Tenaga Nasional Berhad v Rakan Cemerlang Sdn. Bhd. (BA-11ANCC-2-02/2017)

This is an appeal by the Appellant (Plaintiff) against the decision of the learned Magistrate of Shah Alam Magistrate’s Court for allowing the striking out application of the Respondent (Defendant) under Enclosure 6 pursuant to Order 18 Rule 19 of Rules of Court 2012(ROC 2012) with costs of RM3,000.00.

In this judgment, the parties will be referred to as they were in the Magistrates’ Court.

The Plaintiff filed this action against the Defendant on the 17th October2016. The Plaintiff claimed that an inspection was carried out on the Defendant’s meter on 18th June 2013and the Plaintiff discovered the meter was being tampered. The Plaintiff is claiming for an undercharged bill of electricity consumption which failed to be recorded accurately for the period of 30th August 2009 until 18th June 2013 amounting to RM50,542.99.00 in accordance with Section 38 (1) of Electricity Supply Act 1990 (Act 447).

Subsequently, the Defendant filed an application for striking out Plaintiff’s action, pleaded, inter alia that the action commenced by the Plaintiff was time barred under Section 6 (1) (a) of Limitation Act 1953. 3

The learned Magistrate in his ground of judgment (pages 10-17 of Record of Appeal) stated in agreement with the Defendant’s submissions that the Plaintiff’s action was time barred according to Section 6 (1) (a) of Limitation Act 1953 whilst relying on cases of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 CLJ 207 and Sampo Materials (M) Sdn Bhd v Tenaga Nasional Bhd [2015] 9 CLJ

Plaintiff’s submission [6] The learned counsel for the Plaintiff submitted that the action against the Defendant was not time barred as the act of meter tampering was only discovered on 18th June 2013 and the Plaintiff then only filed the Writ Summons together with the Statement of Claim on 17th October 2016. [7] The Plaintiff’s counsel averred that the cause of action accrued on the day the Plaintiff discovered the meter being tampered that is on 18th June 2013. [8] The Plaintiff’s counsel submitted the case of Pahlawan Sendirian Berhad lwn Tenaga Nasonal Berhad, Rayuan Sivil No. J-01(1M)- 455-2010 where the Court of Appeal opined, “We held that the cause of action accrued on 14/10/2003 ie when the Plaintiff found the meter was tempered with,…” 4 [9] The Plaintiff’s counsel refuted the cases quoted by the Defendant’s counsel arguing that the case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 CLJ 207 and the case of Sampo Materials (M) Sdn Bhd v Tenaga Nasional Bhd [2015] 9 CLJ 902 can be distinguished from the present case where the two cases dealt with Rule 11(2) of the Licensee Supply Regulations 1990 and not Section 38 (1) of the Electricity Supply Act 1990as in the present appeal. Defendant’s submission [10] The learned counsel for the Defendant on the other hand, submitted that the Plaintiff’s claim was obviously barred by limitation period. The Defendant’s counsel averred that the Plaintiff may only file this action before or by August 2013 as the cause of action accrued from 30th August 2009, that is the date when the shortfall occurred, albeit undiscovered, relying on the two cases. [11] In the case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 CLJ 207, the Defendant’s counsel submitted that the Federal court held that, “(2) A cause of action founded on a contract accrues on the date of its breach, and in the case of a debt, the cause of action arises at the time when the debt could first have been recovered by action. Between October 1996 and October 2002 the appellant had a right, albeit undiscovered, to the shortfall, which was a debt due from the respondent. Although the shortfall was discovered only 5 in January 2003, it remained that during the period between October 1996 and October 2002, the appellant was paid less than the sum calculated on the correct multiplier. Therefore, between October 1996 and October 2002, the appellant had a cause of action”. [12] The case of Sampo Materials (M) Sdn Bhd v Tenaga Nasional Bhd [2015] 9 CLJ 902 was referred by the Defendant’s counsel where the Court of Appeal stated, “The Plaintiff’s claim was founded on the agreement and therefor, the relevant provision governing the period of limitation in respect of the cause of action would be s.6(1)

of the Limitation Act 1953 (“the act’). The outstanding bill in the present case was calculated from 20th December 2000 and it was therefore the date when the shortfall occurred. Thus, although the shortfall was discovered on 17th November 2002, the plaintiff’s cause of action would have accrued on 20th December 2000 as by that date the plaintiff had a right, albeit undiscovered, to the shortfall. Consequently, the plaintiff’s claim was caught by limitation by virtue of s.6(1) (a) the Act”. APPEAL [13] Reverting to the facts as pleaded by the Plaintiff, the date of inspection of the Defendant’s meter was done on 18th June 2013. The Plaintiff had commenced this action on 17th October 2016 against the 6 Defendant claiming for an undercharged bill of electricity consumption which failed to be recorded accurately, calculated from the period of 30th August 2009 until 18th June 2013. [14] It is an established fact that the Plaintiff claimed for the unrecorded electricity usage prior to the date where the meter was evidently tampered by the Defendant that is on the date of inspection by the Plaintiff. [15] At the time this appeal was heard before this Court on 5.10.2017, the principle on cause of action accrued is as enunciated by the Federal Court case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 CLJ 207, as attributed by the counsel for the Defendant which stated that, “A cause of action founded on a contract accrues on the date of its breach, and in the case of a debt, the cause of action arises at the time when the debt could first have been recovered by action. Between October 1996 and October 2002 the appellant had a right, albeit undiscovered, to the shortfall, which was a debt due from the respondent”. [16] I stand to be guided by the principle of stare decisis and I am bound to follow the Federal Court case of Tenaga Nasional Bhd v Kamarstone (supra) case where the action based on contract, accrued when the debt was discovered that is from August 2009 which would have been time barred when the action was filed in October 2016. 7 [17] The principle in Tenaga Nasional Berhad v Kamarstone (supra) case stands at the time this appeal was heard before me until it is decided in the recent Federal Court case of Tenaga Nasional Berhad v Ichi-Ban Plastic

(M) Sdn Bhd Rayuan Sivil No. 02(f) -20-03/2015(P) together with five others, No. 02(f)-63-10/2015 (W), No. 02(f)-64-10/2015 (W), No. 02(f)-71- 10/2015(W), No. 02(f)-83-11/2015(B) and No.02(f)-86-11/2015(P) (30 January 2018), that for the recovery of loss of revenue in cases of meter tampering under section 38(3) of Supply Electricity Act 1990 is an entirely new statutory cause of action for Tenaga Nasional Berhad, where the specific right given under the statute to claim from the consumer is not subjected to section 6(1)(a) of Limitation Act 1953 (see paragraph 90 of the judgment). [18] Following the principle of Tenaga Nasional Berhad v Kamarstone (supra) case, the Plaintiff is time barred under section 6(1)(a) of Limitation Act 195. Hence, the appeal is dismissed with costs. Dated: 23 July 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 8 COUNSEL FOR THE APPELLANT/PLAINTIFF NOOR AMRAN BIN ABDUL JALIL Messrs Noor Amran & Co. Advocates & Solicitors 19-2, Level 2, Plaza Crystalville [1] Jalan 22A/70A, Desa Sri Hartamas 50480 Kuala Lumpur [Ref: NA.1789/15-TNB.SBG.KKA (sh)] Tel: 03-6203 2140 Fax: 03-6203 2782 COUNSEL FOR THE RESPONDENT/DEFENDANT SUBASHINI RAMAKRISHNAN Messrs Ganesan & Irmohizam Advocates & Solicitors C-3-6, Megan Avenue 1 189, Jalan Tun Razak 50400 Kuala Lumpur [Ref: GI/3718/16]