Delhi District Court
Tata Power Delhi Distribution Ltd vs Ms Shardanand Bro on 29 October, 2024
IN THE COURT OF MS. RUCHIKA SINGLA,
DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
RCA DJ 1/2015 (5071/16)
TATA POWER DELHI DISTRIBUTION LTD.
Versus
M/S SHARDANAND BROS.
JUDGMENT
29.10.2024
1. This is an appeal which is filed by appellant/defendant against the judgment dated 21.12.2013 passed by the Court of Ms. Riya Guha, the then Ld. Civil Judge-13, Central, Delhi, in case titled as M/s Shraddhanand and Brothers Vs. NDPL in Suit No. 1009/2006. Appellant/defendant is aggrieved by the judgment dated 21.12.2013 vide which the Ld. Trial Court decreed the suit of the plaintiff/ respondent.
2. Notice of the appeal was issued to the respondent/plaintiff, who appeared and advanced arguments. No reply was filed by the respondent.
RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 1 of 113. The appellant/defendant is aggrieved by the impugned judgment passed by the Ld. Trial Court wherein the suit of the plaintiff/ respondent was decreed.
4. For the sake of convenience, the parties are referred as per their status as before the Ld. Trial Court.
5. I have heard the arguments on behalf of both the parties. I have also gone through the record. Briefly stated the facts of the case as alleged by the plaintiff were that the plaintiff firm is a registered partnership firm and the registered consumer of electricity, industrial power connection bearing K no. 323041323341U with a sanctioned load of 91.52 kilowatt at the address of their firm bearing no. C-55/1, Wazirpur Industrial Area Delhi. It was stated that the plaintiff had been paying the bills regularly which were raised by the defendant. It was stated that the total consumption of electricity during the period 28.04.2003 till 30.10.2003 was 15310 units. Further, it was stated that after the payment of the bill of the month of November 2003, there was a credit balance of Rs.42,170/-, which was payable by the defendant to the plaintiff.
6. Further it was stated that, in the second week of November 2003, the meter of the plaintiff's connection stopped and this was informed by the plaintiff to the defendant vide letter dated 13.11.2003. It was stated that the meter was replaced by the RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 2 of 11 defendant's officials on 04.12.2003 and on that date, the reading of the meter was 13457. At the time of the installation of the new meter, the reading of the new meter was 90. Thereafter, bills were being raised by the defendant which were being paid by the plaintiff, however the said bills were provisional. At the time of raising of every new bill, the plaintiff contacted the defendant company but they insisted that the plaintiff should make the payment and they did not raise the bills of actual consumption and in fact in every subsequent bill, the arrears of the previous bill were being included, even though, the plaintiff had paid the previous bill.
7. It was stated that the plaintiff has made a total payment of Rs.3,52,644/- for the period 30.10.2003 till 27.07.2004, which the defendant is liable to adjust against actual consumption. It was stated that the plaintiff had made an excess payment of Rs.1,30,000/- approximately. It was submitted that the defendant was illegally and arbitrarily raising provisional bills for the defective meter for the period of six months while the assessment should have been done on the basis of the actual consumption which was already being recorded in the new meter after the replacement of the defective meter. Hence, it was submitted that the bills which were raised by the defendant on the basis of the defective meter provisionally were not as per law.
8. Hence, the plaintiff filed the impugned suit seeking mandatory injunction that the defendant should adjust the payments RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 3 of 11 made by the plaintiff towards the actual consumption charges. Further, the plaintiff sought the mandatory injunction that the defendant should be directed to raise the bill on the account of the defective meter for the period during which the meter remained defective only. Permanent injunction was also sought seeking direction that the defendant should be restrained from raising electricity bills against the provisions of the tariff and regulations framed by the DERC
9. Upon service of the summons, the defendant appeared and filed its WS. In the WS, the defendant stated that the meter at the plaintiff's premises remained defective with effect from 26.07.2003 till 04.12.2003. It was admitted that a new meter was installed. Further it was stated that during the installation of the new meter, the meter particulars could not be fed and hence the bills were being raised provisionally. It was also stated that an amount of Rs.82,539/- was paid by the plaintiff during the period of December 2003 till March 2004. It was also stated that this payment was received on account of provisional bills and was adjusted in the month of August 2004 at the time of the assessment of the defective period. It was stated that after the replacement of the meter, the assessment for the period between 26.07.2003 till 4.12.2003 was made on the basis of average consumption as recorded in the old meter during the period 28.01.2003 till 26.07.2003.
RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 4 of 1110. Hence, an amount of Rs.1,43,884.97 was charged and Rs.82,539.72 was credited against the said bills provisionally as per the payment made by the plaintiff. It was stated that an amount of Rs.61,345/- was remained unpaid for the month of August 2004, when it was stated that the actual assessment had already been done. Hence, it was stated that the suit of the plaintiff was liable to be dismissed.
11. After the trial of the suit, the Ld. Trial Court decreed the suit of the plaintiff. The said judgment has been challenged by the defendant on the following grounds that:
(a) When the consumer i.e. the plaintiff had informed the defendant on 13.11.2003 about the stoppage of the meter, he cannot be allowed to take the stand of challenge of assessment which was done as per the DERC regulations.
(b) Ld. Trial Court has observed that the plaintiff is entitled for adjustment of the payment but the adjustment is already done by the defendant. It was stated that as per the account statement of the plaintiff, 11860 units were refunded in the tune of Rs.59,151/- in the bill month of October 2003 but this fact was not considered by the Ld. Trial Court.
RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 5 of 11(c) That as the plaintiff had not deposited the disputed amount of Rs.61,345/-, hence, the question of awarding interest @ 7% p.a. does not arise.
(d) That the Ld. Trial court failed to appreciate that the consumption against the said connection had increased abruptly after the replacement of the meter on 04.12.2003 and that prior to the replacement the units were recorded on the lower side.
(e) That the Ld. Trial court erred in directing to assess the defective period with effect from 01.11.2003 till 04.12.2003.
12. It is stated by Ld. Counsel for the defendant that in view of the above grounds, the judgment of the Ld. Trial court is liable to be set aside. It is submitted that the Ld. Trial court judgment is erred on the basis of the above mentioned grounds.
13. Per contra, Ld. Counsel for the respondent/plaintiff has strongly opposed the appeal. It is submitted that as per the defendant's own witness, the period for which the meter remained defective was at maximum from 01.11.2003 till 04.12.2003. However, the bills which were raised by the defendant were for the period 26.07.2003 to 04.12.2003, which could not have been done. Further, as per the relevant guidelines, the period for the meter to be treated as defective can only be maximum six months. The defendant has taken this plea RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 6 of 11 that the consumption of the plaintiff was on the lower side but it can be simply because less units were being consumed by the plaintiff. It is submitted that there was no such ground taken by the defendant at the time of the raising of the bill. Hence, it is submitted that there is no error or infirmity in the judgment passed by the Ld. Trial court and the appeal may be dismissed.
14. Record Perused.
15. In the present matter, the facts of the case are more or less admitted to the effect that the plaintiff's meter stopped working and it applied to the defendant for the replacement of the meter. It is an admitted fact that the new meter was installed on 04.12.2003. The Ld. Trial Court has observed in the judgment that the period for which the meter remained defective is 01.11.2003 till 04.12.2003. In the opinion of the Court, the said observation passed by the Ld. Trial Court is factually correct. This is based on the statement of the witness of the defendant himself. Perusal of the record shows that the defendant examined one Sh. Naresh Kumar, Section Officer, NDPL, Keshav Puram as DW-1. During his cross-examination, he admitted that "It is correct that the meter in question got defective during the period 30.10.2003 to 04.12.2003... It is correct that the meter in question was got defected somewhere in second week of November, 2003. Vol. It might be in first week of November, 2003. It is correct that the defective period of the meter in question was RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 7 of 11 second week of November, 2003 till till 04.12.2003. Vol. It might be in first week of November, 2003. Again said, I cannot say the exact date when the meter got defective. It is correct that the maximum defective period for the meter in question was 01.11.2003 to 04.12.2003."
16. Hence, in the opinion of the Court, as the defendant's own witness has categorically stated that the maximum period for which the meter was defective was 01.11.2003 till 04.12.2003, there is no error or infirmity in the observation of the Ld. Trial Court to this effect. Hence, in the opinion of the Court, the Ld. Trial Court has rightly observed that the assessment for the defective period which was done by the defendant for 26.07.2003 to 04.12.2003 was unlawful. The assessment for the defective period could have been done by the defendant only for the period 01.11.2003 till 04.12.2003.
17. However, the Ld. Counsel for the defendant has argued that the basis of assessment which was given by the Ld. Trial Court was not proper. In this regard, he has relied upon the relevant tariff provision for the relevant period of year 2003-2004 which was also referred to by the Ld. Trial Court in the judgment in para no. 39 i.e. 1.6.2 which is as under :-
"1.6.2Assessment of energy in other cases when the meter is faulty:
As and when the meter is detected to be faulty either by NDPL or by consumer, RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 8 of 11 the calculation for estimation of energy (for the period meter is defective) shall be made based on the pattern of consumption available for the period of past six months when the meter was functional and the pattern of consumption recorded on the six months succeeding the replacement of the defective meter. The final adjustment for the said period shall be made based on the pattern of consumption recorded during this total period of twelve months."
18. Perusal of the said provision shows that it has been provided that for the period for which the meter remained defective, the consumption has to be analyzed on the basis of the consumption for the past six months and on the basis of the consumption for the succeeding six months. Those two spells of 6 months shall be before the meter went defective and after the replacement of the defective meter. However, the Ld. Trial Court has noted in para no. 40 that the base period for defective meter can only be the actual period during which the meter remained defective. In the opinion of the Court, the said observation is not factually correct. The provision as mentioned above seems to have been misinterpreted by the Ld. Trial Court. As mentioned above, the above mentioned provision clearly states that the consumption pattern has to be analyzed on the basis of one year excluding the period for which the meter remained defective, for the past six months when the meter was functional and for the future RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 9 of 11 succeeding six months after the replacement of the defective meter i.e. for the period 01.05.2003 to 31.10.2003 and 04.12.2003 till 04.06.2004.
19. Now during the course of arguments, one ground taken in the appeal was that the consumption pattern of the plaintiff was at the lower side before the meter went defective. However, no such pleading was taken by the defendant during the trial of the suit. Hence, the same cannot be considered at this stage. The same is beyond pleadings.
20. In the opinion of the Court, there is no other error or infirmity in the judgment passed by Ld. Trial Court. As noted above, the period for which the meter remained defective was 01.11.2003 till 04.12.2003. Hence, the judgment passed by Ld. Trial Court is modified only to the extent that the consumption for the defective period has to be calculated on the basis of the consumption for the period 01.05.2003 to 31.10.2003 and 04.12.2003 till 04.06.2004. The directions given by the Ld. Trial Court that the defendant shall raise the bill on account of the defective meter for the actual period i.e. 01.11.2003 till 04.12.2003 shall remain the same. Further, the Court finds no reason to interfere in the direction whereby the defendant was restrained from enforcing the impugned bill of August, 2004 and that the defendant shall raise a revised bill for the impugned period.
RCA DJ 5071/16 TPDDL Vs. M/s Shardanand & Bros. Page 10 of 1121. The Ld. Trial Court has also given a direction that the payment already made by the plaintiff shall be adjusted alongwith interest @ 7% p.a. This direction has also been challenged by the defendant on the ground that payment of the interest is not made out as the bill has already been revised and the payment done is already adjusted. In the interest of justice, this direction is also modified to the extent that the payment already made by the plaintiff in the disputed period shall be adjusted towards the actual bill and in case any excess amount has been received by the defendant, then the same shall be refunded to the plaintiff with interest @ 7% p.a. from the date of the institution of the suit till its realization. Appeal disposed off with these directions.
22. Copy of this order be sent to the Ld. Trial Court for information along with the original TCR. Decree-sheet be prepared accordingly. File be consigned to record room.
Digitally
signed by
RUCHIKA
(RUCHIKA SINGLA) RUCHIKA SINGLA
DJ-03 (N/W) SINGLA Date:
2024.10.29
Rohini Courts :Delhi/29.10.2024 16:01:38
+0530
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