Delhi District Court
Satyan Kumar vs Bses Yamuna Power Ltd on 27 October, 2018
Satyan Kumar v. BSES Yamuna Power Ltd.
IN THE COURT OF MAYANK MITTAL: CIVIL JUDGE08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO. : 95870/16 (OLD NO. : 831/14)
In the matter of :
Satyan Kumar
S/o Sh. Santosh Kumar,
R/o H. No.4070, Gali Barna,
Pahari Dheeraj, Delhi - 110 006. ...PLAINTIFF
VERSUS
BSES Yamuna Power Ltd.
Through Its Chief Executive Officer
Shakti Kiran Building,
Karkardooma, Delhi - 110 092. ...DEFENDANT
Date of institution : 14.09.2012
Date of judgment : 27.10.2018
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
J U D G M E N T
1.Vide this judgment, I shall dispose of the suit filed by the plaintiff for declaration, mandatory and permanent injunction.
2. The brief facts of the present case as alleged by the plaintiff are that plaintiff alongwith his brother Sh. Dushyant Kumar jointly purchased a shop bearing private no.1 situated on the ground floor of property no.39990, Gali Barna, CS No. : 95870/16 (old No. : 831/14) Pg 1 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
Near Sadar Bazar, through a registered sale deed dated 06.10.2009. At the time of purchasing the said shop there was no electricity connection in the said shop and plaintiff applied for a fresh electric connection vide his application dated 02.07.2010. The plaintiff also paid a sum of Rs.1500/ towards the security deposit. The plaintiff has obtained the NOC from the previous occupants of the suit shop regarding the electricity or other dues which has already been filed before the office of the defendant at the time of getting the electricity meter installed. Thereafter, the officials of defendant company informed that Sh. Gurbachan Singh was allotted electric connection bearing CRN no.1130042555 in property no.3988, Gali Barna, Sadar Bazar, Delhi - 110 006 and that the said connection was disconnected on account of nonpayment of outstanding dues of Rs.72,045/. The officials of the defendant further told to the plaintiff that property bearing no.3988 to 3991 represents one unit, therefore, plaintiff would have to make payment on pro rata basis of the said outstanding amount in order to be eligible to obtain electric connection. The plaintiff pleaded that the outstanding dues of Sh. Gurbachan Singh do not pertain to the shop purchased by him and that this demand be not raised against him. However, the officials of the defendant did not listen to the request of the plaintiff and compelled the plaintiff to pay a CS No. : 95870/16 (old No. : 831/14) Pg 2 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
sum of Rs.1080/ and Rs.4000/ which the defendant alleged became due from the plaintiff on prorate basis for which the plaintiff took the loan. Upon making such payment electric connection was installed in the name of the plaintiff vide CR no.1130168571. The plaintiff has since then continuously make payment of the electric consumption charges to the defendant. One Mr. Mukesh Tyagi, Public Relation Officer of the defendant posted at Aaram Bagh Station alongwith one Sh. Satish Kumar Verma, employee of the defendant company visited the shop of the plaintiff in the second week of March, 2011, and threatened that in case a sum of Rs.5000/ is not paid to them as bribe, they would get the entire outstanding dues of Sh. Gurbachan Singh transferred to his connection. The plaintiff made complaint to this effect to all the relevant offices of the defendant. Instead of doing the needful, the defendant sent a notice dated 16.03.2011 to the plaintiff threatening disconnection of electricity connection in case dues of Sh. Gurbachan Singh of Rs.72,045/ are not paid by the plaintiff. This demand was repeated through another letter dated 21.03.2011 whereby plaintiff was again called upon to pay dues of Sh. Gurbachan Singh. The plaintiff again made representation dated 25.03.2011 but to no avail. The defendant in the bill dated 24.05.2011 has now shown the outstanding of Rs.72002.68/ as CS No. : 95870/16 (old No. : 831/14) Pg 3 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
arrears in the name of the plaintiff. This payment allegedly pertains to the dues of Sh. Gurbachan Singh. The defendant has refused to accept the regular consumption charges of Rs.265.99/ shown in the said bill and have threatened the plaintiff of disconnection of his electricity connection in case the total bill is not paid. The plaintiff sent his representation dated 16.06.2011 but threats have not been withdrawn. The officials of the defendant again visited in the morning of 25.06.2011 for disconnection of electricity which they could not succeed because they could not show any formal order of disconnection. Electricity connection in the name of Sh. Gurbachan Singh was never installed in the shop of the plaintiff. There was no connection of electricity in the shop when it was purchased by the plaintiff. The connection in the name of Sh. Gurbachan Singh is alleged to have been installed in property no.3988 whereas, connection in the name of the plaintiff has been installed in shop no.1 in property no.3990. The defendant due to their threatening attitude have already received Rs.1080/ and Rs.4000/ from the plaintiff alleging it to be share of plaintiff in the dues of Sh. Gurbachan Singh calculated on prorata basis. Having done so now the complete balance outstanding dues cannot be made recoverable from the plaintiff. For these reasons plaintiff is not liable to make payment of dues of Sh. Gurbachan CS No. : 95870/16 (old No. : 831/14) Pg 4 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
Singh. The defendant has unlawfully given threats for disconnection of supply of electricity sanction in the name of the plaintiff for want of payment of dues of Sh. Gurbachan Sing. Thereafter, the officials of the defendant started raising a huge bill by transferring the bill allegedly due against one Mr. Gurcharan Singh with the bill of the plaintiff and in the compelling circumstances the officials of the defendant forced the defendant either to clear the outstanding dues as stated or they are going to remove the electricity meter from the shop and the plaintiff left with no other option had deposited a sum of Rs.40,000/ in the lump sum with the officials of the defendant company on 31.03.2012, but despite this the officials remained in the habit of issue the false bill of huge amount i.e. the bill dated 12.08.2011 for Rs.76,834.76/, bill dated 13.10.2011 for Rs.79,421/, bill dated 12.06.2012 for Rs.47,430/ and bill dated 14.08.2012 for Rs.21,119/. However, it is submitted that now the officials of the defendant regularly visiting at the shop of the plaintiff and demanding an oral outstanding of Rs.80,000/ and on objection by the plaintiff, the officials of the defendant is openly threatening to disconnect the electricity connection and to implicate the plaintiff in theft case of electricity.
CS No. : 95870/16 (old No. : 831/14) Pg 5 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
3. Defendant has contested the suit of the plaintiff and has filed his written statement and has submitted that as per inspection report dated 25.02.2012 it was found that the supply of alive connection in the name of plaintiff i.e. Satyan Kumar was found existing and is restoring the electric supply of the premsies where the meter/connection in the name of Sh. Gurbachan Singh was installed, whose supply was already disconnected due to outstanding dues of Rs.72,045/, so the notice of recovery of outstanding dues was sent to plaintiff Sh. Satyan Kumar on 16.03.2011. Accordingly, on 21.03.2011, a letter was also sent by the defendant to plaintiff against his baseless allegation/complaint for information. Subsequently, the plaintiff made representation dated 25.03.2011 requesting for investigation in the matter. Thereafter, the matter was investigated by conducting a joint inspection dated 28.03.2012 when it has been observed that the supply of alive connection bearing CRN no.1130168571 of Satyan Kumar illegally extended to the portion where disconnected meter of Sh Gurbachan Singh was installed. It is submitted that as per inspection report dated 25.02.2011 and joint inspection report dated 28.03.2011 it was found that above said property is a joint property from 3988 to 3991 and meter of Gurbachan Singh was installed where the current/live meter of plaintiff Sh. Satyan Kumar CS No. : 95870/16 (old No. : 831/14) Pg 6 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
exists. As per joint inspection report dated 28.03.2011, following observations was made:
(a) There are three shops found at ground floor and two more floors.
(b) All the three shops are at main road and the entry of first floor and second floor is from side road through stairs.
(c) Meter No.11189675 installed at shop no.1 (3990/1) R/C Satyan Kumar.
(d) Meter no.11149608 installed at shop no.2 (3990/2) RC Jawala Parsad.
(e) There is no meter and electricity in shop no.3 and there is no sign board etc. which shows that the shop no.3 is actually 3990/3 it is possible a godown and remains lock.
(f) Meter no.23334630 installed in stair case and supplying the electricity to 1st and 2nd floor R/C Ms. Padma Rani.
(g) According to neighbours shop no.1 (3990/1) was earlier used for halwai/tailoring & hair cutting saloon works and there was ammeter of Gurbachan Singh which was used in this shop.
(h) Everybody in this premise has his own meter prior to disconnection of meter of Gurbachan Singh except meter of plaintiff Satyan Kumar which was installed after disconnection of meter of Gurbachan Singh. It is submitted by defendant that in view of the above facts, it is clear that aforesaid property is joint from 3988 to 3991 and meter of Gurbachan Singh was installed in the shop which is purchased by plaintiff Sh. Satyan Kumar. In view of affidavit submitted by plaintiff, the plaintiff had undertaken to clear all accumulated/outstanding dues against the premise and the CS No. : 95870/16 (old No. : 831/14) Pg 7 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
license/defendant is authorized to recover the same from him or transfer the dues to any existing electricity connection sanctioned in his favour. On the principle/settle law that the dues remains against the premise as per judgment of Madhu Garg v. North Delhi Power Ltd. finally a detailed speaking order dated 31.03.2011 was passed by the defendant after considering all the material facts and evidence brought on record and mentioning all the facts found at site during joint inspection on 25.02.2010 and on 28.03.2010 transferred the dues as per regulation 49 (11) of DERC. It is further submitted that thereafter the premises was again revisited by the higher officials of the defendant as per direction of DFO (D) Paharganj on 09.08.2011 and at that time following observations were made:
(i) That it has been confirmed/verified by Sh. Prem Pal meter reader and Sh. Nipender Kumar GE (T) that the disconnected meter of R/C Sh. Gurbachan Singh was/is in position of Sh. Satyan Kumar i.e. 1130P4260811.
(ii) That as per neighbour, the portion of Sh. Satyan Kumar 1130P4260811 the power supply was being used from 1130P4240197 Sh. Gurbachan Singh.
(III) That property no.3988 to 3990 is combined property (LType Property).
It is submitted that after transferring the dues to the connection of the plaintiff, as record, the plaintiff was not making the payment from 01.04.2011 CS No. : 95870/16 (old No. : 831/14) Pg 8 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
to 31.03.2012 and he approached the officials of the defendant for settlement of dues and made the part payment of Rs.40,000/ on 31.03.2012 but not signed any settlement letter. He again stopped to making the payment of his consumption bills and again approached the officials of the defendant and requested to settle the case and thereafter issued two cheques were dishonoured on dated 18.07.2012 and 04.09.2012 for Rs.15,000/ and Rs.30,000/ respectively after this there was no payment received till date and Rs.59,460/ shown balance dues in Satyan Kumar A/c balance detail. It is further submitted that the revisit of the premise of the plaintiff further confirms that the meter of the plaintiff is installed in the same shop where the disconnected meter of Sh. Gurbachan Singh was installed. As such the action of the defendant by claiming the dues of the earlier disconnected connection in the same shop from the present owner is fully legal and justified. In view of above facts and submissions as stated in above, the plaintiff is not entitled for discretionary relief of declaration as well as equitable relief of injunction as the plaintiff has concealed the number of facts and has not approached the Hon'ble Court with clean hands, as such the suit of the plaintiff is liable to be dismissed. It is submitted that the dues of Rs.72,002.68p. have been transferred after following due process as stated CS No. : 95870/16 (old No. : 831/14) Pg 9 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
above in accordance with the provision of regulation 49 (ii) of DERC. Morever, it is submitted that after receiving the notice/bill, admittedly the plaintiff earlier filed a suit for permanent injunction simplicitor claiming the relief that his connection may not be disconnected on account of outstanding dues of Sh. Gurbachan Sing. The said suit bearing no.214/11 titled as Satyan Kumar v. BSES Yamuna Power Ltd. was assigned to the court of Sh. Gulshan Kumar, A.S.J., Delhi which was dismissed in default on 17.01.2012. The plaintiff instead of having restoring the same, has filed the present suit claiming one of the similar relief on the same subject matter and cause of action, as such the present suit/similar relief as claimed in the present suit and that of in earlier is not maintainable. It is submitted that before purchasing the shop, the plaintiff had not applied or obtained any no dues certificate from th BM of the division qua the shop in question which is mandatory in nature as per regulation.
4. No replication has been filed on behalf of plaintiff.
5. From the pleadings of the parties, vide order dated 14.02.2013, following is sues were framed for trial:
1. Whether the plaintiff is entitled to relief of declaration, as prayed for?
OPP CS No. : 95870/16 (old No. : 831/14) Pg 10 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
2. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
3. Whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP
4. Whether the suit of the plaintiff is under valued as plaintiff has asked in substance for recovery of amount under the garb of mandatory injunction? OPD
5. Whether the suit of the plaintiff is not maintainable due to the reasons stated in preliminary objections No.1 and 2 raised in the written statement? OPD
6. Relief.
6. In order to prove his case, plaintiff examined himself as PW1, whose examinationinchief is by way of affidavit Ex.PW1/A. PW1 relied on following documents:
1. MarkA photocopy of sale deed in favour of Ms. Deepika Kawatra dated 28.12.2011 (mentioned as Ex.PW1 in his affidavit is accordingly de exhibited).
CS No. : 95870/16 (old No. : 831/14) Pg 11 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
2. Ex.PW1/2 (OSR) sale deed dated 05.12.2005 of Ms. Deepika Kawatra in favour of Smt. Chander Kala.
3. MarkB photocopy of sale deed in favour of Ms. Deepika Kawatra dated 28.12.2011 (mentioned as Ex.PW1/3 in his affidavit is accordingly de exhibited).
4. MarkC photocopy of possession letter executed by Ms. Deepika Kawatra dated January, 2004 (mentioned as Ex.PW1/4 in his affidavit is accordingly deexhibited).
5. MarkD photocopy of possession letter in favour of Ms. Deepika Kawatra dated January, 2004 (mentioned as Ex.PW1/5 in his affidavit is accordingly deexhibited).
6. MarkE photocopy of affidavit of Sh. Manish Kumar dated January, 2004 (mentioned as Ex.PW1/6 in his affidavit is accordingly deexhibited).
7. MarkF photocopy of sale deed dated 05.10.2009 by Smt. Chander Kala in favour of plaintiff and his brother (mentioned as Ex.PW1/7 in his affidavit is accordingly deexhibited).
8. MarkG photocopy of application form for new connection alongwith demand notice dated 09.08.2010 (mentioned as Ex.PW1/8 in his affidavit is accordingly deexhibited).
CS No. : 95870/16 (old No. : 831/14) Pg 12 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
9. MarkH photocopy of amended electricity bill dated 09.08.2010 (mentioned as Ex.PW1/9 in his affidavit is accordingly deexhibited).
10. MarkI photocopy of amended electricity bill dated 07.08.2010 (mentioned as Ex.PW1/10 in his affidavit is accordingly deexhibited).
11. Ex.PW1/11 copy of receipt of Rs.40,000/.
12. Ex.PW1/12 copy of electricity bill dated 20.01.2011.
13. Ex.PW1/13 copy of electricity bill dated 20.01.2011.
14. Ex.PW1/14 copy of electricity bill dated 23.09.2011.
15. Ex.PW1/15 copy of electricity bill dated 23.07.2011.
16. Ex.PW1/16 copy of electricity bill dated 24.11.2011.
17. Ex.PW1/17 copy of electricity bill dated 23.09.2011.
18. Ex.PW1/18 copy of electricity bill of Sh. Jawala Prasad dated 24.05.2010.
19. Ex.PW1/19 copy of complaint to Additional Commissioner, Mediation Center, Vikas Bhawan dated 16.06.2011.
20. Ex.PW1/20 letter of public grievance celld ated 13.08.2012.
21. Ex.PW1/21 representation to the Chief Minister.
22. Ex.PW1/22 copy of electricity bill dated 10.09.2012 for Rs.22,980/.
23. Ex.PW1/23 copy of electricity bill dated 10.09.2012 for Rs.54,980/.
CS No. : 95870/16 (old No. : 831/14) Pg 13 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
7. On the other hand, defendant has also examined DW1 Sh. Ambrish Mishra, whose examinationinchief is by way of affidavit Ex.DW1/A. He relied on the following documents:
1. Ex.DW1/1 (OSR) inspection report dated 25.02.2011.
2. Ex.DW1/2 (OSR) joint inspection report dated 28.03.2011.
3. Ex.DW1/3 (OSR) site plan dated 28.03.2011.
8. Defendant has also examined DW2 Sh. Mandeep Singh Rayet, whose examinationinchief is by way of affidavit Ex.DW2/A. He relied on the following documents:
1. Ex.DW2/1 (OSR) speaking order dated 31.03.2011.
9. DW2 recalled for further crossexamination on 22.03.2017. He had brought the following documents:
1. Ex.DW2/2 (OSR) (Colly.) photocopy of record of K number file in the name of Sh. Ram Singh against CA No.100440246 and Cr No.1130042645.
2. Ex.DW2/3 (OSR) (Colly.) photocopy of record of file having K No.5Z 140962 in the name of Sh. Gurbachan Singh.
CS No. : 95870/16 (old No. : 831/14) Pg 14 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
10. Defendants have also examined DW3 Sh. Ashok Kumar, whose examinationinchief is by way of affidavit Ex.DW3/A. He relied on the following documents:
1. Ex.DW3/1 income tax return of the year 1999.
2. Ex.DW3/2 income tax return of the year 2010.
11. I have heard the arguments and persued the record.
12. My issuewise findings as follow: ISSUE NO.1 Whether the plaintiff is entitled to relief of declaration, as prayed for? OPP
13. The burden of proving this issue was on the plaintiff. In order to discharge his burden, the plaintiff has examined himself as PW1. In his affidavit of examinationinchief, the plaintiff has reiterated and reaffirmed all the contents of his plaint. In his crossexamination, PW1 had admitted it to be correct that his property is situated in the premises No.3988 to 3991 as mentioned in his sale deed. PW1 had further admitted it to be correct that on the ground floor of the premises, there are three shops. PW1 has stated that shop No.1 belongs to him and shop No.2 is in possession of Sh. Jawala Prasad and shop No.3 is godown and there is no meter installed in shop No.3. PW1 has stated that on the first floor of the premises, there is a CS No. : 95870/16 (old No. : 831/14) Pg 15 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
separate meter installed in the staircase. PW1 has stated that he has purchased his shop on 05.10.2009. PW1 has stated that prior to his purchase, in his shop there was barber shop and he was using the electricity supply from the meter in the name of Sh. Ram Singh, address mentioned as 3990/01. PW1 has admitted it to be correct that this fact is not mentioned either in his plaint or in his affidavit of evidence. PW1 has stated that he had personally seen the electricity meter being used in the name of Sh. Ram Singh. PW1 had admitted it to be correct that prior to purchase of shop, he had not procured any dues certificate from defendant in respect of electricity used for the shop. PW1 had not denied the suggestion and had clearly stated that he does not know whether defendants were not aware when he deposited prorata dues of Rs.5080/ that there are dues on the building where the shop is situated in the name of Sh. Gurcharan Singh installed in the same shop. PW1 had not denied the suggestion and had made clearly stated that he does not know whether he had received the notice dated 16.08.2003 from the defendant. PW1 had further admitted it to be correct that as per para 6 of his affidavit in evidence, he had received notice dated 16.03.2011 and reply dated 21.03.2011 Ex.PW1/X1 and Ex.PW1/X2 respectively. PW1 had admitted it to be correct that he had made the CS No. : 95870/16 (old No. : 831/14) Pg 16 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
complaint dated 16.03.2011 Ex.PW1/22 after receiving the notice dated 16.03.2011 itself. PW1 had admitted it to be correct that he had received Ex.PW1/X2 in response to his complaint Ex.PW1/22. PW1 has further admitted it to be correct that he had made another representation to defendant dated 25.03.2011 for reinspection which is Ex.PW1/X3. PW1 had admitted it to be correct that officials of defendant visited the suit shop and asked for certain documents. PW1 had admitted it to be correct that when he purchased the suit shop, there was no electricity meter therein. PW 1 had further admitted it to be correct that he had also filed another suit against the defendant which was pending in the court of Sh. Gulshan Kumar, Ld. Special Court, wherein the same demand raised by the defendant, involved in the present suit was subject matter of that case. The copy of plaint of that suit is Ex.PW1/X4 (Colly.). PW1 had admitted it to be correct that the said suit Ex.PW1/X4 was dismissed in default on 17.01.2012. PW1 had admitted it to be correct that since 01.04.2011 till 31.03.2012, he did not make any payment to the defendant for the electricity used by him. PW1 had admitted it to be correct that he had made part payment of Rs.40,000/ on 31.03.2012. PW1 had admitted it to be correct that he had not made any complaint either to the defendant or to some other authority that defendants CS No. : 95870/16 (old No. : 831/14) Pg 17 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
made him to deposit Rs.40,000/ under threat or coercion. PW1 volunteered that he had filed the present suit. PW1 had admitted it to be correct that he had filed the present suit on 16.09.2012. PW1 had admitted it to be correct that he had given two cheques to the defendant, one for Rs.15000/ dated 18.09.2012 and another for Rs.30,000/ dated 04.09.2012. PW1 had further admitted it to be correct that these two cheques got bounced for insufficient funds in his account. PW1 had stated that no separate notice was received from the defendant for depositing Rs.80,000/, however, the electricity bill for the said amount was received by him. PW1 had denied the suggestion that in the suit shop one electricity meter in the name of Sh. Gurcharan Singh was installed. PW1 volunteered that one meter in the name of Sh. Ram Singh was existing. PW1 had stated that said meter was disconnected by the defendants in the year 2003. PW1 had stated that he can not say that the electricity connection in the name of Sh. Gurcharan Singh was disconnected for non payment of dues in the year 2009. PW1 had admitted it to be correct that when he purchased the suit shop in the year 2009, there was electricity in the two other shops as also on the first floor of the building. PW1 has further admitted it to be correct that he had given affidavit Ex.PW 1/5 to the defendant at the time of sanction of electricity meter in his name CS No. : 95870/16 (old No. : 831/14) Pg 18 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
for the suit shop. PW1 had admitted it to be correct that he had not yet the suit filed before special court of electricity restored.
14. In order to rebut the case as well as evidence brought by the plaintiff, the defendant has examined Sh. Ambrish Mishra as DW1. In his affidavit of examinationinchief, DW1 has reiterated and reaffirmed all the contents of written statement. In his crossexamination, DW1 has stated that he alongwith Mr. Tilak and Mr. Bisht went to the inspection of shop bearing No.3988 to 3990 till afternoon on 25.02.2011. DW1 has stated that he had inspected the shops bearing No.3988 to 3990 two shops i.e. shop bearing No.3990/1 and 3990/2 were opened and one shop i.e. 3990/3 was closed. DW1 has stated that shop No.3990/1 was in the name of Sh. Satyan Kumar and 3990/2 was in the name of Sh. Jawala Prasad. DW1 has stated that he had not recorded the statement of both the persons namely Sh. Satyan Kumar and Sh. Jawala Prasad. DW1 has stated that they had taken the photographs of the meter but the same were not filed on record. DW1 has admitted it to be correct that there is no signature of public person on the inspection report dated 25.02.2011. DW1 has stated that meter of Sh. Gurbachan Singh was installed in the premises bearing No.3990/1. DW1 had admitted it to be correct that the address mentioned on the bill Ex.DW CS No. : 95870/16 (old No. : 831/14) Pg 19 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
1/4 is shop bearing No.3988, Gali Barna, Sadar Bazar. DW1 has stated that the said connection of Sh. Gurbachan Singh was disconnected by BSES on 14.12.2009. DW1 had further admitted it to be correct that address mentioned on the disconnected electricity bill of Sh. Ram Singh is 3990/01, Gali Barna, Sadar Bazar. DW1 had further admitted it to be correct that the plaintiff's meter was installed at premises bearing No.3990/01. DW1 has stated that he can not say anything about the electricity meter of Sh. Ram Singh. DW1 had admitted it to be correct that on inspection report dated 28.03.2011, there is no signature of any public person and the owner of the shops where they had gone for inspection. DW1 had further admitted it to be correct that they had not mentioned regarding taking of photographs of the premises and electricity bill.
15. Sh. Mandeep Singh Rayet was examined as DW2 on behalf of defendant. In his affidavit of examinationinchief, DW2 has reaffirmed and reiterated the contents of written statement. In his crossexamination, DW2 had admitted it to be correct that the electricity meter of Sh. Gurbachan Singh was installed in the shop bearing No.3988G, Gali Barna, Sadar Bazar, Delhi - 110 006. DW2 had further admitted it to be correct that the plaintiff's electricity meter is installed in shop bearing No.3990/01, Ground Floor, Gali Barn, Sadar CS No. : 95870/16 (old No. : 831/14) Pg 20 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
Bazar, Delhi - 110 006. DW2 had further admitted it to be correct that the dues of electricity meter of Sh. Gurbachan Singh is Rs.72,000/. DW2 has stated that they had sent the notice to the plaintiff in respect of the dues of electricity bill of Sh. Gurbachan Singh. DW2 had admitted it to be correct that the address mentioned on the electricity bill which is already exhibited as Ex.DW1/5 is of Sh. Ram Singh. DW2 had admitted it to be correct that they have installed the electrcity meter in the premises bearing No.3990/1, Ground Floor, Gali Barna, Sadar Bazar, Delhi - 110 006. DW2 has stated that the said meter was installed on 30.09.1969. DW2 had further admitted it to be correct that there are no dues pending of abovesaid connection as it is disconnected. DW2 has stated again that he can only confirm this fact after checking his record. DW2 had admitted it to be correct that the meter in the name of Sh. Satyan Kumar is installed at the same premises bearing No.3990/1, Ground Floor, Gali Barna, Sadar Bazar, Delhi - 110 006. DW2 had admitted it to be correct that meter of Sh. Gurbachan Singh was installed on 05.10.1962 in the premises bearing No.3988, Ground Floor, Gali Barna, Sadar Bazar, Delhi - 110 006. DW2 has stated that the portion of property of Sh. Gurbachan Singh and Sh. Ram Singh were different. DW2 has stated that as per the record, the connection of plaintiff was installed in the same CS No. : 95870/16 (old No. : 831/14) Pg 21 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
premises of Sh. Ram Singh. DW2 volunteered that he is not aware whether it was installed at which portion being joint property. DW2 had admitted it to be correct that no notice was given to plaintiff in respect of electricity bill of Sh. Ram Singh. DW2 had admitted it to be correct that connection in the name of Sh. Jawala Prasas was installed on 14.05.1968 and in the premises bearing No.3990/2, Ground Floor, Gali Barna, Sadar Bazar, Delhi - 110 006. DW2 has stated that as per the record, connection in the name of Sh. Jawala Prasad was disconnected on 22.12.2008, thereafter, connection was reconnected on 23.02.2010. DW2 had admitted it to be correct that the dues were not transferred on the connection of Sh. Jawala Prasad. DW2 has stated that connection in the name of Sh. Jawala Prasad was reconnected earlier then new connection in the name of plaintiff was installed on 12.08.2010.
16. On the consideration of evidence, pleading and arguments advanced by counsel for parties, it appears that by way of relief of declaration covered under this issue, the plaintiff has sought the declaration of bill dated 25.07.2012 of Rs.24,780/ and other bills details of which have not been mentioned as null and void, arbitrary and without jurisdiction and against the rules and regulations framed by DERC. The claim on behalf of plaintiff has CS No. : 95870/16 (old No. : 831/14) Pg 22 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
been that since meter of Sh. Gurbachan Singh was installed in premises No.3988, which admittedly had not been purchased by the plaintiff, liability to pay the pending unpaid bill of Sh. Gurbachan Singh with respect to the meter installed in premises No.3988 can not be transferred to the bill of plaintiff as plaintiff has purchased the premises No.3990/1 and not the premises in which the meter of Late Gurbachan Singh was installed and also that in the premises of plaintiff admittedly the meter of Sh. Ram Singh was installed since 1969 and after its being disconnected, the meter of plaintiff was installed.
17. The counsel for defendant has vehemently argued that all the contentions raised on behalf of plaintiff are misfounded as on the instruction of the premises by the officials of the defendant company, it was found that meter installed in the premises of plaintiff is restoring the supply to the premises where the meter of Sh. Gurbachan Singh was installed. Apart from it, the plaintiff has given an undertaking Ex.PW1/X5 at the time of sanction of electricity meter in his name whereby he had undertaken to pay all accumulated/outstanding dues against the premises and also undertaken that licensee is authorized to recover the same from him or transfer the dues to any existing electricity connection sanctioned in his favour. Counsel for CS No. : 95870/16 (old No. : 831/14) Pg 23 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
defendant had further argued that admitting his liability with respect to the outstanding against the meter installed in the name of Sh. Gurbachan Singh, the plaintiff had agreed to settle the matter with defendant and had paid Rs.40,000/ as part payment of discharge of his liability, however, with mischievous intention had not signed any settlement deed. Counsel for defendant has also vehemently argued that for discharge of his rest of the liabilities, plaintiff had given two cheques to the defendant for Rs.15,000/ and Rs.30,000/ dated 18.09.2012 and 04.09.2012 respectively which were dishonoured on presentation. Apart from it, counsel for defendant has argued that present dispute being a billing dispute does not fall within the jurisdiction of this court in pursuance of Section 44 (2) r/w Section 145 of Electricity Act, 2003.
18. From the perusal of the plaint, pleadings, evidence and arguments, it appears that relief governed by this issue pertains to billing dispute as bill of Rs.24,780/ as well as other bills have been challenged as null and void, arbitrary and against the BERC.
19. In this regard, it is pertinent to mention that Hon'ble Supreme Court in case of Maharashtra Electricity, Regulatory Commission v. Reliance Energy Ltd. & Ors. Civil Appeal No.2846 and 3551 of 2006, it has been observed that "as per CS No. : 95870/16 (old No. : 831/14) Pg 24 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
the aforesaid provision, if any grievance is made by a consumer, then they have a remedy under Section 42 (5) of the Act and according to sub Section (5) every distribution license has to appoint a forum for redressal of grievances of the consumers. In exercise of this power the State has already framed. The Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2003 (hereinafter referred to as "2003 Regulations") and created Consumer Grievance Redressal forum and Ombudsman. Under these 2003 Regulations a proper forum for redressal of the grievances of individual consumers has been created by the Commission. Therefore, now by virtue of sub Section (5) of Section 42 of the Act, all the individual grievances of consumers have to be raised before the forum only. In the face of this statutory provision we fail to understand how could the Commission acquire jurisdiction to decide the matter when a forum has been created under the Act for this purpose. The matter should have been left to the said forum. This question has already been considered and decided by a Division Bench of the Delhi High Court in the cases of Suresh Jindal v. BSES Radjhani Power Ltd. & Ors., reported in 132 (2006) DLT 339 (DB) and Dheeraj Singh v. BSES Yamuna Power Ltd. and we approved of these decisions. It has been held in these decisions that the forum and Ombudsman have power to grant interim orders. Thus a complete machinery has been provided in Section 42 CS No. : 95870/16 (old No. : 831/14) Pg 25 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
(5) and 42 (6) for redressal of grievances of individual consumers. Hence, wherever a Forum/Ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. As the aforesaid two decisions correctly lay down the law when an individual consumer has a grievance he can approach the forum created under sub Section (5) OF Section 42 of the Act".
20. The Hon'ble Delhi High Court in case of Ram Kishan v. N.D.P.L. has observed that :
3. In our opinion all disputes regarding electricity bills should first go before the appropriate Forum provided for in Section 42 (5) and thereafter to the Ombudsman under Section 42 (6) of the Electricity Act, 2003 and only thereafter should writ petitions be entertained.
12. The Electricity Act, 2003 has clearly provided a Forum under Section 42 (5) as well as the Ombudsman under Section 42 (6). We are informed that the Forum and Ombudsman under Sections 42 (5) and 42 (6) have both been created on 01.08.2004.
13. Thus the appellant and all persons who have disputes regarding electricity bills have two alternative remedies. Firstly, they may approach the Forum under Section 42 (5), and if they are aggrieved by the decision of the Forum, they may approach the Ombudsman under Section 42 (6).
CS No. : 95870/16 (old No. : 831/14) Pg 26 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
15. Some electricity consumers may have the grievance that an exorbitant bill may be pressed against them with the threat of disconnection of electricity supply. We are of the opinion that both the Forum under Section 42 (5) as well as Ombudsman under Section 42 (6) have inherent powers of passing interlocutory orders pending the decision of the representation before them including interlocutory orders for stay of the bills apart from the specific power under Regulation 9 (8) of the Regulations contained in the notification dated 11.03.2004."
21. The Hon'ble Delhi High Court in case of B.L. Kantroo v. BSES Rajdhani Power Ltd. has observed that "a perusal of Section 145 would show that this Section operates only in respect of Section 126 and 127 of the Electricity Act. Section 126 is contained in Part XII of the Electricity Act and deals with investigation and enforcement. Section 126 provides that if on an inspection of the premises and after inspection of equipments, gadgets, etc. found connected or used in the premises, the Assessing Officer comes to conclusion that the person was indulging in unauthorized use of electricity, the Assessing Officer shall provisionally assess, to his judgment, the electricity charges payable by such person or by any other person benefited by such use. It is also provided that if Assessing Officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use was continuing for a period of 3 months. Section 127 provides that CS No. : 95870/16 (old No. : 831/14) Pg 27 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
a person aggrieved by the final order to the Appellate Authority as may be prescribed. In view of the above, a careful reading of Section 145 would show that the ouster of jurisdiction is in respect of detection of unauthorized use".
22. Having regard to the above findings of Hon'ble Delhi High Court as well as Hon'ble Apex Court, the jurisdiction of this court has been barred impliedly under Section 9 of CPC as an appropriate forum for resolving the billing dispute between the consumer and the licensee company had already been established and has been working under the provisions of Section 45 of Delhi Electricity Act, 2003. In pursuance of lack of subject matter jurisdiction, the relief of declaration can not be given by this court. Issue is decided against the plaintiff.
ISSUES NO.3 Whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP
23. The burden of proving this issue was on the plaintiff. Plaintiff has led the evidence as discussed while discussing issue No.1 for the purposes of discharging the burden of proving this issue, however, the relief in the form of mandatory injunction also pertains to the billing dispute and through mandatory injunction relief of adjustment of Rs.40,000/ (which had been CS No. : 95870/16 (old No. : 831/14) Pg 28 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
deposited with defendant by the plaintiff as part payment of pending bill) has been sought in the future bills of electricity vide CA No.100475108 CRN No.1130168571 and also the relief of directing the defendant to issue proper and correct bill to the plaintiff. In pursuance of findings on issue No.1, the court is of view that due to implied bar created by Section 45 of Electricity Act, 2003, court lacks the jurisdiction to decide this issue.
24. Apart from it, as per the latter part of Section 145 Electricity Act, as explained by Hon'ble High Court of Delhi in B.L.Kantroo Case (supra) civil court does not have jurisdiction to grant the relief of injunction.
25. In pursuance of lack of subject matter jurisdiction as well as in pursuance of later part of Section 145 Electricity Act, the relief of mandatory injunction can not be given by this court. Issue is decided against the plaintiff. ISSUE NO.2 Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
26. Burden of proving this issue was on the plaintiff. It has been the admitted case of plaintiff that plaintiff has earlier filed a suit of permanent injunction Ex.PW1/X4 (Colly.) seeking the same relief which is covered by issue No.2 which has been dismissed for default by order dated 17.01.2012. Plaintiff has CS No. : 95870/16 (old No. : 831/14) Pg 29 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
himself admitted in his crossexamination that he had not got the suit filed before Special Court of Electricity restored. In view of the provisions of Order 9 Rule 9 CPC, the present suit with respect to the relief sought by the plaintiff covered by this issue is not maintainable.
27. Apart from it, as per the latter part of Section 145 Electricity Act, as explained by Hon'ble High Court of Delhi in B.L.Kantroo Case (supra) civil court does not have jurisdiction to grant the relief of injunction. In view of the above said discussion, this issue is decided against the plaintiff. ISSUE NO.4 Whether the suit of the plaintiff is under valued as plaintiff has asked in substance for recovery of amount under the garb of mandatory injunction? OPD
28. Burden of proving this issue was on defendant. Defendant has merely alleged that by seeking the relief of adjustment of Rs.40,000/, the plaintiff has in fact sought the recovery of Rs.40,000/, however, no proper valuation has been done by the plaintiff for seeking the relief of recovery of Rs.40,000/. No evidence has been led by any party for the purposes of proving/disproving this issue.
29. The court is of view that the contentions raised on behalf of defendant is having substance in it and the relief of adjustment of Rs.40,000/ in the future CS No. : 95870/16 (old No. : 831/14) Pg 30 of 31 Satyan Kumar v. BSES Yamuna Power Ltd.
bills of the plaintiff amounts to the recovery of Rs.40,000/, for which valuation has not been done accordingly. Issue is decided in favour of defendant and against the plaintiff.
ISSUE NO.5 Whether the suit of the plaintiff is not maintainable due to the reasons stated in preliminary objections No.1 and 2 raised in the written statement? OPD
30. Burden of proving this issue was on defendant. No specific arguments have been advanced to press this issue. This issue is disposed of as not pressed. RELIEF
31. In view of the discussion on the issue hereinabove, the suit of the plaintiff is dismissed. Defendant is entitled to his cost.
Decree sheet be prepared accordingly.
Digitally signedby MAYANK MITTAL
MAYANK Date:
MITTAL 2018.10.29
File be consigned to Record Room. 16:17:30
+0530
Announced in the open court (MAYANK MITTAL)
on 27.10.2018 Civil Judge - 08 (Central)/Delhi
CS No. : 95870/16 (old No. : 831/14) Pg 31 of 31