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IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE::RAJAMAHENDRAVARAM

PRESENT: SRI M.RAMAKRISHNAM RAJU,
PRINCIPAL SENIOR CIVIL JUDGE, RAJAMAHENDRAVARAM

Wednesday, this the 30th day of January, 2019

ORIGINAL SUIT No.533/2013
Between:
Sri Sarvaraya Sugars Ltd., Bottling Unit, Vemagiri rep. by it Manager Sri Y.V.Dorayya, S/o
Satyanarayana Murthy, Hindu, aged 70 yrs, R/o Flat No.S4, Oak residency, Prasanti Estate,
Rajahmundry. .. Plaintiff
And
1. The Chairman and Managing Director, APEPDCL, Corporate Office, APEPDCL,
Seethammadara, Visakapatnam.
2. Superintendent Engineer/Operations/Rajahmundry, Godavari Bund, Rajahmundry, E G
Dist.
3. Senior Accounts Officer, APEPDCL, Rajahmundry Godavari Bund, Rajahmundry, E G Dist.
.. Defendants
This suit coming up before me for final hearing on 21.12.2018 in the presence of Sri
V.S.Rajya Lakshmi, advocate for the plaintiff and of Sri J.V.Subba Rao, advocate for
defendants, and the matter having stood over for consideration till this day, this Court made
the following;

JUDGMENT
1. This is a suit filed for recovery of Rs.7,77,046.83ps from the defendants illegally

from the plaintiff towards the Fuel Sub-Charge Adjustment Charges for the financial year

2008-2009 commencing from July, 2010 along with subsequent interest at the rate 12% p.a.

2. The averments of the plaint in brief as follows;

The plaintiff is an electricity consumer from the defendants under service

connection No.HT.RJY161 released under industrial category. The plaintiff has been regular in

paying electricity consumption charges to the defendants that being so the AP Electricity

Regulatory Commission entertain a Fuel Sub-Charge Adjustment claim made by AP Power

Coordination Committee on behalf of the distributing Companies including APEPDCL for the

financial year 2008-2009. The said claim was erroneously allowed by the Electricity

Regulatory Commission permitting APEPDCL and other distributing companies to levy Fuel

Sub-Charge Adjustment Charges on all consumers except agricultural consumers for the four

quarters of the financial year 2008-2009. On the strength of the permission accorded by the

APERC the defendants started including FSA Charges for the financial year 2008-2009 in the

running C.C. Bills commencing from July, 2010 and went on collecting the same in spite of the

produced made by the plaintiff under the threat of disconnection. In that manner the
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defendants have collected a total sum of Rs.5,99,994.60ps towards Fuel Sub-Charge

Adjustment. The action of the APERC and the APEPDCL in collecting the Fuel Sub-Charge

Adjustment for the year 2008-2009 from the C.C. Bills is challenged before the Hon’ble High

Court by filing writ appeal No.858/2011 by various consumers similar to that of the plaintiff.

The said writ appeal was allowed by the Hon’ble High Court on 20.01.2012 holding that

APERC has no power to grant permission to APEPDCL to claim Fuel Sub-Charge Adjustment

Charges for the financial year 2008-2009 by including them in running C.C. Bills from the

month of July, 2010 onwards. Therefore the plaintiff is constrained to file this suit for the

refunds of the amount illegally collected by the defendants along with interest @ 12% p.a.

3. The 2nd defendant filed written statement contending as under;

It is true that the Hon’ble High Court in writ appeal No.858/2011 held that AP

Electricity Regulatory Commission has no inherent power to enlarge the time even after the

expiry of stipulated time for submitting Fuel Sub-Charge Adjustment claims. By taking

reports to Regulation 59 of business regulations and the claims for the financial year 2008-

2009 are time barred and the consumers are entitled for refund collected from them by

including them in their C.C. Bills. However aggrieved by the Judgment of the Hon’ble High

Court in the said writ appeal dated 20.12.2012 an SLP was filed before the Hob’ble Supreme

Court under SLP No’s.13785-13937 of 2012 and while admitting the said SLP’s the Hon’ble

Supreme Court has ordered stay of refund of amount already collected till the disposal of the

said SLP. In view of the said stay granted by the Hon’ble Supreme Court the plaintiff has no

cause of action to file this suit.

4. The defendants 1 and 3 filed a joint memo adopting the written statement of

defendant No.2.

5. Based on the above pleadings following issues were framed for trial;

a) Whether the plaintiff is entitled to refund of the amount as prayed for?

b) Whether the plaintiff is entitled to interest as prayed for?

c) To what relief?
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6. During the course of trial the plaintiff has got examined PW1 and marked

Exs.A1 to A31. On behalf of the defendant DW.1 was examined and the documents were

marked.

7. Heard the arguments submitted by both sides.

8. ISSUE NO’S.1 & 2:

It is an admitted fact that taking advantage of the order passed by the APERC the

defendants have collected Fuel Sub-Charge Adjustment Charges for the years 2008-2009

from the monthly C.C. Bills of the plaintiff from the month of July, 2010 onwards. It is also an

admitted fact in that process a total sum of Rs.5,99,994.60ps was collected from the plaintiff.

It is also an admitted fact that the Hon’ble High Court in its Judgment in writ appeal

No.858/2011 has held that APERC has no power under Sec.59 of business regulations to enlarge

the time stipulated in regulation 45 – B (4) for the purpose of entertaining the applications of

DISCOMS for determination of FSA and such claims for the financial year 2008-2009 are

hopelessly time barred. It is also an admitted fact on the strength of said Judgment passed by

the Hon’ble High Court the plaintiff has filed the present suit for recovery of FSA Charges

collected from him for the year 2008-2009. It is also an admitted fact that the defendants

have preferred Special Leave to Appeal (Civil No’s.13785-13937/2012) to the Hon’ble Supreme

Court challenging the order of the Hon’ble High Court. It is also an admitted fact the Hon’ble

Supreme Court admitted as SLP and ordered stay on the refund of amount already collected.

Therefore as the order passed by the Hon’ble High Court has been stayed by the Hon’ble

Supreme Court the petitioner cannot ask for refund of amount until the stay is vacated or the

order of the Hon’ble High Court is upheld by the Hon’ble Supreme Court. However as the

petitioner cannot be forced to approach this Court again for the same relief this Court is

inclined to decree this suit subject to the result of SLP No’s.13785-13937/2012.

9. Issue No.3:

In the result this suit is decreed with costs subject to the result of special leave to

appeal (Civil No’s.13785-13937/2012) pending before the Supreme Court for a sum of
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Rs.7,77,046.83ps along with subsequent interest @ 12% per annum from the date of the suit to

till the date of realization.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in the open court, this the 30th day of January, 2019.

sd/- M.Ramakrishnam Raju,

Prl. Senior Civil Judge,
Rajamahendravaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANT:

P.W.1: Y.V.Dorayya D.W.1: G.V.Aruna Kumari

DOCUMENTS MARKED
FOR PLAINTIFF:

Ex.A.1: Attested Xerox copy of the certificate of incorporation of the petitioner under
Companies Act.
Ex.A.2: Xerox copy of the resolution dated 05.09.2003 of Board of Directors of the plaintiffs
company.
Ex.A.3: Proceedings No. APERC/Secy/Jt.Dir (Tariff-Engg.)/No.05.
Ex.A.4: Demand Notice dated 22.07.2010
Ex.A.5: Demand Notice dated 26.08.2010
Ex.A.6: Demand Notice dated 22.09.2010
Ex.A.7: Demand Notice dated 22.10.2010
Ex.A.8: Demand Notice dated 22.11.2010
Ex.A.9: Demand Notice dated 22.12.2010
Ex.A.10: Demand Notice dated 22.01.2011
Ex.A.11: Demand Notice dated 26.02.2011
Ex.A.12: Demand Notice dated 26.03.2011
Ex.A.13: Demand Notice dated 26.04.2011
Ex.A.14: Demand Notice dated 26.05.2011
Ex.A.15: Demand Notice dated 26.06.2011
Ex.A.16: Office copy of the letter dated 05.08.2010
Ex.A.17: Office copy of the letter dated 09.09.2010
Ex.A.18: Office copy of the letter dated 06.10.2010
Ex.A.19: Office copy of the letter dated 09.11.2010
Ex.A.20: Office copy of the letter dated 06.12.2010
Ex.A.21: Office copy of the letter dated 05.01.2011
Ex.A.22: Office copy of the letter dated 05.02.2011
Ex.A.23: Office copy of the letter dated 12.03.2011
Ex.A.24: Office copy of the letter dated 09.04.2011
Ex.A.25: Office copy of the letter dated 10.05.2011
Ex.A.26: Office copy of the letter dated 09.06.2011
Ex.A.27: Office copy of the letter dated 09.07.2011
Ex.A.28: Bunch of courier acknowledgements.
Ex.A.29: Office copy of the Regd. Legal Notice dated 24.05.2013
Ex.A.30: Acknowledgement of the 2nd defendant dated 31.05.2013
Ex.A.31: Acknowledgement of the 3rd defendant dated 29.05.2013.

FOR DEFENDANT: Nil.

sd/- M.Ramakrishnam Raju,

Prl. Senior Civil Judge,
Rajamahendravaram.