Delhi District Court
CumJudge vs Tata Power Delhi Distribution Ltd on 15 May, 2019
IN THE COURT OF VIPIN KHARB ADDITIONAL SENIOR CIVIL JUDGE
CUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI
Suit No. 58665/16
Sh. Noor Hassan,
S/o Sh. Sahidudeen,
R/o Shed No. 2/1 DSIDC,
PhaseI, Sultan Puri, Delhi. ......Plaintiff
Versus
Tata Power Delhi Distribution Ltd.,
Through its Officer,
North Delhi Power Ltd. (NDPL),
Through its,
Commercial Manager,
District Mangol Puri, Delhi. ......Defendant
Date of Institution: 03.01.2012
Date on which judgment was reserved: 30.04.2019
Date of pronouncing judgment: 15.05.2019
SUIT FOR DAMAGES OF Rs. 50,000/ AND DECLARATION WITH
PERMANENT AND MANDATORY AND PERMANENT INJUNCTION
WITH THE PRAYER OF QUASHING THE FINAL NOTICE DT. 06.11.2007
AMOUNTING TO Rs. 2,42,963.34/
JUDGMENT
1. Averments made in the plaint in nutshell are that the plaintiff purchased Shed No. 2/1 DSIDC, PhaseI, Sultan Puri, Delhi (hereinafter referred as "the suit property") from Sh. Rajender Kumar on 28.10.05. Since there was no electricity meter in the premises, therefore, plaintiff applied for a new electricity connection of 16 KW on 10.05.06, after inquiry about any previous dues on the suit property from the defendant. The plaintiff was assured by the defendant that there are no dues and a new connection would be provided after completing of formalities. After completing elaborate formalities and physical inspection of the suit property, a new electricity connection bearing K. No. 42205127229 was energized on 24.05.2006 in the suit property by the defendant. Since then the plaintiff was making regular payments of Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 his electricity usage. However, he was shocked to receive a wrong and absurd Final Notice dt. 06.11.07 from the defendant demanding an amount of Rs. 2,42,963.34 for alleged outstanding dues of electricity connection bearing K. No. 42300182228, which was allegedly previously installed in the suit property in the name of the previous owner of the suit property.
2. The defendant also sent letters dt. 01.12.07 and 13.12.07 for disconnection of electricity supply and after that the plaintiff lodged a consumer complaint no. 1787/07 titled as "Sh. Noor Hassan Vs. NDPL" against the defendant before the Hon'ble DCDRF, Shalimar Bagh, Delhi. After that in April/May 2008, the defendant transferred arrears of Rs. 2,45,071/ in the account of plaintiff, without following the due process of law and without intimating the plaintiff, therefore, the defendant is guilty of indulging in Unfair Trade Practice. Under the guise of the wrong and illegal demand, defendant was harassing the plaintiff and has caused mental agony to him, therefore, defendant is liable to pay exemplary cost and damages to the plaintiff. Hence, present suit is filed for declaring the final notice dt. 06.11.07 amounting to Rs. 2,42,963.34 as null and void and for restraining the defendant from disconnecting the electricity supply of the suit property and to award damages of Rs. 50,000/ to the plaintiff.
3. In the written statement, the defendant stated that a new electricity connection is installed after completion of all the commercial formalities. Applicant also gives a declaration that if dues are found on the suit property, he will pay the dues. The connection bearing K.No. 42205127229 was sanctioned in the name of Sh. Noor Hassan and installed in suit property, having sanctioned load of 16.00 KW. The connection bearing K. No. 42300182228 was sanctioned in name Sh. Lal Singh and he was the previous owner of the suit property. A new connection can not be installed if dues are outstanding, but inadvertently in this case, a new connection got installed Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 but this does not debar NDPL from demanding the outstanding dues from consumer at later stage. The plaintiff has admitted that the dues pertains to previous owner of the suit property. No cause of action arose in favour of the plaintiff against the defendant, therefore, the suit of the plaintiff is liable to be dismissed.
4. No replication was filed on behalf of the plaintiff.
5. On completion of pleadings of both the parties, following issues were framed by the court vide order dated 03.02.2015 :
1. Whether the plaintiff is entitled to decree of declaration, as prayed?(OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed? (OPP)
3. Whether plaintiff is entitled to damages, as prayed? (OPP)
4. Whether the plaintiff is entitled to interest over the above said amount of damages? If yes, at what rate and for what period? (OPP)
5. Relief.
6. Thereafter, matter was listed for Plaintiff evidence. Plaintiff only examined himself as PW1 and filed his affidavit in evidence as Ex. PW1/A and relied and exhibited the following documents:
1. Ownership documents as Ex. PW1/A (colly) (OSR);
2. Receipt dt. 28.03.2000 as Ex. PW1/B (OSR);
3. Demand note for new connection as Ex. PW1/C;
4. Protocol of meter installation dt. 23.05.2006 as Ex. PW1/D;
5. Final notice dt. 06.11.2007 as Ex. PW1/E;
6. Copy of reply dt. 11.02.2008 as Ex. PW1/H (objected to being an unsigned documents).
7. Order dt. 27.11.2007 and order dated 11.11.2011 passed by DCDRF as Ex.
Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 PW1/J and Ex. PW1/O respectively.
8. Bill dt. 01.06.2008, Bill dt. 22.02.2008, Payment history and last paid bill dt. 04.10.2011 as Ex. PW1/K to Ex. PW1/N respectively.
9. Copy of NDPL letter dated 01.12.2007, dated 13.12.2007 and copy of postal receipt as Mark A to Mark C respectively.
In his crossexamination, he deposed that at the time when he visited the suit property for purchasing it there was no electricity meter connection installed in the suit property. He do not know as to from whom Sh. Rajender Kumar S/o Sh. Deshraj had purchased the suit property. He admitted that he purchased the suit property from Sh. Rajender Kumar S/o Sh. Deshraj. He cannot comment about the sanction load with respect to the earlier electricity connections since at the time of his visit to suit property and before purchasing the suit property, there was no electricity connection/ meter in the suit property. He applied for the electricity connection in January / February 2006 and the same was installed in the month of May/June 2006. He do not know the name of the person whose dues have been transferred to his account. He also do not know whether the aforesaid dues are in the name of Sh. Lal Singh S/o Sh. Ram Prasad, who was the allottee of the shed/suit property. He denied that the defendant transferred the dues to his account as per the rules and regulations of the defendant. He denied that he was liable to clear the outstanding amount with respect to the electricity connection of the shed / suit property lying disconnected in the name of allottee Sh. Lal Singh. During cross examination of PW1, defendant has brought on record connection service form of plaintiff i.e. Ex. PW1/D1 and election ICard of plaintiff as DW1/D2. He denied that he was deposing falsely.
Thereafter, plaintiff evidence was closed.
7. Defendant examined Sh. Naresh Kumar, Manager, Revenue Recovery Group, Cencare, TPDDL (Keshav Puram) as DW1 who filed his affidavit in evidence as Ex. DW1/A and relied and exhibited the following documents: Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10
1. Photocopy of declaration dt. 10.05.2006 given by the plaintiff which is Ex. DW1/1(OSR).
In his cross examination, he deposed that they did not receive any form/ new connection form/ new connection request from the plaintiff but he made a request to the Call Centre of the defendant. They do not have any record of date and time when the request was made to the call centre. Employees of the defendant went to the house of the plaintiff, where plaintiff filled up the connection service form. Their employees collect property documents and ID proof. During cross examination of DW1, plaintiff brought on record NDPL Appraisal Sheet i.e. Ex. DW1/P1 (OSR) and connection service form of plaintiff i.e. Ex. DW1/P2 and defendant admitted that no dues is mentioned at the point 9(v) of DW1/P1. They had given new connection to the plaintiff after completion of commercial formalities and found no dues on the suit property. The dues of Lal Singh were transferred over to the plaintiff as it belongs to the same premises. The dues of Lal Singh pertains to September 2005. No dues mentioned in the Ex. DW1/P1 was mentioned after verification. The tallying work is done by RRG department at the time of issuance of new connection for the same property. As per records available with the company the connection in the name of Lal Singh was energized on 22.04.1996. They had issued bills for the period of 1995 to 2006 to Lal Singh and he deposited Rs. 40000/ in the year 1995. There is no record of disconnection and restoration of electricity connection in the name of Lal Singh in the suit property. He has no knowledge whether the said connection has been disconnected or not. The monthly bill of Lal Singh was around Rs. 5000/ to 10000/ per month. He do not have copy of the bill of Lal Singh. They have not taken any legal steps against the Lal Singh for recovery of amount/ dues regarding the electricity connection at the suit property. He denied that dues are concocted, miscalculated, without any consumption of electricity and false.
Thereafter, defendant's evidence was closed.
Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10
8. Final arguments heard on behalf of both the parties.
ISSUEWISE FINDING ISSUE NO. 1: Whether the plaintiff is entitled to decree of declaration, as prayed in prayed? (OPP)
9. Ex. PW1/A (colly) shows that plaintiff purchased the suit property on 28.10.2005 from Rajender Kumar, Ex. PW1/C shows that plaintiff applied for electricity connection on 20.05.2006 with defendant and Ex. PW1/D shows that new meter was installed at the suit property on 24.05.2006. Ex. DW1/E1 shows that no dues of electricity of any connection were found by the defendant at the suit property. It is also admitted by DW1 that after completion of all the commercial formalities and verification of dues the connection was installed at the suit property. This shows that on 24.05.2006 when electricity connection having K. No. 42205127229 was installed at the suit property, no dues of electricity on the suit property was found and plaintiff had complied with all the conditions of the defendant and have paid all the fees of the defendant for installation of electricity connection. It was admitted by both the parties that at the time when electricity meter having K. No. 42205127229 was installed in suit property, there was no other meter which was installed in the suit property. Further, plaintiff has not purchased the suit property from Sh. Lal Singh but he has purchased the property from Sh. Rajender Kumar and no meter was ever installed in the name of Rajender Kumar in the suit property, so, plaintiff has no chance of having the knowledge of installation of previous electricity meter in the suit property and consequently of any dues. So, there was no mistake, lacunae or wrong done on the part of the plaintiff while applying for new electricity connection.
On the other hand, defendant has done all the verification at its end and found no dues on the suit property. Later on, defendant found out that there are dues on the suit property and send notice dated 06.11.2007 to the plaintiff. The new Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 connection was energized in May 2006 and notice was send in November 2007 i.e. after one and half years. During that period, plaintiff was regular in paying the bills and there was no default on his part. So, if there was any mistake same was on the part of the defendant.
10. Defendant has stated that a consumer is liable to pay all the past dues in respect of the premises in which consumer has got installed new connection and plaintiff has given a declaration that he will clear all the past dues, if found, in respect of the suit property, therefore, he is liable to pay the dues.
Vide Ex. PW1/E, defendant has demanded dues of Rs. 2,42,963.34/ from plaintiff regarding previous electricity meter having K. No. 42300182228 in the name of Sh. Lal Singh and vide Ex. PW1/K defendant had added the arrears of Rs. 2,42,963.34/ in electricity bill of plaintiff. Defendant has not filed any document on record to show that electricity meter having K. No. 42300182228 in the name of Sh. Lal Singh was ever installed at the suit property and have also not filed any details or calculations regarding how an exorbitant amount of Rs. 2,42,963.34/ was pending on the account of previous occupier of the suit property. Merely by mentioning in the notice, it cannot be proved that an electricity meter was previously installed in the suit property and its dues were pending. Therefore, in the opinion of the Court, the defendant has measurably failed to show or prove that the electricity meter having K. No. 42300182228 was ever installed in the suit property in the name of previous owner Lal Singh and as installation of electricity meter with K. No. 42300182228 in the suit property is doubtful, so there is no question of paying its dues.
11. Defendant has relied upon the judgment passed by Hon'ble High Court of Delhi titled as "Punnet Vasudeva Vs. State and Anr", 161 (2009) DLT 28 (FB), wherein at Para35, it was held that :
Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 Para : 35 "For the foregoing reasons, we hold that in terms of Clause 2.1(iv) of the General Conditions of supply forming part of the Tariff Order dated May 23, 2001 if there are electricity dues against the previous owner or occupant of a premises who transfers the premises to a new owner or occupant, the new owner or occupant applying for a fresh electricity connection can be compelled by the Distribution company to pay the arrears of electricity dues of the previous owner or occupant and the distribution company can refuse to supply electricity to the premises on account of such nonpayment."
As per this judgement, when a person applies for a new electricity connection then at that time the distribution company, i.e. defendant in the present case, can compel the consumer to pay the previous dues regarding the same premises and in case he fails to pay the previous dues then the distribution company can refuse to supply the electricity to the premises. The mandate of the judgment or Clause 2.1(iv) of the General Conditions of supply forming part of the Tariff Order dated May 23, 2001 is applicable at the time of applying for new electricity connection but in the present case the facts are different as the distribution company / defendant has already installed the electricity connection in the suit property and is continuously supplying the electricity for last one and half years and receiving payment for the same. The condition on which a new electricity connection can be installed are different from the conditions on which an already installed electricity meter can be disconnected. The mandate of the judgment or Clause 2.1(iv) of the General Conditions of supply forming part of the Tariff Order dated May 23, 2001 is not applicable in the present case.
12. Defendant has failed to show that electricity meter having K. No. 42300182228 was previously installed in the suit property and consequently failed to show that there were dues. On the other hand, plaintiff has followed all the procedure and completed all the formalities of the defendant and is regular in paying the bills of the Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 electricity consumed by him and he has not committed any wrong because of which any loss or damage has occurred to defendant. Whereas, mistake, if any, was committed at the end of the defendant and noone can be allowed to draw benefit out of his own mistake. Therefore, issue no. 1 is decided in the favour of plaintiff and against the defendant.
ISSUE NO. 2: Whether the plaintiff is entitled to decree of mandatory injunction, as prayed? (OPP)
13. The final notices dated 06.11.2017, 01.12.2007 and 13.12.2017 i.e. Ex. PW1/E, Mark A and Mark B respectively and electricity bill dated 01.06.2008 Ex. PW1/K are issued regarding the outstanding dues of K. No. 42300182228 but as discussed above, defendant has failed to show that electricity meter with K. No. 42300182228 was previously installed in the suit property and has consequently failed to show that there were any dues, therefore, all these notices and electricity bill are issued wrongly and are liable to be declared as null and void. Accordingly, issue no. 2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3: Whether plaintiff is entitled to damages, as prayed? (OPP) & ISSUE NO. 4: Whether the plaintiff is entitled to interest over the above said amount of damages? If yes, at what rate and for what period? (OPP)
14. The onus to prove these both issues were upon the plaintiff. Plaintiff has sought damages of Rs. 50,000/ alongwith pendentalite and future interest but has not brought on record anything to show any loss or damage suffered by him, therefore, in Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10 the opinion of the Court, plaintiff is not entitled to any damages.
Relief (A) Decree of permanent injunction is passed in favour of the plaintiff and against the defendant whereby defendant is restrained from disconnecting the electricity supply of electricity meter with K. No. 42205127229 installed at the suit property only on the basis of nonpayment of arrears of Rs. 2,42,963.34/ in respect of electricity meter with K. No. 42300182228.
(B) Plaintiff is entitled to the relief of declaration whereby documents i.e. final notices dated 06.11.2017, 01.12.2007 and 13.12.2017 i.e. Ex. PW1/E, Mark A and Mark B respectively and electricity bill dated 01.06.2008 Ex. PW1/K are declared as null and void.
Digitally
signed by
VIPIN
Decree sheet be prepared accordingly. VIPIN KHARB
KHARB Date:
File be consigned to record room. 2019.05.25
15:48:04
+0530
Announced in the open Court (Vipin Kharb)
on day of 15th May, 2019. Additional Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, NorthWest District, Rohini, Delhi.
Suit No. 58665/16 Noor Hassan Vs. Tata Power Delhi Distribution Ltd. 10 /10