Delhi District Court
Sh. Bisheshwar Nath And Company vs Bses Rajdhani Power Ltd on 22 October, 2008
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IN THE COURT OF SH.S.S.HANDA
ADDITIONAL DISTRICT JUDGE
DELHI
Civil Suit No.4/2006
In the matter of
Sh. Bisheshwar Nath and Company
B.9 Rewari Line Industrial Area
Phase.1, New Delhi
...Plaintiff
Vs.
BSES Rajdhani Power Ltd.
Through its Chief Executive Officer
BSES Bhawan, Nehru Place, New Delhi
Service to be effected through its
Legal Cell/Office at Andrewganj Market
New Delhi.
...Defendant
Date of institution : 14.01.2000
Date of arguments : 18.10.2008
Date of Decision : 22.10.2008
Present:Sh. A.K.Gupta, Ld. Counsel for the
plaintiff.
Sh. Ashok Kumar, Ld. Counsel for
the defendant.
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JUDGMENT
Suit for Declaration and Permanent Injunction Precisely, the plaintiff instituted the civil suit challenging the legality and validity of the bills raised by the defendant Company on basis of reading of 'defective meter bearing No.0005'.
2. Admittedly, the plaintiff is the registered consumer of connection No.XI/1179 vide meter No.0005 (disputed meter) installed at B-9, Mayapuri, New Delhi (said premises).
The previous three meters removed on the complaint of the plaintiff were stated to be defective (The reference is made to the deposition of DW-3) who admitted these to be defective as these were showing abnormal Reading. It was stated that out of the computer agency of the 'consumer' has shown the abnormality in the said meter when the same was tested on 19.06.1997; and the officials of the defendant rightly came to the conclusion that the meter had become defective and advised the plaintiff to deposit Rs.2000/- for installing the correct meter which was duly deposited by plaintiff on 25.07.1997 vide receipt :3: No.1990 Ex. DW2/D1. But the defendant failed to replace the defective meter. That the defendant failed to take into account the letter dated 06.08.1996 observation in the meter reading book as well as by cumulative tampered information received from M/s P.I.C Industries showing the meter to be defective.
The defendant till date has failed to replace the meter only on the plea that the manufacturer of the meters who has been supplying the meter in bulk to the defendant namely M/s P.I.E.Industries have opined that the meter is correct ignoring the basic fact that the manufacturer who has been supplying the meter, cannot say admittedly that its meters are defective. The 'dispute or difference' having arisen the defendant should send the case to the independent authority for checking u/s 26(6) of the Indian Electricity Act 1910, (the Act) the meter but the defendant has failed to do so.
It is further stated by the defendant that the impugned demand of the defendant is not payable at all which is known to its officials also as same is based upon defective meter and the plaintiff is not liable to pay the bills continuosly on the basis of the defective meter.
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3. Accordingly, the plaintiff prayed for a decree of declaration thereby declaring that the impugned bill for Rs.6,99,685.10 paise and further raising of such bill on the basis of said defective meter in respect of connection No.XI/1179 M.No.005 installed at B.9, Rewari Line, Industrial Area, Mayapuri, New delhi are illegal, null and void, not pay able by the plaintiff in any manner whatsoever,
(ii) further a decree for permanent restraining defendant 'from disconnecting the supply of the connection no.XI/1179 installed at B.9, Rewari Line, Industrial Area, Mayapuri, New Delhi raised on the basis of said defective meter in future including the impugned bill of Rs.6,99,685.10, in any manner whatsoever.'
4. The defendant contested the suit with the six specific preliminary objections.
Firstly, that the defendant has filed its written statement and taken the objection that the present suit is liable to be stayed as a previously instituted suit between the parties bearing No.1386/99 is pending in the court of Sh. Sanjay Kumar, CJ, Delhi and secondly further the present suit is not maintainable in the eyes of law as the :5: same is barred by limitation as the plaintiff in the present suit wants to get declared the demand of Rs.6,99,685.10p. as null and void raised by defendant on the basis of meter reading book on 21.07.1997 as per article 58 of Limitation Act, a declaration can be sought within a period of three years when the cause of action first arose. Thirdly, defendant has further taken the objection that the suit has not been properly valued for the purpose of Court fee and fourthly has no jurisdiction; and fifthly no course of action and lastly the plaintiff has not come to the court with clean hands.
On merits it is admitted that a new meter was installed on 28.01.1997 as the MDI of the old meter was defective, however the other parameters was in order. Rest of the submission of the plaintiff that the meter was showing abnormal reading is incorrect as on testing, the meter was found to be within permissible limit of error.
The defendant has rightly raised the bill as per meter reading as when the meter was tested the same was found in order and result was found within permissible limit. The defendant further submitted that it is evident from the report of M/s P.I.E. Industries. The defendant further stayed :6: that it is wrong to say that the meter is defective or that the same be sent to independent laboratory for checking. The defendant further says that the meter installed at site is correct and the plaintiff is liable to pay the amount of Rs.6,99,685.10p. which was raised on actual consumption basis.
The defendant further stated that the plaintiff has deliberately inserted the prayer which is beyond the scope of suit as the plaintiff has not specifically challenged other bills except the bill of Rs.6,99,685.10p. It is submitted that the prayer clause is beyond the scope of the suit as well as relief claimed. The suit is, thus, liable to be dismissed having not been properly valued for the purpose of Court fee and jurisdiction.
5 Vide order dated 03.06.2006, the following issues are reframed for trial:
Issues (I) Whether suit is liable to be stayed as plaintiff earlier instituted a suit which is still pending before Sh. Sanjay Kumar, Civil Judge, Delhi. OPP.
(II) Whether suit is barred by period :7: of limitation?OPD.
(III) Whether plaintiff concealed the material facts, if so, to what effect?OPD. (IV) Whether on checking of electricity meter by the officials of the defendant it was found running slow and if so to what effect?OPD.
(V) Whether defendant raised the electricity bill in question illegally and incorrectly? OPP (VI) Whether plaintiff is entitled for the relief of declaration as prayed for?OPP (VII) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?OPP (VIII) Whether the amended written statement/ written statement has been filed by duly authorized person? If not, can suit be decreed on this ground?(OPParties) (IX) Whether the defendant is entitled to recover late payment surcharges on the balance bill amount of 25%?(OPD) (X) Relief.
Vide order dated 11.03.2008, an additional issue No.5(a) was framed as below:
V(a) "Whether the plaintiff is entitled for :8: refund of the amount paid by him on the illegal and incorrect electricity bills raised by the defendant?OPP"
6. To substantiate its case for the plaintiff, PW-1 Sh. R.K.Bansal was examined. He relied upon the documents i.e. photocopy of the attorney which is Ex. PW1/1, GPA dated 27.03.2003 which is Ex. PW1/2, letter dated 06.08.1996 received from Delhi Vidyut Board which is Ex. PW1/3, meter card which is Ex. PW1/4, Receipt dated 25.07.1997 which is Ex. PW1/5 and the original electricity bill which is Ex. PW1/6. Some documents were also tendered in the cross of defendant's witnesses.
Apart from this Mr. H.R.Bhatia, Retired Chief Engineer, DVB was examined as PW-2 who tender evidence by way of affidavit Ex. P2. He referred in his evidence his expert opinion as Ex. PW2/1.
7. For the defendant DW1 to DW5 were examined. They tendered their evidence by way of their affidavits.
DW1 tendered the documents Ex. DW1/1 to DW1/7.
:9: DW2 tendered the documents Ex. also referred the documents Ex. DW1/1 to DW1/7. DW1/7 is replacing of the defective meter report dated 22.02.2006.
DW3 made the reference Ex. DW1/1 to DW1/2.
DW4 made the reference documents Ex. DW1/3 to DW1/5 and DW1/6.
DW5 was summoned by the defendant from NPL to prove the calibration certificate dated 19.03.2001. However, for weeding out of the records, he did not prove the requisite certificate.
8. During the course of arguments, Mr. A.K.Gupta, Ld. Counsel for the plaintiff and Mr. Ashok Kumar, Ld. Counsel for the defendant relied upon a number of case laws.
Ld. Counsel for the plaintiff amongest other; relied upon:
(i) Major Zorawar Singh Vs. MCD & Anr., 44(1991) DLT 314.
(ii) Ansal Properties & Industries (P) Ltd. Vs. Chander Bhan Kohli & Ors, 44(1991) DLT 316(DB).
(iii) Delhi Brass & metal Works Limited Vs. Delhi Vidyut Board & Anr., 115(2004) DLT 243.
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(iv) Municipal Corporation of Delhi (DESU) Vs. Mr. H.D.Shourie, 53(1994) DLT 1 (DB).
(v) Sunita Rathore Vs. NDPL, 126(2006) DLT 517.
(vi) Ram Singh Vs. BSES Rajdhani Power Ltd., 111(2004) DLT
550.
(vii) BSES Rajdhani Power Ltd. Vs. Ashok Kumar, CM (M) No.789/2007
(viii) Smt. Sheila Devi Vs. Sh. Krishan Lal, Indian Law Reports, ILR(1974)II Delhi.
(ix) Gobind Gopal Vs. Banwari Lal, AIR 1983 Delhi 323
(x) 1986, Rajdhani Law Reporter 362.
(xi) Delhi High Court Vs. BSES Rajdhani Power Ltd., 145 (2007) DLT 390.
(xii)Bomaby Electricity Supply & Transport Undertaking Vs. Laffans (India) (P) Ltd. & Anr., (2005) 4 SCC 327(relied upon also by Ld. Counsel for the plaintiff.
(iii) Ld. counsel for the defendant on the count of meter being not defective relied upon:
(i) The Premier Ice Factory, Kanpur Vs. The Commercial Manager Kanpur Electricity Supply Administration & Anr., AIR 1988 Allahabad 8.
(ii) Bharat Barrel and Drum Mfg. Co. Ltd. V/s Municipal Corporation of Greater Bombay & Ors., AIR, 1985 Bombay 415.
(iii) M/s Panchsheel Poly clinic/Nursing Home & Anr. Vs. District Magistrate, Meerut & Ors., AIR 1998, Allahabad
302.
(iv) Bombay Electricity Supply & Transport Undertaking V/s Laffans (India) (P) Ltd. & Anr.(2005) 4 SCC 327
(ii) On the plea that the suit in the present :11: form is not maintainable; and has not been properly valued and ad-velorum court fee has to be paid; he relied upon:
(i) Kamleshwar Kishore Singh Vs. Parasnath Singh & Ors, 2001 IX AD (SC) 559.
(ii) Sarjiwan Singh Vs. DVB, 110(2004) DLT 633.
(iii) Sudhanshu M.Pvt. Ltd. V/s BSES Yamuna Power Limited, 125(2005) DLT 647.
(iv) Rampur Distillery & Chemical Company V/s Union of India, 1995 (32) DRJ 733.
(v) Time Properties & Promoters Vs. Delhi Development Authority, AIR 1986, DEL.317.
(vi) Shamsher Singh Vs. Rajender Prasad, AIR 1973 SC 2384.
(vii) Sujir Keshav Nayak Vs. Sujit Ganesh Nayak, AIR 1992 SC 1526.
(viii) Haresh Pharma Chemical Vs. M/s Max GB Ltd. & Anr., 1998 V AD(Delhi)931.
(ix) Bharat Sanchar Nigam Ltd. Vs. All India Bharat Sanchar Nigam Executives Association (Regd). & Ors.
(x) Pfizer Products Inc. Vs. B.L.Co & Ors., 129(2006) DLT
327.
With due regard; relevant case law to the issues involved has been referred to at the relevant place.
From the pleadings of the parties, evidence led on record, submissions made and relevant legal provisions and judicial pronouncements; my findings on the issues are as :12: follows:
Issue No.I
9. It lay upon the defendant to show the grounds; to stay the suit in view of pendency of earlier suit.
(ii) The issue has not been pressed during the court of arguments.
(iii) It was admitted in the course of arguments that the civil suit mentioned was still at the stage of recording of evidence; that the defendant had moved application before the Ld. District & Sessions Judge, Delhi for consolidation of the cases but the application was dismissed.
(iv) The case being independent of the suit mentioned, no cogent grounds are made out or shown to stay this civil suit. Rather this is 'time bound' case per order of the Hon'ble High Court. There was no reason to stay the present suit on the ground of pendency of suit earlier instituted between the parties.
Issue is accordingly answered against the defendant.
:13: Issue No.II
10. The burden to prove the issue lay upon the defendant.
(ii) During the course of arguments, the issue was not pressed.
(iii) Even in the written statement in the objection no specific particulars of suit being barred by limitation are specified. The plea is sweeping as it does not specify as to for what relevant and material facts, the suit is barred by limitation.
(iv) The bald plea that meter reading being of 21.07.1997; suit instituted on 14.01.2000 is barred by limitation is not tenable.
Issue is accordingly answered against the defendant.
Issue No.III
11. The burden to prove this issue also lay upon the defendant.
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(ii) This issue was also not pressed during the course of arguments.
(iii) This preliminary objection does not highlight as to what material facts were concealed by the plaintiff. Nor the same were proved in evidence.
(iv) The objection is sweeping and not supported by of evidence; and hence cannot be looked into.
Issue is answered against the defendant.
Issue No.IV
12. The burden to prove the issue lay upon the defendant.
(ii) Against the plea of the plaintiff that the meter was defective and was not recording the correct consumption as laid u/s 26 (i) of the Act; the defendant had set up the plea that the 'disputed meter' was rather running slow.
(iii) But no evidence is led by the defendant to discharge the burden.
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(iv) The averments on this count thus have gone not proved.
As a result thereof, issue is answered against the defendant.
Issue No.V, V(a), VI, VII & IX
12. The issue being interwoven; require common discussion and hence are taken up together.
(i) Basically, the plaintiff has to prove that 'the meter was defective'. And the plaintiff was billed on the basis of reading of 'defective meter'.
Whereas the defendant as claimed has to established that the meter installed on 28.01.1997 against the previous connection was 'a correct meter' Section 26(1) of the Act.
(ii) It was demonstrated from the record that the previous three meters installed were defective. On 28.01.1997, the 'disputed meter' was installed.
(iii) The plaintiff received the First bill which was allegedly showing consumption on higher side as compared to actual usage of electricity.
:16: Accordingly the plaintiff submitted a complaint dated 14.3.1997 which is Ex.PW1/X1. The plaintiff also deposited the meter testing fee vide receipt dated 25.7.1997 which is Ex.PW1/5. The plaintiff submitted another letter for testing the meter which is dated 29.9.1997 and the same is Ex PW1/X-
2.
(iv) However, the disputed meter was never tested by the defendant in MTD Laboratory. Secondly, as mandated u/s 26(6) of the Act, the meter was never sent to the 'Electrical Inspector' for testing. This fact is admitted by DW-3 and DW- 4 in their cross examination. PW-1 testified that the meter was fast by 30%. Whereas no report about the correctness of the disputed meter is proved on record.
(v) Deposition of DW1 to DW4 were referred to demolish the plea of the plaintiffs. It was submitted by Sh. Ashok Kumar, Ld. Counsel for the defendant that (i) In the Premier Ice Factory, Kanpur Vs. The Commercial Manager Kanpur Electricity Supply Administration & ANR (Supra) it was held that sub section 6 of Section 26 does not cast any duty on the 'licensee' to refer any 'difference or dispute' in respect of any meter for determination its correctness to the Electrical :17: Inspector. If any difference or dispute was raised by petitioner it was for him to make a reference to the Electrical Inspector for its determination.
He also cited on this count;
Bharat Barrel and drum Mfg. Co. Ltd. Vs. Municipal Corporation of Greater Bombay & Ors. (Supra).
& M/s. Panchsheel Poly Clinic / Nursing Home & Anr. Vs. District Magistrate, Meerut & Ors. (Supra).
& MCD (DESU) Vs.S.D. Shourie - reported as 53 (1994) DLT 1 DB - The Hon'ble High Court of Delhi.
13. As referred to by Sh. A.K.Gupta, Ld. Counsel for the plaintiff at the outset on this count; deposition of DW3 is material. The relevant portion of which reads as under:
"It is correct that all the three meters after removal were sent to Lab. MTD for testing .... It is correct that I have no MTD Lab :18: report to show that the disputed meter was found OK."
(ii) Similarly DW-4 in his cross examination had stated that the MTD Laboratory of the Defendant was at Shanker Road, New Delhi and the meter always remained in the premises of the plaintiff and was never taken out for MTD Laboratory.
(iii) Mr. A.K.Gupta further submitted that the plaintiff can only file a complaint before the defendant and deposit the meter testing fee to get the meter tested as per law. As 'dispute or difference' arose; then it was for the defendant to refer the matter to the Electrical Inspector Under section 26 (6) of the Act. Reference may also be made to the judgment of Hon'ble Supreme Court titled as "Bombay electricity supply and Transport Undertaking Vs. Laffans India Private Limited" reported in AIR 2005 (SC) 2486, wherein the Hon'ble Supreme Court had approved the ratio laid down in Belwal Spinning Mills's case that Belwal Spinning Mills; that when 'dispute or difference' arose; in the alike facts, Defendant company was legally bound to refer the matter to the Electrical Inspector.
(iv) That there was no occasion for the plaintiff/consumer to approach the 'Electrical :19: Inspector' directly, as borne from the record that 'dispute or difference' had risen about the correctness of the meter. Otherwise there was no reason for the defendant company to refer the meter to P1/5 PI Industries. The plaintiff U/s 26 (6) has only to deposit the meter testing fee and request the plaintiff to test the meter. It was the liability of the defendant only; to refer the matter to the Electrical Inspector for getting the meter tested after accepting of meter testing fee from the plaintiff / consumer. However, the defendant malafidely failed to refer the matter to the Electrical Inspector and get the meter tested in a statutory manner as per procedure prescribed under law. In the estimation of the plaintiff, as per the comparison of the actual usage of electricity with the consumption recorded by the aforesaid disputed meter, the disputed meter was running fast by about 30%, as such the plaintiff is not liable to pay the bills; raised on the basis of the aforesaid defective meter.
(v) In respect to the report of M/s . P.I.E Industries which is Ex.DW1/4; Ld. Counsel for the plaintiff submitted that firstly neither the original of the same has been produced by the defendant, nor the writer of the same or the person who had prepared that report had been produced by :20: the defendant in evidence and as such the same is liable to be ignored altogether and the same has not been proved as required under law. And secondly; in the alleged data of DW1/4 the working of the meter has been shown as abnormal on phase potential but despite that the meter working has been alleged to be correct in the accompanying letter. This aspect was also not argued / replied by the defendant during the final arguments.
DW-2 in his cross examination stated as under :
"It is correct that if the meter is recording anything abnormally namely load imbalance, MDI, KBAH, KWAH, Hours timer or any other option given in the meter data then the working of the meter has to be treated as abnormal ..... I have not brought the original of Ex.PW1/4. I cannot say as to who has prepared Ex.DW1/4. There is no mention about the name of official who has prepared the record but it was prepared by PI Industry. I have no knowledge whether the plaintiff was given show cause notice or hearing before the Ex.DW1/4 ...... It is correct that plaintiff had never made any request for the meter checking by PI Industries specifically."
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(vi) The defendant is also relying on report Ex.DW1/2 which is the pilot meter report dated 19.03.1998. It is submitted that testing of any meter through installation of pilot meter is against the statutory provisions of Section 26 (6) of Indian Electricity Act and the same cannot over rule the statute. Secondly, even the pilot meter which was installed on 19.02.1998 was not the correct meter and the defendant has failed to prove that the pilot meter on 19.02.1998 was the correct meter as accuracy report was not given to the plaintiff.
(vii) Ld. Counsel for the plaintiff further submitted that no accuracy report of the pilot meter was ever supplied to the plaintiff at the time of installation of the meter or at any time thereafter. DW-2 in his cross examination had admitted as under :-
".... it is further wrong to suggest that any such pilot meter was defective. I have seen the record and as per record I cannot say as to whether the pilot meter accuracy record was given to the plaintiff or not. I have not been able to find out any acknowledgment in record with this."
Further , the DW-3 in his cross
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examination regarding the pilot meter report dated 19.03.1998 (DW1/1 and DW1/2) stated as under:-
"I have not brought the accuracy report of the pilot meter as the same was not summoned. I cannot bring the accuracy report of the pilot meter even if I am given time to bring the same...."
(viii) The defendant is also relying upon a pilot meter report dated 22.03.2001 which is Ex.DW1/3. It is submitted that the said pilot meter was also defective and the defendant has failed to prove that the said pilot meter was working correctly. No accuracy report of the said pilot meter was supplied by the defendant at the time of installation or at any time thereafter. A specific demand was also made to the defendant in this regard which fact is duly mentioned on Ex.DW4/E1.
Further, even DW4 in his cross examination admitted the said fact and stated as under :-
"I had not given the meter testing report / accuracy report of the pilot meter which was installed by me on 22.03.2001 at plaintiff's premises...."
:23: DW-4 also admitted as under :-
"Mr. Rajender and Mr. Kishan Lal were not present at site when the energy meter was installed on 22.03.2001. The signatures of Mr. Rajender Kumar and Mr. Kishan Lal was obtained as representatie of consumer on Ex.DW1/3. However, I have seen the Ex.DW1/3 wherein the signature of said Rajender Kumar and Mr. Kishan Lal are not appended".
(ix) In Belwal Spinning Mills Ltd. etc. the Hon'ble Apex Court summarised the scheme under the Electricity Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer so that consumption of electricity is computed on the basis of reading in the meter. The scheme also reveals that unilateral decision of either of the parties about the correct status of the meter is not to be accepted by the other party if the other party raises objection as to the status of the matter. Whenever both parties do not accept a meter to be correct and the dispute is raised, such dispute is got to be resolved by referring to a statutory authority under Section 26 (6), namely, the 'Electrical Inspector'.
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13. The conclusion from the above analysis is
(i) that the previous meter was found defective. The disputed meter was installed on 28.01.1997. Despite of the complaint lodged; the defendant did not 'refer' the 'disputed meter' for the report of Electrical Inspector. As is evident from the complaint lodged and fee deposited by the plaintiff; 'difference or dispute' arose about the correctness of the disputed meter. But it was not referred to Electrical Inspector u/s 26(6) of the Act.
(ii) Secondly, in this perspective instead of referring the meter for ascertaining its correctness by the Electrical Inspector, the 'disputed meter' was referred to M/s PI Industries; in violation of the statutory provisions. M/s PI industries admittedly was manufacturer of the disputed meter. Therefore, it having not been referred to the prescribed authority and rather to the interested party; its report cannot be relied upon. Even, M/s. PI Industries did not check the system scientifically. Further its own 'meter reading report' shows that working of the meter was abnormal.
(iii) Thirdly, it is admitted by DW-4 that the 'disputed meter' was not sent to MTD. Ironically :25: report from its manufacturer; against the norms, was procured. It remained installed in the premises till it was removed on 22.02.2006.
(iv) Fourthly, while installing pilot meter despite of request and as required, accuracy report of pilot meter was not given. In the Act there is no provision of installation of pilot meter nor definition of pilot meter is given (reference of the check meter is made in Belwal Spinning Ltd Company's case). If it was so provided in the office order of the defendant company is not proved on record. It is settled position of law that a private company cannot frame and thrust arbitrary rules, which may be violative of the statutory provisions. As laid by His lordship Mr. Justice Pradeep Nandrajog, in Indra Prastha Ice and Cold Storaye Ltd. case (Supra) 'statutory power must be exercised in furtherance of object for which power is vested'. But herein the defendant company intentionally referred the disputed meter first to M/s PI Industries; and did not further the object of statute by not referring it to the Electrical Inspector u/s 26(6) of the Act.
(v) It remains a fact that the pilot meter was as ordinary meter as the disputed or any other meter. The purpose of pilot meter was to check the :26: consumption pattern for comparative study with the disputed meter. The accuracy report of the pilot meter was not given. For the reasons, the meter reading report does not inspire confidence. The pilot meter was not foolproof consumption reading apparatus. And amazingly, while replacing the disputed meter in question on 22.02.2006, another meter was installed. The accuracy report of the disputed meter was not got checked. While accuracy report of new meter installed was checked as per Ex. DW1/7. This proves malafides on the part of the defendant that had they checked the accuracy report of the disputed meter it may have gone adverse to the defendant. This also supports the contention that at the time of installation of new meters, defendant company used to give 'the accuracy report'. DW-3 had admitted that there is no MTD report to show that the disputed meter was found OK and whereas the accuracy report/reports of the pilot meter is/are not proved on record.
14. The irresistible conclusion is that the meter was defective running fast. The deposition of PW1; there being no contrary material has to be believed that it was running fast by 30%.
(I) In this perspective, Ld. Counsel for the plaintiff relied upon:
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(i) Bombay Electric Supply and Transport Undertaking Vs. Laffans Pvt. Ltd. (Supra).
(ii) Belwal Spinning Mills Ltd. (Supra).
(iii) Common Cause & Others Vs. DMC (Supra); and sought quashing of the bills for the impugned period and refund thereof.
In Common Cause and other (Supra), the Hon'ble High Court of Delhi held that in the case 'wherein demand was raised on account of defective electric meters and provisions of Section 26(6) of the Act were not adhered to, such a demand is liable to be quashed.'
(ii) In Sunita Rathore Vs. NDPL (supra). Hon'ble High Court of Delhi held that 'the bill raised on the reading of defective meter is not recoverable and the plaintiff is entitled to its refund thereof'.
(iii) Ld. Counsel for the plaintiff further submitted that as per Amnesty Scheme, even the theft bills were given concession @ 40% in heavy industrial load cases. He further submitted that while deciding his applications, this court and the Hon'ble High Court has been allowing deposit of bills less by 25%. Thus, basically, he stressed and claimed that the bills for the impugned period :28: being illegal; the plaintiff is entitled to refund of the entire amount.
(iv) However, this submission of Ld. Counsel for the plaintiff does not further the ends of justice. After all the plaintiff had consumed the electricity during the impugned period. In the given case, we cannot return back to the provisions laid u/s 26 (6) of the Act as the procedure was not adhered to by the defendant company. Reliance placed upon : Belwal Spinning Mills Ltd. (Supra).
Its also not plausible to apply the principal of average consumption as the prior three electricity meters were also found to be defective. Thus average consumption principle also stands ruled out.
In this backdrop, this court is left with none but only one option and that is awarding of the refund @ 30% of the bills based upon the reading of defective meter, for the impugned period i.e December 1997 to 22.02.2006. Because the evidence on record is that the defective meter was running fast @ 30%.
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15. In this background, it is pertinent to consider the submissions of the Ld. Counsel for the plaintiff for grant of relief of declaration and permanent injunction as prayed for. Of course, in this context initially the objection taken by Ld. Counsel for the defendant need be taken into consideration. The first objection raised for the defendant was that the plaintiff has not challenged the report submitted by M/s. P.I Industries dated 25.07.1997 Ex.DW1/4. Secondly, that as per the report dated 19.03.1998 Ex.DW1/3; is not disproved. Thirdly, the reading recorded at the time of installation of pilot meter on 22.03.2001 and removal of the same on 23.04.2001 has not been challenged. Fourthly, the plaintiff is pressing an infructuous suit as per order of the Hon'ble High Court. Fifthly, the plaintiff has not valued the suit properly and has not paid the ad-velorum court fee.
16(i) On the first count as concluded above, the report of M/s PI Industries dated 25.07.1997 (Ex. DW1/4) being void-ab-initio; no declaration about its invalidity was required.
(ii) On the second count as well; as discussed above, the meter being defective, and as not proved :30: on record; the report dated 19.03.1998 (DW1/3) cannot be deemed as valid and relied upon.
(iii) On the third count, pilot meter report for the period 22.03.2006 to 23.04.2001; itself showing reading of meter abnormal; and not proved on record; as discussed above cannot be relied upon.
(iv) Nothing is shown to prove that as per order of the Hon'ble High Court; suit of the plaintiff was infructuous. As per the record the plaintiff had been paying and the defendant had been accepting the bills as ordered/directed by the court/Hon'ble High Court. At no earlier stages such plea was ever raised.
(v) On the objection of valuation, the plaintiff is fully assisted by the Full Bench of the Hon'ble High Court of Delhi in Sheela Devi Vs. Shri Kishan Lal case, reported in 1974 Vol. II, ILR Delhi page 491.
'Where a bill has been raised by the Electricity department, which is prima facie legal, a declaration must be prayed for the effect that the bill is incorrect or illegal before the plaintiff can legally pray for an injunction :31: against the recoveries made on the basis of such bill. And where prima facie bill is illegal; the suit need not be valued at its liquidated value nor court fee is payable u/s of 7(iv) of th Court Fee Act; on ad-velorum basis.' On merits herein; while it is found that bills were based on defective meter were not legal; the premise of valuation of the suit on liquidated bills shall not be applicable nor court fee shall be payable on ad-valorum basis.
(vi) Lastly; the Hon'ble High Court of Delhi vide order dated 21.07.2008 in CM (Main) No. 789/2007 has held that Section 42 (5) does not bar the jurisdiction of the Civil Court.
Accordingly issues are answered to the effect:
The disputed meter was defective. Provisions of Section 26(6) of the Act were not followed and adhered to by the defendant company. As a consequence thereof the plaintiff was entitled to refund @ 30% on the bills based upon defective meter for the impugned period i.e. December 1997 to 22.02.2006; and the consequential attending relief thereto. Whereas in the given background; claim of :32: the defendant company for the late payment surcharge having not been proved and not due, is declined.
Issues are accordingly answered. Issue No.VIII
17. The burden to prove the issue lay upon the plaintiff.
(ii) On my perusal I find that after the amended written statement was filed, no replication was filed by the plaintiff.
(iii) There is no objection on record to the effect that the amended written statement/original written statement has not been filed by duly authorised person.
(iv) My Ld. Predecessor while framing the issues on 03.06.2006 supported this proposition. But an issue was framed with a view that the defendant has to establish itself that written statement/amended written statement was filed by the duly authorised person.
(v) On this aspect, no evidence is led by the defendant and thus as submitted by Ld. Counsel for the plaintiff the burden of having signed amended written statement/written statement by duly :33: authorised person is not discharged on record. But at the same time the suit of the plaintiff as claimed cannot be decreed on this count alone. The presumption need be drawn in favour of the defendant having filed the amended written statement/ written statement by a competent and authorised person.
Issue is accordingly answered against the plaintiff and in favour of the defendant.
18. Relief As a result of the findings on the issues as above; the suit of the plaintiff is partly decreed in the following terms:
(i) The plaintiff is awarded a decree of declaration being not liable to pay the bills amount for the impugned period (December 1999 to 22.02.2006) being based upon the defective meter;
to the extent of 30%; and as a consequence thereof, the defendant company is ordered to calculate the amount of the refund within 30 days hereof and refund the said amount to the plaintiff within 15 days thereof. In the event of non-refund of the said amount or part of it as above; the :34: amount/remaining amount shall be payable by the defendant company with interest @10% per annum; with option to the plaintiff to get the amount released from the security amount. And in case the security amount falls short; the remaining amount shall be forthwith refunded by the defendant company as above or if consented to by the plaintiff given adjustment in the future bills.
And further by a decree of permanent injunction the defendant company is injuncted not to disconnect the supply for non-payment of the supply of the said connection on the basis of non- payment of the aforesaid refund (recoverable) amount.
19. In the facts and circumstances of the case, no order as to costs.
20. Decree Sheet be drawn accordingly.
File be consigned to Record Room.
DICTATED & ANNOUNCED IN THE OPEN COURT (S.S.HANDA) on THIS 22nd DAY OF OCTOBER, 2008 ADDL. DISTRICT JUDGE DELHI :35: :36: :37: :38: