tax. Such interest is a simple quid pro quo for the delayed tender of tax in the treasury and is ordinary commercial terms, to pay interest for the money withheld.

23. The aforementioned law was laid down despite the facts that the terminology used in s. 139 of the Income Tax Act was penal interest.

24. Moreover, the petitioner has failed to show that it had even raised a bona fide dispute. In any event, after a new meter was installed the correctness whereof was not questioned, the petitioner in law was bound to pay the charges in terms for consumption of electrical energy as recorded in newly installed meter. This Court order permitting the petitioner to pay at the rate of Rs. 45,000/- per month irrespective of reading in the meter must be held to be confined to the subject matter of the writ application. In any event, the Court's order being an interim order and subject to the decision of arbitration, the petitioner cannot take advantage thereof inasmuch as in law he was bound to pay the entire charges as is required of it as and when a bill is issued on the basis of the recording of the consumption of electrical energy in meter as is provided under s. 26 itself. The statutory inability of the petitioner had not been and could not have been condoned by reason of an order passed by this Court.

25. Furthermore, Actus Curiae Nemenim Gravebit is a well known maxim which means that nobody should suffer because of an act of the Court. In Gursharan Singh's case (supra), it was held:—

“In view of the legal maxim “actus curiac neminem gravabit” which means that an act of Court shall prejudice to man, N.D.M.C is justified in making a claim for interest over the arrears which have remained unpaid for more than 12 years because of the interim orders passed by this Court. This aspect of the matter has been examined by this Court in the case of Raj Kumar Dey v. Tara Pada Dey, (1987) 4 SCC 398 : (AIR 1987 SC 2195). Although in the interim order it has not been stated that in event of dismissal of the appeals and the Writ petition, the appellants and the writ petitioner shall be liable to pay interest over the arrears of the licence fee, but that shall not debar this Court from passing any order in respect of payment of reasonable interest, over the said amount.”

26. For the reasons aforementioned there is no merit in this writ petition which is accordingly dismissed but in the facts and circumstances of this case there will be no order as to costs.

Writ petition dismissed.

S.P