Titas Gas Transmission and Distribution Company Ltd. Vs. Habib Oil Mills (BD) Ltd

Case No: Civil Revision No. 253 of 2001

Judge: NK Chakravartty,

Court: High Court Division,,

Advocate: Mainul Hosein,Dr. M Zahir,,

Citation: 54 DLR (2002) 35

Case Year: 2002

Appellant: Titas Gas Transmission and Distribution Company Ltd

Respondent: Habib Oil Mills (BD) Ltd

Subject: Property Law,

Delivery Date: 2001-7-30

Titas Gas Transmission and Distribution Company Ltd. Vs. Habib Oil Mills (BD) Ltd
 54 DLR (2002) 35
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Fazlul Haque J
NK Chakravartty J
 
Titas Gas Transmission and Distribution Company Ltd………………….Petitioner
Vs
Habib Oil Mills (BD) Ltd....…………….Opposite Party
Judgment
July 30, 2001.
 
Specific Relief Act (I of 1877)
Section 55
The Court had no jurisdiction to go beyond the terms of the contract, but then in the facts of the case, there should have been equitable reliefs so that neither party shall suffer owing to the interlocutory order.
 
Lawyers Involved:
Mainul Hosein, Barrister-at-Law with Manjur Kadir and Md. Shamim ul-Alam, Advocates—For the Petitioner.
Dr. M. Zahir with Md Waliul Islam, Advocates—For the Opposite Party.

Civil Revision No. 253 of 2001.
 
Judgment         
NK Chakravartty J.- This Rule at the instance of defendant-petitioner namely, Titas Gas Transmission and Distribution Company Ltd. is directed against the judgment and Order No. 23 dated 14-11-2000 passed by the learned Subordinate Judge, 4th Court Dhaka in Title Suit No. 276 of 1999 allowing an application for temporary mandatory injunction under section 55 of the Specific Relief Act, directing the defendant petitioner to restore gas connection to the factory of the plaintiff opposite party within 7 days from the date and to submit subsequent gas bills as per meter reading.

2. The short facts relevant for the purpose of disposal of this Rule is, that there was an agreement signed and executed by the Titas Gas Transmission and Distribution Company Ltd. with Mr. Habib Oil Mills, (BD) Ltd. on 1-2-1979 in between the parties and accordingly, the present petitioner (Oil Mills) had been furnishing gas bills and the present opposite party (Gas Company) to the petitioner for the aforesaid consumption as per meter reading for the last about more than two decades on payment of gas bills through actual meter reading. The further case of the defendant petitioner is, that the Oil Mills had two boilers in the mills. The Chief Inspector of Boiler has certified one having 3 tons of steam per hour and the other of 1.5 tons per hour, as from 1992 one boiler having capacity of 3 tons was kept standby for want of work but the Gas Company was not satisfied for such standby and creating pressure for disconnection and on 12-3-1997 this boiler was disconnected by force by the authorised contractor of the Gas Company ignoring the protest of disconnection and there remained the boiler of having 1.5 tons capacity per hour and naturally the gas bill should come down because of standby and disconnection of 3 tons boiler but contrarily, the Gas Company, for the reasons best known to them, started submitting excess payment though the petitioner paid the bills from February 1994, to November 1994 with objection. The Gas Company from December, 1995 started submitting gas bills more than double and sometime triple than the actual meter reading. When asked for the reasons the Gas Company told that they were calculating and preparing the bills on 24 hours basis as if the mills was functioning 24 hours though it was hardly running 8 hours a day. Several representations were addressed to the Gas Company requesting for correction of the bills and in reply they disclosed through sending a letter on 20-3-1996 to the Oil Mills that there was a meeting called 300th Board Meeting held on 5-12-1993 and in the said meeting the rate of gas charge had been enhanced and the consumers concerned have to pay gas bills as per the decision of the said meeting. It was further told and asserted that the Oil Mills has to execute undertaking on 50 Taka stamp for enjoying gas facilities and accordingly, the Oil Mills headed by the Managing Director gave the undertaking on 23-3-1996. So, it is seen that in the second bond also it has been stated that M Habib Mills (BD) Ltd. is bound to agree to any review decision to be taken by Gas Company and ourselves. In such position it cannot be said that the decision taken in the 300th Board Meeting raising gas charge from 50% to 75% is binding on the Oil Mills. Though the decision taken on the 300th Board Meeting is not applicable in the case of refinery sector like the present petitioner (Oil Mills) practically, the Oil Mills paid the Gas Bills from February, 1994 to July 1997 at the high excess and unusual rate under compelling circumstances vis-a-vis to keep the Mills running although on protest in writing several times and thus an amount of Taka 47,77,250.18 was paid in excess payment than the actual meter reading under protest. Challenging the aforesaid illegal realisation of gas bills a writ petition being, number 7630 of 1997, was filed before the High Court Division and the Division Bench of the Hon’ble Supreme Court was pleased to issue Rule Nisi on 11-12-1997. But ultimately, their Lordships on the Writ Bench after hearing the parties gave direction to the Gas Company to issue gas bills as per meter reading from August, 1997 with further direction not to disconnect the gas line or interfere in the business in any way whatsoever till disposal of the Rule. But ultimately, the Rule was disposed of with the observation that the disputed question of the facts are involved in the petition which for the purpose of proper adjudication would require adducing evidence and it would be a best course on the part of the Oil Mills to go to the civil Court for decision and thus the Rule was discharged on 3-6-1999 and against the order the Oil Mills went to the Appellate Division but in vain. Then the Oil Mills instituted a Title Suit No. 276 of 1999 on payment of maximum court fees with a petition under Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure seeking direction upon the gas company to submit gas bills according to actual meter reading but not exceeding the meter reading and further, not to disconnect the gas line till disposal of the suit, was filed and moved and the learned Subordinate Judge, 4th Court, Dhaka was pleased to issue a show cause upon the Gas Company as to why temporary injunction as prayed for shall not be granted. The Gas Company as defendant appeared and filed the written objection on 17-6-2000 but no claim by way of arrear dues was made in the written objection even to a single amount. It means there is no outstanding bill against the instant petitioner (Oil Mills). It was further stated that the Gas Company regularly furnished monthly bills as per meter reading from August, 1997 to July, 2000 and thus the mills duly paid the gas bills and that there was no question to be a defaulter. Before hearing of the injunction petition the gas company headed by some 10/12 persons went on 7-8-2000 to the mills site and in the name of servicing the machineries entered into the mills premises and disconnected the gas line on the day without any notice of show cause. Finding no other way, the Oil Mills filed a petition on 17-8-2000 under section 55 of the Specific Relief Act seeking mandatory injunction against the illegal disconnection of gas line and for restoration of the same. The Court below upon hearing the parties passed an order on 14- 11-2000 directing the gas company to restore the gas line within 7 days from 14-11-2000, which is the impugned order in the instant revision application before this Court.

3. Being aggrieved by and dissatisfied with the impugned judgment and order dated 14-11-2000 the defendant-petitioner moved this Court and obtained the present Rule with stay order.

4. Mr. Mainul Hosein, Barrister-at-Law with Mr. Md. Shamim ul-Alam, the learned Advocates appeared on behalf of the defendant-petitioner. Plaintiff opposite party is represented by the learned Advocate Dr. M. Zahir with Mr. Waliul Islam.

5. Three branches of arguments have been advanced by Mr. Mainul Hosein on behalf of the defendant-petitioner which are as follows:
Firstly that the impugned order dated 14-11-2000 is not tenable in law inasmuch as it has been passed in gross violation of the terms of the contract and to the great prejudice of the defendant company causing serious loss of revenue to the public exchequer. Subsequently, the learned lower Court failed to consider that for making unlawful gain the plaintiff company resorted to practising fraud by way of setting thermofluid heater in their factory and thereby consumed huge quantity of gas @ 1000 cft, etc per hour. A vigilance team of the defendant company detected this fraud of the plaintiff on 12-7-1995. But instead of disconnecting the gas line the petitioner took a sympathetic view and asked the plaintiff to pay the prices of the huge quantity of excess gas consumed by them unauthorisedly under certain terms and conditions as laid down in the notice dated 19-11-1997. But unfortunately, the plaintiff did not pay any heed to it and continued to consume gas unlawfully till today. During this period the defendant company issued several reminders to the plaintiff for regularising their unlawful acts on payment of the arrear bills, etc. The last letter to this effect is dated 7-9-2000. So, it is not correct that the defendant has disconnected the gas line without any notice. Secondly, gas is indeed a national resource belonging to the state being managed by the defendant company under authority of the Government. It is sold to bonafide consumers on payment of price which is fixed under certain specific terms and conditions of a written contract between the supplier and the customer. According to Mr. Mainul Hosein, the learned Court below had no jurisdiction to go beyond the terms of the contract and to grant any unusual premium to any customer under any extraneous grounds or consideration. The 3rd and last contention of Mr. Mainul Hossein is that the learned lower court failed to consider that the application under section 55 of the Specific Relief Act is totally misconceived inasmuch as the defendant company is under no obligation either legal or moral to restore gas connection to the plaintiff who is a habitual defaulter by willful breach of the terms of the contract. And, according to him, on the contrary, the plaintiff is under legal obligation to pay the gas bills regularly by clearing up the huge outstanding bills that amounts to Taka 94,26,236.22 only up to June, 2000 the defendant company in exercise of their lawful authority have disconnected the gas line in terms of the contract.

6. On the contrary, Dr. M. Zahir submits that there was an agreement signed and executed on 1-2-1979 between the parties and accordingly, the present petitioner (Oil Mill) has been supplying gas and the present-opposite party (Gas Company) has been furnishing bills to the petitioner for the aforesaid consumption as per meter reading for the last about more than two decades on payment of gas bills through actual meter reading. According to him, the Oil Mill had two boilers in the mill one having 3 tons of steam per hour as has been certified by the Chief Inspector of Boiler. And from 1992 one boiler having capacity of 3 tons was kept standby for want of work but the gas company was not satisfied for such standby and creating pressure for disconnection and on 12-3-1997 this boiler was disconnected by force by the authorised contractor of the gas company ignoring the protest of disconnection. And then remained the other boiler of having 1.5 tons capacity per. hour and naturally the gas bill should come down because of standby and disconnection of 3 tons boiler, but gas company, for reasons best known to them, started submitting excess gas bill from February 1994 than earlier though the petitioner paid the bills from February, 1994 to November, 1994, with objection. Dr. M. Zahir also submits that the Gas Company from December, 1995, started submitting gas bills more than double and some time triple than the actual meter reading. When asked for the reason the gas company told that they were calculating and preparing the bills on 24 hours basis as if the mill was functioning 24 hours though it was hardly running 8 hours a day. Several representations were addressed to the gas company requesting for correction of the bills and in reply they disclosed through sending a letter on 20-3-1996 to the Oil Mills that there was a meeting called 300th Board Meeting held on 5-12-1993 and in the said meeting the rate of gas charge had been enhanced and consumers concerned have to pay gas bills as per the decision of the said meeting. It was further told and asserted that the Oil Mills has to execute undertaking on furnishing Taka 50 stamp for enjoying gas facilities and accordingly, the Oil Mills headed by the Managing Director gave the undertaking on 23-3-1996 and on 8-4-1996 wherein it has been stated that MH Oil Mills is bound to agree to any review decision to be taken by gas company and ourselves. According to him, the learned court below while passing the order on 14- 11-2000 for restoration of the gas line has given very sound and acceptable reasons. He has further submitted that the agreement signed on 1-2-1979 between the parties does not contain any provision for disconnection of gas line, rather article 9 of the contract has only provided that the contract may be cancelled on 90 days’ notice. He has finally argued that the gas company was dishonouring as well as violating their own agreement inasmuch as the article (II) of the agreement provides that in case the capacity of the connected equipment is found to be higher by 10% than the actual, then the minimum, charge may be recalculated at the sole discretion of the gas company. But in the case of this Oil Mills the aforesaid formula has not been acted upon and, as such, the action of the gas company is illegal, malafide and arbitrary.

7. Before adverting to the arguments pressed into service, the materials, on record furnished from both sides may be discussed in brief.

8. Admittedly, the gas company regularly furnished monthly gas bills to the petitioner Oil Mills office as per meter reading from August, 1997 to July 2000 and the petitioner duly paid the gas bills. It is also not denied that prior to hearing of the injunction matter the gas company headed by some 10/12 person went on 7-8-2000 to the mills site and in the name of servicing the machineries entered into the mills premises and disconnected the gas line on that day without any notice to show cause and, as such, the petitioner (Oil Mills) filed a petition on 17-8-2000 under section 55 of the Specific Relief Act, seeking mandatory injunction and, according to them, against the illegal disconnection of gas line and for restoration of the same. Facts stand that the learned court below upon hearing the parties passed an order on 14-11-2000 directing the gas company to restore the gas line within 7 days from 14-11 -2000. It appears that the defendant petitioner and the plaintiff opposite party entered into a contract on 1-2-1979 for supply of gas to the former which was subsequently extended with certain amendment. The amendments were made on mutual consent, which are binding on both the parties. The amendments were in terms of clause 6 of the agreement between the parties. As such, the decision taken by the Board of Directors of the defendant company in the 300th Board Meeting raising the minimum charge from 50% to 75% is also binding on the plaintiff. The Managing Director, of the plaintiff company gave two bonds in a stamp paper of Taka 50 dated 23-3-1996 and dated 8-4-1996 to pay the bills as per decision of the defendant company.

9. To appreciate the said argument it will be profitable to extract clause 6 of the contract dated 1-2-1979 and the undertaking dated 23-3-1996 and 8-4-1996 which runs thus;
Contract for the supply of Gas for Industrial Use (Annexure-A) Clause-6 And I/We undertake to pay charges for gas consumption at the rates specified below and in force from time to time and, as may be changed from time to time at the sole discretion of the company and also agreed at any tax of charge on Natural Gas imposed by the Municipality of Local Authority or the Government or any other agencies be borne in full by me/us in addition to the price of gas. The company will, however, be guided by directives of the Government in matters of pricing.
Dated: 23-3-1996
Undertaking
On our objection to the present operation pattern of billing system as recently introduced at the Board Meeting No. 300th of the Managing Committee of Titas Gas T and D Company Ltd. In the light of monthly approved load effective from December, 1995 the undersigned Managing Director of Ms. Habib Oil Mills (BD) Ltd. 58, Postogola, Dhaka is bound to agree to any decision to be taken by Titas Gas T and D Co. Ltd. regarding change in system of calculation of gas load provided it is accepted by all the Oil Refining Units and meter reading should also be taken into account.
Hereunder I do sign with my knowledge & with.
(M Nasir)                                                                           Sd./Nurul Alam Patoury 8, Motijheel C/A, Dhaka
Managing Director                                                               Dated 8-4-1996
Undertaking
On our objection to the present operation pattern of billing system as recently introduced at the Board Meeting No. 300th of the Managing Committee of Titas Gas T & D Company Ltd. in the light of monthly approved load effective from December, 1995. The Undersigned Managing Director of M/S M Habib Oil Mills (BD) Ltd 58, Postogola Dhaka is bound to agree to any review decision to be taken by Titas Gas T & D Company Ltd & ourselves.
Hereunder I do sigh with my knowledge & with.
(M Nasir)                                                                              Sd/Nurul Alam Patoury
Managing Director                                                                  78, Motijheel C/A, Dhaka

10. The real question that falls for determination in this Rule is whether the impugned judgment and order passed by the learned Subordinate Judge is maintainable?

11. We have heard the learned Advocates of both sides and perused the pleadings of the parties as well as the petition for temporary mandatory injunction and the impugned order of the learned trial Court and affidavit in opposition filed by the defendant-petitioner for vacating the order of stay. On careful scrutiny of the entire matters on record prima facie we find that the learned lower Court while considering the case of both sides has failed to consider that for making unlawful gain the plaintiff company resorted to practising fraud by way of setting thermo fluid heater in their factory and thereby consumed huge quantity of gas @ 100 cft per hour. A vigilance team of the defendant company detected this fraud of the plaintiff on 12-7- 1995. But instead of disconnecting the gas line the petitioner took a sympathetic view and asked the plaintiff to pay the prices of the huge quantity of excess gas consumed by them unauthorisedly under certain terms and conditions as laid down in the notice dated 19-11-1997. But unfortunately, the plaintiff did not pay any heed to it and continued to consume gas unlawfully till today. During this period the defendant company issued several reminders to the plaintiff for regularising their unlawful acts on payment of the arrear bills, etc. The last letter to this effect is dated 7-9-2000. So, it is not correct that the defendant has disconnected the gas line without any notice. Gas is indeed a national resource belonging to the state, being managed by the defendant company under authority of the Government. It is sold to bonafide customers on payment of price which is fixed under certain specific terms and conditions of a written contract between supplier and the consumer. So the learned court below had no jurisdiction to go beyond the terms of the contract and to grant any unjust premium to any customer under any extraneous grounds or consideration.

12. In the facts, circumstances and foregoing reasons we feel inclined to hold the prima facie view, that the plaintiff is under legal obligation to pay the gas bills regularly by clearing up huge outstanding bills that amounted to Taka 94,26,236.22 only up to June, 2000. The defendant company in exercise of their lawful authority has disconnected the gas line in terms of the contract. In our view, the learned trial Court committed an error of law in failing to consider that the relationship between the two contractual parties is governed by the terms of the contract mutually agreed upon by them and hence the Court cannot go beyond the terms of the contract or direct the defendant company to restore the Gas line to the defaulter company and to submit Gas Bills as per meter reading though under a written bond dated 8-4- 1996 the plaintiff company bound itself to pay the gas bills as per minimum charge system formulated in the 300th resolution of the Board of Directors of the defendant company.

13. Let us now consider the balance of convenience and inconvenience in between the parties which cannot be arbitrary. By the impugned order, the learned trial Court allowed an unjust premium to M Habib Oil Mills (BD) Ltd. The plaintiff-opposite party cannot be allowed to consume gas for an unlimited period without payment of dues and since the gas is indeed a national resource belonging to the state being managed by the defendant company under authority of the Government and it is sold to bonafide customers and not to the defaulter. Under the facts and circumstances there should have been equitable reliefs so that neither party shall suffer till disposal of the suit. The balance of convenience and inconvenience therefore, appears to us is equal. The impugned order dated 14-11-2000 is not tenable in law inasmuch as it has been passed in gross violation of the terms of the contract and to the great prejudice of the defendant company causing serious loss of revenue of the public exchequer. To meet ends of justice, at this stage, the order of the court below requires to be modified.

14. The order is accordingly, modified to the effect that the Titas Gas T & D Company Ltd. would restore the gas connection provided the mills (M Habib Oil Mills (BD) Ltd. plaintiff-opposite party pays 50% amount of the outstanding dues out of Taka 94,26,236.22 and also pays the usual gas consumption bills regularly in terms of the contract dated 1-2-1997 and undertaking dated 8-4-1996. The Subordinate Judge is directed to dispose of the suit as expeditiously as possible preferably within 6 (six) months from the date of receipt of the copy of this judgment.
In the result, the Rule is disposed of with the aforesaid observation without any order as to costs.
Ed.