Delhi District Court
Aas Mohamad vs Bses Rajdhani Power Ltd on 21 September, 2012
-1-
IN THE COURT OF MS. REENA SINGH NAG, ADDITIONAL DISTRICT
JUDGE-05/CENTRAL, TIS HAZARI COURTS, DELHI
Suit NO. 269/11
Unique ID No. 02401C6047852004
Assigned on : 21/12/04
Arguments concluded on : 21/09/12
Decided on : 21/09/12
Aas Mohamad . . . . . Plaintiff
S/o Sh. Khacheru Khan
R/o T-220H, Savitri Nagar
New Delhi - 17
VERSUS
BSES Rajdhani Power Ltd . . . . . Defendant
BSES Bhawan, Nerhu Place
New Delhi
Through
Corporate & Legal Enforcement Cell
Andrews Ganj, near to Andrews Ganj Market
New Delhi - 110 049
JUDGMENT
The present suit has been filed by the plaintiff seeking a decree of declaration for declaring the bill raised by defendant bearing No. NPENF170920040002 on the basis of inspection of meters dated 26/04/04 thereby raising the demand of Rs. 5,70,890/- for electricity consumption as illegal, baseless and arbitrarily calculated and a decree of permanent injunction for restraining the defendant for not raising any bill in the manner and on the basis of estimated calculation dated 26/04/04 in future. It is claimed that the plaintiff is the user of three commercial Suit No. 269/11 Page 1 of 15 -2- electricity connections in the premises bearing No. T-220H, Savitri Nagar, New Delhi having K No. 2520G1050302 (K-1) since 1977, K. No. 2520G1050519 (K-2) since 1984 and K. No. 2520G1051183 (K-3) since 2000 and he has been regularly paying the electricity bills periodically in respect of his meters for consumption of electricity therefrom; that K number at Sl. No. 1 is single phase whereas K number at Sl. No. 2 and 3 bear the sanctioned load of 7 and 6 KWs respectively and are of three phase consumptions. As per the plaintiff, electricity consumption depend upon the workload of the plaintiff which is subject to availability of orders/jobs. It has been alleged that on 26/04/04 officials of defendant inspected the meters installed in the premises of the plaintiff and prepared the estimation on the basis of machineries installed in the premises and calculated the estimated consumption of loads as 32.291 in 25 days with an estimated working hours 10 and multiplied the same by 60 factors incorrectly ignoring the ground realities that all the machineries are not continuously used at once and all these machineries are alternatively used by process. As such the impugned bill on the basis of said inspection is illegal. It is the case of the plaintiff that he had been paying the electricity bills since 1977 till bill month of December 2004 as well as after the raid conducted on 26/04/04 with the same set up and loads and the allegations of 100% theft of electricity is wrong for the reasons that plaintiff is the user of three electricity connections and there has been no allegation requiring plaintiff to change the meter in case the meter was found tampered as alleged. It has also been claimed that plaintiff has not been served with any notice dated 10/08/04 by the defendant but he received a bill in question in sum of Rs. 7,61,187/- on 25/09/04 and he was not given any personal hearing on the day scheduled on 01/09/04 as the same was Suit No. 269/11 Page 2 of 15 -3- declared a national holiday; that after putting his grievance to the officers of defendant and after discussion with them the amount of bill was reduced from Rs. 7,61,187/- to 5,70,890/- payable by him in five instalments with the rider that initial payment of Rs. 2.5 lac was to be made on 21/10/04 so as to avoid the disconnection of electricity and further four instalments were endorsed on the bill in question with respective date of payments payable by plaintiff with each instalment containing not less than Rs. 80,000/- to avoid disconnection; that plaintiff was to make the payment of next instalments on 21/12/04, 21/01/05 and 21/02/04 and was asked to clear the next instalment due on 21/12/04 and the suit has been filed on 21/12/04.
2. In its written statement (in short referred to as 'W/S') preliminary objections have been taken by defendant such as plaintiff has not approached the court with clean hands as he is guilty of suppression of material facts and truth. It has been stated therein that the premises of the plaintiff was inspected on 26/04/04 with three connections as detailed hereinafter:-
1. 2520 G1051183 0017172 6 KW (PN) For three
2. 2520 G1050519 0973809 7 KW (IX) connections 32.99 KW
3. 2520 G1050302 0393146D 1KW (PN) (IX)
3. It has been inter-alia averred by the defendant that all the three aforesaid connections were found being used by the plaintiff and a load of 32.99 KW (IX) was found connected against sanction load of 14 KW against the said three connections; that all the three connections referred above were being used in the unified premises by inter-mixing the Suit No. 269/11 Page 3 of 15 -4- connected load of all the three connections and following irregularities were noted in meter :-
(i) Scratches were found on the LHS & RHS of the rivets.
(ii) Packing rubber was found disturbed on right hand side of the meter.
(iii) The base cover of the meter was also found disturbed.
(iv) Connected load was found electrically intermixed.
(v) All the three connections were being used by the Aas Mohamad, the plaintiff in physically unified premises.
4. It has also been averred that load report in the form of Assessment of Connected Load and Meter Report was prepared at the site on that day and IR number 29019 and 29020 of even date duly signed by the joint inspecting team were pasted on the meter having K Nos. 2520G1050519 and 2520G1050302 and on the board to maintain status quo and the representatives of the plaintiff despite being present and asked, refused to sign and receive the copies of the inspection reports. The inspecting team also took the necessary photographs utilising the services of the Parkash Studio and in view of the irregularities detected in such inspection, a show cause notice dated 10/08/04 for suspected Dishonest Abstraction of Energy was served thereby giving an opportunity for personal hearing on 19/08/04 at 11:00 a.m which was not availed by the plaintiff and in pursuance of another show cause notice dated 02/09/04 for personal hearing on 10/09/04 plaintiff attended such personal hearing on that date and pleaded his case in detailed denying the theft of electricity as alleged. After having regard to the analysis of the case and consumption pattern of the three connections showing the average recorded consumption as 10.5% of the computed consumption and the Suit No. 269/11 Page 4 of 15 -5- personal hearing given to the plaintiff, the personal hearing officer opined conclusively the case to be one of DAE. A DAE bill with due date 25/09/04 in sum of Rs. 7,61,187/- was lawfully raised. The suit was also sought to be dismissed on the ground that plaintiff has been making payment towards the DAE bill without any protest and had also been availing all the facilities from the defendant. As such he was stopped from challenging the same. On merits the averments as made in the plaint were denied while reiterating its preliminary objections. It has also been averred that the payment of regular bills has no bearing in the DAE case and as per the Tariff provisions and DERC Regulations the plaintiff supply is liable to be disconnected only if DAE bills and all regular bills are not cleared. As to the reduction of the bill amount, it has been replied in the W/S that after serving of the DAE bill on the plaintiff, the latter requested the defendant to allow him to clear the said payment by way of instalments and also sought rebate with pre-condition that the said bill will be cleared in time failing which for any reason whatsoever the total DAE bill amount of Rs. 7,61,187/- will become immediately due and payable without any consideration of rebate discussed upon.
5. In its replication, the version as mentioned in plaint was reiterated and those made in the W/S which were contrary to the plaint were denied.
6. From the pleadings on record following issues were framed on 01/05/06 :-
i. Whether the plaintiff has not come to the court with clean hands in view of the preliminary objection No. 1 of the written statement? OPD ii. Whether the plaintiff can be stopped from challenging the DAE bill in Suit No. 269/11 Page 5 of 15 -6- view of preliminary objection No. 3 of the WS? OPD iii. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP iv. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP v. Relief
7. In support of his case plaintiff has examined himself as PW1 and tendered his affidavit in evidence as Ex PW1/A identifying his signatures at point A and B. He relied on various documents mentioned in the affidavit as Ex. PW1/1 to Ex. PW1/5 but the same being photocopies were marked as mark 'L' to 'P' and other documents as mentioned in the affidavit as Ex. PW1/6 to Ex. PW1/36 were referred to as mark 'L' to 'P'. The Ex. PW1/1 to PW1/5 are the various receipts pertaining to period from November 1977 to October 1985 whereas the bills paid by the plaintiff have been mentioned in affidavit as Ex. PW1/6 to PW1/35 and the loads in respect of three connections mentioned in the plaint have been shown at point A, B and C on the bill Ex. PW1/1 to PW1/35 regarding which it has been inter alia affirmed by PW1 that K1, K2 and K3 meter connections cannot be inter-mixed with each other as K1 is connection of single phase whereas K2 is of three phase and inter-mixing would result in blast. It has also been affirmed that in the inspection conducted on 26/04/04 the team has also included the scrapped welding machines which was not in use but was kept at the side due to non-availability of store and the other welding machines was meant for the site work only and was not in use. He has been cross-examined at length.
8. PW2 is Sh. Mohd. Iqbal son of the plaintiff/PW1 who tendered his affidavit in evidence as Ex. PW2/A whereas PW3 is Mohd. Shahid, who has claimed himself to be an employee of PW1 at the Suit No. 269/11 Page 6 of 15 -7- relevant time of inspection who happened to be present there, who was examined on 10/01/07 and referred his affidavit as Ex. PW3/A. Plaintiff's evidence (in short referred to as P/E) was closed in affirmative on 10/01/07 by counsel for plaintiff.
9. In support of his defence, defendant examined Sh. Sudip Bhattacharya, who tendered his affidavit as Ex. DW1/A and relied on documents as mentioned therein as Ex. DW1/1 to DW1/7.
10. I have heard the arguments and gone through the case file including written briefs filed by the parties and my issue-wise findings are as under :-
ISSUE NO. 1Whether the plaintiff has not come to the court with clean hands in view of the preliminary objection No. 1 of the written statement? OPD Onus to prove this was on defendant. However, in what manner and for what reasons, it has been alleged that the plaintiff has not come to the court with clean hands, have not been specified by the defendant. As such this issue is decided in favour of the plaintiff and against the defendant.ISSUE NO. 2
Whether the plaintiff can be stopped from challenging the DAE bill in view of preliminary objection No. 3 of the WS? OPD Suit No. 269/11 Page 7 of 15 -8- In para-3 of the preliminary objections of the W/S, it has been averred by the defendant that the plaintiff has been making the payment towards the DAE without any protest and was availing all facilities from the defendant. As such he is estopped from challenging the same on account of law of estoppel. The onus to prove this issue was on defendant. Admittedly, as per plaintiff, he had deposited the initial payment on 2.5 lac on 21/10/04 and Rs. 80,000/- on 21/11/04 but plaintiff has mentioned in his plaint that such payments were made to avoid the disconnection of electricity. In the demand notice raised, there was a threat of lodging of FIR, if payment is not made by due date and there was also threat of disconnection of electricity as mentioned in Ex. PW1/36 (impugned bill). In these circumstances, driven by such threatening plaintiff had to deposit the amount and thereafter move the court. Initially the bill amount raised was Rs. 7,61,187/- but as per plaintiff on his approach to defendant, this amount was reduced to 5,70,890/-. What were the grounds on which such reduction was made has not been specified categorically by the defendant except by referring that rebate was given. Plaintiff was also allowed to deposit this reduced amount in five instalments. In view of such reduction of the amount from the initial demanded amount and in view of the averments made in the plaint with regard to wrong appreciation of connected load by the inspecting team at the back of the plaintiff which inspection was carried out in presence of only the employee of the plaintiff, it cannot be said that plaintiff is estopped from challenging the bill on the ground of estoppel. As such issue No. 2 is also decided in favour of the plaintiff and against the defendant.Suit No. 269/11 Page 8 of 15 -9- ISSUE NO. 3
Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP Plaintiff has prayed for a decree of declaration in his favour for declaring the impugned bill raised by defendant on the basis of inspection of meter dated 26/04/04 and arbitrarily estimated and calculated the consumption of electricity as 29064 units for Rs. 5,70,890/- as illegal, baseless and arbitrarily calculated and the same is void ab initio. In support of this this case, plaintiff has examined himself as PW1, his son PW2 and the employee who happened to be present at the time of inspection as PW3. As per the defendant three meters were found with three different K numbers at the suit premises with sanctioned load of 6 KW, 7 KW and 1 KW and for three connections the connected load was found as 32.99 KW instead of 14 KW which was sanctioned load for all the three connections. The above mentioned sanction was referred as Ex. DW1/1 by DW1. It has also been mentioned vide Ex. DW1/2 that in the meter equipment tampering was found as under : -
(i) Scratches were found on the LHS & RHS of the rivates.
(ii) Packing rubber was found disturbed on right hand side of the meter.
(iii) The base cover of the meter was also found disturbed.
(iv) Connected load was found electrically intermixed.
(v) All the three connections were being used by the Aas Mohamad, the plaintiff in physically unified premises.
From the evidence on record, it is evinced that one meter was installed in 1977 whereas other was installed in 1984 and third one in Suit No. 269/11 Page 9 of 15 -10- 2000. It is not disputed by defendant that meter installed in 1984 (K2) was covered by box by the defendant as earlier it was installed without any box and in para-11 of his affidavit Ex. PW1/A, it has been specifically affirmed by PW1 that the official removed the K2 and K3 meters also for re- instalment in the same box and during the process of such removal such scratches appeared on the rivates but seals were untampered. It has also been averred by deponent PW1 that there was no seal on the box installed for covering the meter at the time of re-installation. There is no rebuttal to this piece of evidence. As such the irregularities found during inspection as to the existence of scratches have been justified by the plaintiff. Due to the age of the meter also such irregularities may creep in. More so, DW1 is not a member of the inspecting team and no photographs have been adduced on record by defendant to substantiate its claim in this regard. It has also been claimed by plaintiff that the consumption of electricity heavily depends upon the availability of workload and it is unlikely that welding machines would be used continuously for 10 hours a day, which was erroneously presumed on date of inspection as most of the time of the day is consumed in cutting and fabricating which is manual work and for few hours only, welding machine can be used depending upon the workload otherwise it is used on alternate day. PWs have also admitted with regard to availability of three welding machines at the site but it has been claimed that only one welding machine was being used and one was scrapped and other welding machine was used for out of site local work. There being no photographs of the inspecting proceedings on record, the plea of the plaintiff assumes significance more so in the context of notice given to the plaintiff by the defendant wherein vide Ex. DW1/4A in the subject it is mentioned Suit No. 269/11 Page 10 of 15 -11- "Personal Hearing Notice for suspected Dishonest Abstraction of Energy". The use of word 'suspected' gives a presumption that there was only a suspicion and it was not a well established case of dishonest abstraction of energy by the plaintiff. As regards the inter-mixing of meter connections, as alleged by defendant, in his cross-examination, it has been mentioned by DW1 that it is possible that inter-mixing can take place between three phase connections into single phase connection but he voluntarily added that such inter-mixing will be for only one phase. Admittedly, DW1 was not the member of inspecting team and he also claims that as per record photographs were taken during the inspection. Omission on the part of defendant in placing the photographs on the record lends credence to the version of the plaintiff to the effect that there was no inter-mixing of the meter connections. Had the defendant produced the photographs of such inter-mixing of connections and in the background of the photographs the presence of PW3, the employee of the plaintiff, the presumption would have been otherwise in favour of the defendant. Defendant has claimed that PW3 has been introduced by plaintiff only to improve his case and his presence has also not been pleaded in the case. It is not necessary to plead each and every fact constituting the evidence in the plaint. Admittedly, PW1 and PW2 plaintiff and his son were not present at the time of the inspection. PW3 Mohd. Shahid has mentioned about the inspection carried out by the inspecting team of the defendant. He has categorically mentioned about the use of individual welding machine in use at the relevant time and other machine was kept in the premises for outdoor welding jobs, which was being used only at the time of fixing, preparing of the fabricating items at the place of the customer site. So only two machines were functional, one used for premises and one for outdoor Suit No. 269/11 Page 11 of 15 -12- site. He also averred that one of the three machines kept in the premises was not in working condition and had been stored in the premises due to lack of room. He also testified that otherwise single welding machine remains in operation only 10-12 days in a month. It has also been averred that due to the nature of the work it is not likely that welding machine would be used all the time. This witness has also deposed that he was persuaded to sign all the papers by the officials of the respondent but he refused on the pretext that he was just an employee and family members being not present in the premises, he could not sign the papers. Therefore he refused to put his signatures on the papers. The version of the plaintiff through this witness inspires confidence and appears to be in consonance with the hypothesis drawn that a welding machine cannot be put to use for 10 hours together at a stretch and in view of the nature of work being done by the plaintiff, the job of welding commences after ancillary work of cutting and molding of pieces is over. On the basis of preponderance of probability also the version of plaintiff inspires confidence for the following reasons :-
In his cross-examination DW1 admitted that there is no mention of tampering of seals of the meter and he also admitted that inspection report does not mention whether it was plaintiff himself or some other person who had refused to sign. He also admitted that there is no mention in the inspection report about inter-mixing of electric connection of three meters in verbatim and he also admitted that as per record, the plaintiff did not appear for personal hearing on the scheduled date 19/08/04 and that notice was sent for 19/08/04 by post only. Another notice was sent for the next scheduled date 10/09/04 for personal hearing Suit No. 269/11 Page 12 of 15 -13- and plaintiff was personally served on 02/09/04 for 10/09/04. The mode of effecting service upon the plaintiff by taking pain of effecting service upon him personally on second occasion and not by usual mode of sending notice by post goes to show that the suspected Dishonest Abstraction of Energy attributed to the plaintiff was not beyond reasonable doubt even as per the defendant themselves. It is also noted that PW3 has not at all been cross-examined to elicit specific denial with regard to use of only one welding machine at the site even at the time of the inspection. He has been sought to be impeached only by highlighting that he was examined on 10/01/07 and in his examination he stated that he has not been working with plaintiff for last 2-3 years back. Inspection was carried out on 26/04/04. In para-2 of his affidavit, this witness has stated that he left the employment of the plaintiff in the year 2006. The affidavit has been drafted on 10/01/07. The education of this witness is not mentioned in his testimony and he was aged about 35 years on the date of his examination. Such minor discrepancy in his testimony with regard to the duration of his employment will not impeach him. He has candidly admitted the suggestion that photographs were exposed and list of connected load was prepared in his presence during the time of inspection. By making such suggestion, defendant has admitted his presence at the time of inspection. No suggestion in rebuttal has been given to this witness that he was not present at the time of the inspection. Had the photographs been produced and shown to this witness at the time of examination by the defendant, the truth could have been brought out. DW1 has admitted that Ex. DW1/6 to DW1/35 are computed bills of connected three electricity connections at the suit premises. Despite raising of the theft bill, the defendant has not led any evidence to show that it made any efforts to Suit No. 269/11 Page 13 of 15 -14- remove the so called tampered meters installed at the premises of the plaintiff. Plaintiff has been paying all the regular bills prior to the bill under question. In these circumstances, on the basis of preponderance of the probability, plaintiff's version is believable and issue No. 3 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4.
Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP As regards issue No. 4, a blanket permanent injunction cannot be granted in favour of the plaintiff and against the defendant in the given facts and circumstances for the reasons that the meters installed at the premises are quite old and plaintiff had not availed the provision of revaluation and retesting of the meters to show that meters were recording the consumption correctly. In these circumstances, plaintiff is directed to get the meters re-tested and if required to replace them as per law within six months of passing of judgment. With these observations, issue No. 4 is disposed off accordingly.ISSUE NO. 5
RELIEF In view of the decision on issue No. 3, the bill Ex. PW1/36 is declared as void ab initio and defendant would be at liberty to issue a revised bill as per law and the amount received against the impugned bill Ex. PW1/36 would accordingly be adjusted against the revised bill.Suit No. 269/11 Page 14 of 15 -15-
In view of the foregoing discussions, suit of the plaintiff is decreed in terms of above. No order as to costs. Decree be drawn accordingly. File be consigned to Record Room.
Pronounced in the open court today i.e on 21st September 2012 (REENA SINGH NAG) Additional District Judge-05/Central Tis Hazari Courts, Delhi Suit No. 269/11 Page 15 of 15