Delhi District Court
Sh. Satbir Singh vs North Delhi Power Limited on 20 February, 2015
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE SENIOR DIVISION
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 268/14
ID No. 02401C0311252009
Sh. Satbir Singh,
S/o Sh. Ram Narayan,
Village Kirari, Delhi. ............. plaintiff
vs.
North Delhi Power Limited,
Through Its C.E.O.,
Hudson Line, Kingsway Camp,
Delhi - 110009. ............. defendant
Date of Institution of Suit : 01041999
Date of reserve for judgment : 30012015
Date of announcement of Judgment : 20022015
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
Judgment :
1.The brief facts, as per averments of the plaint, are that the plaintiff had obtained the electricity connection through K. No.. 5151770659I.P. & 515 1770667I.L. Installed at VillageKirari, Delhi. That the premises of the plaintiff is in Lal Dora and on the basis of the lal dora certificate, the load of 7.5 k.w. was sanctioned to the plaintiff. That on 24071998 an inspection was alleged to be carried out by the officers of the defendant but at the time of the alleged inspection, the plaintiff or his authorised representative was not present. In the inspection report the load was arbitrarily mentioned as 18.93 k.w. without verifying the factual position. That the meter & service cable of the plaintiff was removed by the officers Suit No. 268/14 1/14 Satbir Singh vs NDPL of the defendant on 24071998 without any reason and before removing the meter & service line, no show cause notice was given & no opportunity of personal hearing was given by the defendant. That all the seals of the meter were intact and O.K., the defendant never verified the seals from any independent agency & hence, the action of the defendant is illegal. That the consumption pattern of the plaintiff was also never considered and no pilot meter was installed by the defendant. That the plaintiff has received a bill of Rs. 1,42,062.97P after the expiry of the due date, the bill was not previously received by the plaintiff and in the bill there is allegations of fraudulent abstraction of energy but the plaintiff has never indulged in F.A.E. Moreover, in the bill misuse charges has been levied whereas there is no misuse in the premises and hence the bill is illegal, arbitrary and unjustified. That the plaintiff has prayed to pass a decree of declaration and mandatory injunction in favour of the plaintiff thereby declaring the inspection reports and any other report dated 24071998 and bill in dispute as null and void and be quashed and directing the defendant, its officers to restore the supply through K. No. 515170659I.P. And 5151770667I.L. Installed at Village, Kirari, Delhi without insisting upon the payment of the bill amounting to Rs. 1,42,062.97P and to disconnect the supply after restoration of the supply on the basis of the abovesaid bill.
2. WS filed on behalf of the defendant wherein it is stated that the premises was inspected by joint team on 24071998 under direct supervision of Suit No. 268/14 2/14 Satbir Singh vs NDPL XEN (Enf)I, XEN(Enf)III and SDM, Kanjhawala and the connected load was found 18.04KW on IP connection and 0.88 KW on IL connection and user, Sh. Satish was using supply for electroplating and buffing and the reports were prepared vide P. No. 5598 and 307/46019 dated 27071998. That as per MTD report, all the half seals were found tampered and both the rivets also found tampered and terminal seal of meter was also not existing and hence, case of FAE was booked against the plaintiff. That then show cause notice was served to the plaintiff vide letter no.162 dated 30071998 giving personal hearing on 05081998 in response of which plaintiff submitted Lal Dora Certificate, paid electricity bills and undertaking on Rs. 2/ stamp paper admitting therein to pay DVB/defendant on account of loss of energy due to the theft of electricity noticed at his premises on 24071998 and after getting the approval of the competent authority, billing advice was sent to Dir(EDP) who subsequently raised the bill amounting to Rs. 1,42,062.97P on 4x3 basis payable by 21011999. Rest of the averments of the plaint have been denied as wrong.
3. Replication filed by the plaintiff, wherein it is stated that under the threat of lodging the FIR, the plaintiff has given undertaking but plaintiff has never indulged in any theft of electricity. Rest of the averments made in the WS have been denied and averments made in the plaint have been reiterated and reaffirmed.
4. During trial counsel for the plaintiff submitted that he is ready to Suit No. 268/14 3/14 Satbir Singh vs NDPL make the payment of 50% of the bill amounting to Rs. 142062.97 paisa for restoration of electricity supply and his statement was recorded separately in this regard on 06041999. In view of the statement of counsel for the plaintiff, the DVB was directed to restore the electricity supply of the plaintiff subject to condition that plaintiff shall deposit 50% of the above said bill within a week from today and DVB shall restore the supply within 3 days from the date when the plaintiff makes the payment vide Order dated 06041999. The Order is without prejudice to the rights and contentions of the parties and the same was continued till the disposal of the suit vide Order dated 17072000.
5. From the pleadings of the parties, following issues were framed vide Order dated 03102012:
1. Whether the plaintiff was indulging into fraudulent abstraction of energy in terms of the report dated 2407 1998?
2. Whether the plaintiff is liable to pay the bill raised on account of fraudulent abstraction of energy on the basis of report dated 24071998?
3. Whether the plaintiff is entitled to the relief as prayed for?
4. Relief.
6. In order to substantiate his case, the plaintiff filed and tendered his affidavit in evidence as PW1 and he was crossexamined on behalf of the Suit No. 268/14 4/14 Satbir Singh vs NDPL defendant. No other witness has been examined on behalf of the plaintiffs.
7. To prove its defence, DW1Sh. S.S. Antil and DW2Sh. K.P.S. Yadav were examined and crossexamined on behalf of the plaintiff and DW3Sh. B.L. Sharma, DW4Sh. R.S. Yadav and DW5Sh. G.S. Kale filed and tendered their affidavits and they all were crossexamined on behalf of the plaintiff. No other witness has been examined on behalf of the defendant.
8. I heard final arguments addressed by counsels for the parties. I considered the submissions of counsels for parties and evidence on record. My issue wise findings are as under: Findings on issue no. 1 : Whether the plaintiff was indulging into fraudulent abstraction of energy in terms of the report dated 24071998?
9. It is stated in the WS filed on behalf of the defendant that the premises of the plaintiff was inspected by the joint team on 24071998 and the reports were prepared and as per MTD report, half seals were found tempered and both the rivets were also found tempered and hence, case of FAE was booked against the plaintiff. Therefore, I am of the view that the defendant has to prove that the plaintiff was indulging into fraudulent abstraction of the electricity and the onus of proving this issue is on the defendant.
10. As per report Ex. DW4/1, half seals of the meter were found tempered and two rivets were also found tempered and working of the meter was Suit No. 268/14 5/14 Satbir Singh vs NDPL found in order.
11. DW1S. S. Antil and DW2K.P.S. Yadav were examined in the court and they were crossexamined on behalf of the plaintiff. They were members of the joint inspection team. Affidavit of DW3B.L. Sharma and DW4R. S. Yadav were tendered in evidence and they were crossexamined on behalf of the plaintiff. They were also members of the joint inspection team.
12. During crossexamination, DW1S. S. Antil has stated that "the meter was checked in my presence and meter was checked by Sh. Rajender Yadav and it was informed by the MTD Department on the spot that the seals of the meter was found tempered and I can not tell about the tempering of the exact seals". He has also stated during his crossexamination that "no artificial means was implied to abstract the electricity". It shows that DW1 S.S. Antil has not personally checked the meter and it was only informed by the officials of MTD Department that the seals were tempered. Therefore, testimony of this witness does not prove that the seals of the meter were tempered.
13. DW2K.P.S. Yadav has stated during his crossexamination that "I was informed by one of the team member that the plaintiff was involved in the theft". He has further stated that "the meter was inspected by the MTD in my presence and it was opened by Sh. R. S. Yadav, one of the members of Suit No. 268/14 6/14 Satbir Singh vs NDPL the MTD". He has also stated that "I do not found any wire or any other artificial means for abstracting the electricity fraudulently". He has also stated that "I was informed that the half seals of the meter was tempered and the remaining seals are intact". It shows that he has himself not checked the meter that whether the seals of the meter were tempered or not.
14. During crossexamination, DW3B.L. Sharma has stated that "I was inspecting the load and at that time the MTD officials were checking the meter and I was not physically present on the spot and later on I was informed by the MTD official that half seals of the meter polyphase and both rivets were tempered". He has also stated that "the seals were found re punched". In MTD report Ex. DW4/1, it has nowhere been mentioned that the half seals were found repunched. No other witness of the joint inspection team has stated that the half seals were repunched.
15. DW4R.S. Yadav was member of the joint inspection team. He has stated in his affidavit that during checking of meter bearing no. 4D90280(W) installed against IP connection, it was found that all the half seals of this meter found tempered and two rivets were also found tempered and the working of the meter was found in order. During crossexamination, he has stated that "I checked the meter personally in the presence of joint inspection team and Suit No. 268/14 7/14 Satbir Singh vs NDPL found that half seals and two rivets of IP meter were tempered". The reason or tempering of half seals was stated by this witness during crossexamination that half seals were not tally with the sample monogram. In my view it can not be the reason of tempering of the seals, if it was the reason, the seals must have not been original one i.e. seals which were fixed by the defendant at the time of sealing the meter. It has not been mentioned in the MTD report Ex. DW4/1 that what was exact tempering in the half seals and in what way half seals were tempered. Therefore, the reason given by this witness during his crossexamination that half seals were not tally with the sample monogram is false. During crossexamination, DW4 has stated that "I can not tell exactly the difference between authenticated sample monogram and the existed seals of the meter". He has also stated that "I have not shown the difference between two seals i.e. sample monogram and the existing seals in the MTD report prepared by me". He has further stated that "I do not remember who prepared the inspection report but the same was prepared in my presence at the site". In my view, if half seals of the meter were tellayed / compared with the sample monogram and if any difference would have been noticed this fact have been mentioned in the MTD report Ex. DW4/1. Therefore, I am of the view that half seals were not tellyed with any sample monogram and that is why this witness was unable to depose during his crossexamination as to what was the difference between the tempered seals and sample monogram. During crossexamination, DW4 has stated that he has Suit No. 268/14 8/14 Satbir Singh vs NDPL personally checked the meter and there was no artificial means used by the consumer for abstracting the electricity.
16. From the evidence of DW1 to DW4, it has been proved that the premises of the plaintiff was inspected on 24071998. I am of the view that the defendant has failed to prove that the half seals and two rivets were found tempered. Even tempering is not proved.
17. It has come in evidence that the meter disc was moving in right directions during inspection and it was working in order showing that neither it was running slow or high. It has also come in evidence that no artificial means was found during inspection by which electricity was being abstracting during inspection. Even if it is accepted for the sake of arguments that the half seals and two rivets were found tempered during inspection. It is an admitted fact that the consumption pattern was not considered. Therefore, I am of the view that mere only evidence of tempering of seals does not prove that the electricity was fraudulently being abstracting.
18. In view of my above discussions and reasons therein, it is held that the defendant has failed to prove that the plaintiff was indulging into fraudulent abstraction of the electricity in terms of the report dated 24071998. This issue is Suit No. 268/14 9/14 Satbir Singh vs NDPL decided accordingly.
Findings on issue no. 2 : Whether the plaintiff is liable to pay the bill raised on account of fraudulent abstraction of energy on the basis of report dated 24071998?
19. In view of my findings on issue no. 1, it is held that the plaintiff is not liable to pay bill raised on account of fraudulent on the basis of report dated 2407 1998. This issue is decided accordingly.
Findings on issue no. 3 : Whether the plaintiff is entitled to the relief as prayed for?
20. The plaintiff has prayed for a decree of declaration and mandatory injunction against the defendant thereby declaring the inspection report and any other report dated 24071998 and bill in dispute as null and void and be quashed. The plaintiff has further prayed that the defendant, its officers may kindly be direct to restore the supply through K No. 515170659I.P. & 5151770667I.L. installed at Village Kirari, Delhi without insisting upon the payment of the bill amounting to Rs.1,42,062.97p. It has further prayed that the defendant may kindly be directed not to disconnect the supply after restoration of the supply on the basis of the abovesaid bill.
21. It is submitted by the ld. counsel for the plaintiff that the plaintiff is entitled the relief as prayed in the plaint as he was not doing any fraudulent Suit No. 268/14 10/14 Satbir Singh vs NDPL abstraction of electricity/ energy. On the other hand, ld. counsel for the defendant submits that after joint inspection and receiving of MTD report dated 24071998 in respect of the premises of the plaintiff, show cause notice dated 30071998 was issued and plaintiff was asked to attend the personal hearing on 0508998 in the office of the XEN (Enf.I) Shanker Road, New Delhi and he had attended the personal hearing and submitted an undertaking on the stamp paper that he is ready to pay the theft bill and otherwise he was ready to face the consequences and as per the undertaking the case of the plaintiff was processed by the XEN (EnfI) and obtained the approval of the competent authority for raising the assessment bill on account of the FAE and a bill of Rs.1,42,062.97 (4x3) with due date 21011999 and Rs.2,13,094.45 (6x3) on the basis was raised by the Director (EDP) for payment. It is further submitted that the plaintiff has concealed the fact of giving undertaking to the defendant in his plaint. It is further submitted that the plaintiff has only admitted in replication having given undertaking. It is further submitted that since the plaintiff has not come to the court with clean hands and has concealed this fact, the relief claimed by him, being discretionary relief can not be granted and as such the plaintiff is not entitled for the relief claimed.
22. Ld. counsel for the defendant has relied upon case law namely S.P. Chengalvaraya naidu (dead) by LRs. vs. Jgananth (dead) by LRs. & others, (1994) 1 Supreme Court Cases 1 in support of his arguments. Suit No. 268/14 11/14
Satbir Singh vs NDPL
23. I considered the submissions of ld. counsel for the plaintiff and ld. counsel for the defendant as submitted above and case law cited by the ld. Counsel for the defendant.
24. In the case S.P. Chengalvaraya naidu (dead) by LRs. vs. Jgannath (dead) by LRs. & others (supra), the facts are that a partition suit was filed without disclosing deed of release executed by the plaintiff relinquishing his rights in the property and preliminary decree was obtained and at the time of hearing of the application for final decree filed by the plaintiff, the defendants coming to know about want of locusstandi of the plaintiff and as such challenging the application on ground of fraud. It was held that the decree obtained by non disclosure of the release of deed amounted to fraud on court and hence, decree liable to be setaside.
25. In the case in hand, an undertaking Ex. PW5/3 was given by the plaintiff to the defendant which he could not mentioned in the plaint, however, this fact was admitted by him at the time of filing of replication. Therefore, I am of the view that facts of the case cited by the ld. counsel for the defendant and of the present case are entirely different. In the said case, fraud was played by the plaintiff and preliminary decree was obtained. In the present case, the plaintiff Suit No. 268/14 12/14 Satbir Singh vs NDPL could not mentioned in the plaint the fact that an undertaking was given by him to the defendant which is not a material fact. Moreover, he has admitted in the replication that an undertaking was given by him to the defendant. Therefore, on the basis of being not mentioning this fact in the plaint, it can not be said that he is not entitled for the relief claimed on the ground that he has concealed the fact of having given undertaking to the defendant in his plaint.
26. In view of the my findings on issue nos. 1 and 2, it is held that the plaintiff is entitled for the relief of declaration, as prayed and it is declared that the bill in dispute is null, void, illegal and is accordingly quashed. Since the electricity supply was restored during trial, there is no need of granting any relief regarding restoration of the supply of K No. 515170659I.P. & 5151770667I.L. installed at Village Kirari, Delhi. It is further held that the defendant is restrained from disconnecting the supply on the basis of the bill in dispute. It is further also held that the plaintiff is entitled to be refunded 50% of the bill amount in question which he had deposited. This issue is decided accordingly.
Relief
27. In view of my findings on all the issues as above, the suit of the plaintiff is decreed and it is declared that the bill in dispute is null, void and illegal and is accordingly quashed and defendant is restrained from disconnecting the supply on the basis of the bill in question. The plaintiff is entitled to be refunded Suit No. 268/14 13/14 Satbir Singh vs NDPL 50% of the bill amount in question which he had deposited. Cost of the suit is also awarded. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced in the open court (CHANDRA BOSE)
on the 20th day of February, 2015 Civil JudgeSenior Division
Central District, Delhi
Suit No. 268/14 14/14
Satbir Singh vs NDPL