Himachal Pradesh High Court
Himalya International Limited vs Others R To on 13 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Suit No. 92 of 2008.
Reserved on : 28.08.2018.
.
Date of Decision: 13th September, 2018.
Himalya International Limited .....Plaintiff.
Versus
others r to
Himachal Pradesh State Electricity Board Limited and ......Defendants.
Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Plaintiff: Mr. Rahul Mahajan, Advocate.
For the Defendants: Mr. S.S. Mittal, Senior Advocate with Mr. Surender P. Sharma, Advocate, for the defendants.
Sureshwar Thakur, Judge.
The plaintiff company stands incorporated under the Companies Act, 1956, and, has its works at Shubh Khera, Paonta Sahib, Himachal Pradesh 173025.
It is a 100% export oriented, and, food processing unit.
::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 2It grow mushrooms in control climatic conditions, and, process other vegetable and fruits and IQF Individual Quick Feez). The plaintiff company, IQUF mushroom, .
vegetables, fruits etc., and then store them in cold storage at temperature below 0 deg F (-18 deg C).
The plaintiff company has averred that it had applied to the HPSEB for a load of 992.13 KW with the contract demand of 1100 KVA vide AA form 8552 of 18.05.1995, and, the said load/contract demand was sanctioned by HPSEB vide letter No. HC-II/CS-0-1-575-95-006 of 26.8.1995, hence, it has a connected load of 990 KWA and a contract demand of 1100 KVA. The plaint continues to make averments, vis-a-vis, the plaintiff company, being asked vide letter No. PED/DB-5/95-268 of 13.9.1995 by the defendants to deposit cost of Rs.6,29,640/- for independent feeder so that power connection could be granted. The plaintiff company deposited the entire expenses on this account before the release of power connection in 1996. The plaint further continues to make disclosures qua the plaintiff company's plant being totally based on climatic controlled atmosphere for mushroom growing, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 3 refrigeration, and, for processing the mushrooms, vegetables as IQF frozen mushrooms/vegetables, and, thus maintaining the temperature below 0 deg F (-18 .
deg C) and having proper air conditioning/cooling during the summer months and also throughout the year is the most crucial for the production and storage for finished products (mushrooms/vegetables).
Mushrooms are averred to be not growable beyond the temperature of above 18 degree C and IQF frozen mushrooms and vegetables start getting deteriorating below -0 deg, F (-18 deg C) and get totally spoiled if the temperature goes warmer than -10 deg C. (10 deg. F), hence, in view of the sensitivity, climate controlled atmosphere is required for the plaintiff company's plant, and, electricity on the load sanctioned is required continuously and throughout 24 hours and throughout the year without any interruption. The plaintiff company has averred to have made consistent remainders upon the defendants, vis-a-vis, its being beset with power tripping, and, it asked the defendants to resolve the crisis of power tripping and steps be taken so that the plaintiff company does not face any ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 4 power difficulty. However, despite letter of 21.03.2012 being written to defendant No.5 Sub Divisional Officer, HPSEB, Badripur, Paonta Sahib, requesting him to take .
corrective measures so that the plaintiff company does not suffer power tripping, nothing substantial/effective was done and the plaintiff company immediately in the month of May-June, 2002 suffered the brunt of power tripping and loss of power, power cuts, as a result of which the IQUF mushrooms and vegetables were spoiled and mushroom crop also failed due to rise in temperature on account of power tripping, low voltage and power cuts. The monopolistic careless and callous attitude of the respondent(HPSEB) is depicted by the fact that while the plaintiff company requested on 19th April, 2002, for the permission of running of DG set, inspection was done on 14 th June, 2002, after two months and worst of all the permission was granted on 17.09.2002, after three months of the inspection, when the plaintiff company had already sustained huge losses. The plaint also makes disclosures under letter of 20.6.2002, the plaintiff company making communication to the defendants to ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 5 not divert the power from the plaintiff company's independent feeder to may other consumers i.e. industrial and domestic, given the cots of the .
independent feeder being borne by the plaintiff company, and the aforesaid request was repeated under letter of 29.06.2002, wherein, the details of power tripping from 20.06.2002 to 29.06.2002 were also detailed, and, the request was made therein to permit the uninterrupted power supply to the plaintiff's plant. Communication made under the aforesaid letter were repeated under the letters of 7 th July, 2002.
However, it is averred to be of no avail. It is also averred that the plaintiff company had under the aforesaid letter also requested the defendants to take corrective measures in order to improve the power tripping and also to assure that the independent feeder which has been installed at the cost of the plaintiff company be exclusively used for providing electricity to the plaintiff company only and not to other domestic and industrial consumers. All the aforesaid letters are appended with the plaint. However, it is averred that the grievance of the plaintiff ventilated therein ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 6 remaining unredressed by the defendants. The plaintiff avers that it had even asked the defendants especially defendant No.4 vide letter of 8.7.2002, 17.7.2002, .
10.8.2002 to provide it, the copy of log sheets of plaintiff's independent feeder along with copy of MRI (half hourly reading of current received any company's end), however, the aforesaid information has remained unpurveyed to the plaintiff company. It is averred that the defendant vide letter No. 808-09, 31/12/2002, from CE(Commercial), communicated that as on 31 st December, 2002 the independent feeder was supplying power only to plaintiff company and and it is hence averred that it constituted an admission that prior thereto the dedicated feeder of the plaintiff's company plaint was supplying electricity to the other domestic and commercial establishments. In the tables extracted hereinafter, appertaining to the years 2002 and 2003, details of losses, as, suffered by the plaintiff company, losses whereof arising from the tripping of power supply, vis-a-vis the plaintiff finds complete elucidation therein.
Year 2002 ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 7 Sr. No. Items amount Qty (kg) Rate (Kg) A IQF Green Peas 45000 30.00 13,50,000.00
1.
2. IQF GREEN BEANS 12,000 25.00 3,00,000.00 .
3 IQF OKRA 06686 25.00 1,67,150.00
4. IQF CAULIFLOWER 06500 25.00 1,62,520.00
5. IQF CARROT 01100 25.00 27,500.00
6. IQF PALAK 02150 25.00 53,750.00
7. IQF APRICOTS PULP 10600 25.00 2,65,000.00
8. IQF MANGO SLICE 01414 30.00 42,420.00
9. IQF MANGO PULP 02034 30.00 61,020.00
10. POTATO 3000 25.00 75,000.00
11. IQF WHOLE 16218 60.00 9,73,080.00 MUSHROOMS
12. IQF MUSHROOMS 45250 60.00 27, 15,000.00 SLICE
13. CANNED 06000 75.00 4,50,000.00 MUSHROOMS TOTAL(A) 66,42,420 "B"
1. FRESH 200000 40.00 80,00,000.00 MUSHROOMS DESTROYEDIN GROWING ROOMS Total (A) & Rs.
(B) 146,42,420.00
Year 2003;-
Sr. NO. Items amount Qty (kg) Rate (kg)
1. IQF PEAS 145400 30.00 4362000
2. IQF BEANS 8091 25.00 202275
3. IQF DRUMSTICK 1059 25.00 26475
4. IQF BABY ONION 9724 25.00 243100
5. IQF BOTTLE GUARD 617 25.00 15425
6. IQF TINDA 2366 25.00 59150
7. IQF PARWAL 738 25.00 18450
::: Downloaded on - 17/09/2018 22:58:30 :::HCHP
8
8. IQF CAULIFLOWER 10930 21.00 229530
9. IQF APRICOT PULP 781 25.00 19525
10. IQF PEACH PULP 210 28.00 5880
11. IQF CHHIKI PULP 950 30.00 28500
Total Rs.5210310/-
.
The plaintiff company has averred to have made complaint to the Chairman, Board Level Dispute Settlement Committee, HPSEB Vidyut Bhavan, Shimla on 13th September, 2004, detailing therein the losses entailed upon, it, owing to power tripping, failure, cut and diversion of power from independent feeder of plaintiff company. However, no decision was meted thereon, upto, 26.10.2006, hence, whereat, a communication was made to it by the Chairman qua the inability of the Board Level Dispute Settlement Committee to decide the complaint on account of territorial and pecuniary jurisdiction , arising from the Electricity Act, 2003, HPSERC (Conduct of Business) Regulation 2006 and amendments made thereto and also in view of the HPERC Distribution Licensee Standard of Performance Regulation, 2005.
Consequently, the plaintiff company approached the Himachal Pradesh Electricity Regulatory Commissioner ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 9 and the aforesaid Commissioner proceeded to refer the matter for Arbitration. However, reference for arbitration was challenged by the plaintiff company by .
motioning the Appellate Tribunal under the Electricity Act, 2003 and the Appellate Tribunal allowed the appeal and remanded the complaint No.242 of 2006 to the Himachal Pradesh Electricity Regulatory Commission.
However, the Himachal Pradesh Electricity Regulatory Commission, r under orders of 24.05.2008, allowed the plaintiff company to withdraw the aforesaid complaint with liberty to approach the appropriate forum under law, hence the instant suit. Causes of actions are averred to have arisen on 21.03.2002, 19.04.2002, 20.06.2002, 29.06.2002, 3.7.2002, 6.7.2002, 7.7.2002, 8.7.2002, 11.7.2002, 12.7.2002, 22.7.2002, 7.8.2002, 17.8.2002, 20.8.2002, 18.01.2003, 20.1.2003, 29.03.2003, 16.04.2003, 29.4.2003, 30.04.2003, 11.6.2003, 20.06.2003, 25.06.2003, 26.6.2003, 4.7.2003, 26.7.2003, 29.7.2003, 2.8.2003, 16.2.2004, 27.5.2004, 5.6.2004, 14.6.2004, 15.06.2004, 1.7.2004, 7.7.2004, 17.7.2004 and on 13.9.2004 etc. Consequently, relief for rendition of a decree for ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 10 compensation comprised in a sum of Rs.one crores ninety eight lakhs along with interest @ 18 % from the date of filing of suit till payment is espoused in the .
plaint.
2. The defendants contested the suit, and, filed written statement, wherein they have taken preliminary objections, inter alia, limitation, maintainability, estoppel, bad for non joinder of necessary parties, etc. On merits, r The defendants admitted qua theirs receiving commutation mentioned in the plaint from the plaintiff company. However, it is pleaded in the written statement furnished by the defendants that the plaintiff had expressly agreed that the defendants will not be responsible for any breakdown or loss to the company on account of break down or tripping supply.
It is also contended in the written statement that in peak period of May, June and July, 2002, the plaintiff company was provided power to the extent of 98%, 96% and 96% respectively. Against the working hours of 744 during the month of May, the uninterrupted power supply was made available to the plaintiff for 732 working hours by the defendant. Similarly in the ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 11 month of June against 720 working hours uninterrupted supply was made available for 691 hours, i.e. 96% and in the month of July against 744 working hours the .
uninterrupted supply for 716 hours was made available by the defendants. It is further averred that as and when the power supply was not available also include the shut down of power, breakdown due to storm and rain or due to gird failure etc. It is contended that the Chief Electrical Inspector to the Govt. of H.P., accorded permission to run 780 KVA, 415 Volts DG sets, vide his office letter of 17.9.2002 after inspection being held on 14.6.2002. It is also averred that the Chief Electrical Inspector to the Govt. of H.P. is the necessary party, for the latter denying the averments that there was any intentional delay on his part to sanction the applied for DG sets by the plaintiff company at its plant. The contents of paras 7 and 8 of the plaint are denied rather it is contended that requisite information as asked for by the plaintiff company with respect to the log sheets etc., was supplied to it. It is also denied that the plaintiff at any point of time was provided with independent or dedicated feeder, as alleged. It is ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 12 contended that the defendants have always taken steps to provide sufficient and adequate power supply to the plaintiff and similar situated industrial concerns, .
the feeder in question providing supply to Bhungarni was also detached from the feeder in question and power to Bhungarni has been supplied independently by providing a separate feeder. In paragraph No.10 of the written statement, it is contended during the period 12th January to 19 th January, 2003, the power supply to the plaintiff company was more than 99 % of standard of reliability, hence, it is contended that the false allegations of short supply or power tripping were levelled against the defendants. It is contended that short fall of power generation during winter season as the power generation in Himachal is hydro generation.
The shortage of upstream water resource adversely hamper the power generation. The short fall in power supply during the moth of January, 2003 was owing to short fall in power general in Himachal and in order to regulate power supply, the power restriction and power cuts were imposed. Consequently, it is contended that benefit of Section 14 of the Limitation Act, is not ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 13 applicable, vis-a-vis, the plaintiff company's suit, since the plaintiff company was not pursuing prior thereto remedy before the the statutory authorities rendering .
them to be construction to be civil proceedings instituted before a civil court of first instant, whereas, only in respect whereof benefit of provisions of Section 14 of Limitation Act is applicable.
3. The plaintiff company filed replication to the written statement of the defendants, wherein, it denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.
4. On the contentious pleadings of the parties, this Court on 7.9.2009 struck the following issues inter-
se the parties at contest:-
1. Whether the suit filed by the plaintiff is within limitation?OPP
2. Whether the suit is not maintainable in view of the load sanction order dated 26.8.1995?
OPD.
3. Whether the suit is not maintainable in view of the provisions of Indian Electricity Act, 2003?OPD.
::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 144. Whether the plaintiff is estopped from filing the suit on account of its act, conduct, deed and acquiescence?OPD.
5. Whether the suit is bad for non .
joinder of necessary parties?OPD.
6. Whether the plaintiff is entitled to damages, if so, then to what extent?OPP
7. Relief.
5. For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as under:-
Issue No.1....... No. Issue No.2........ Yes.
Issue No.3........ Yes Issue No.4........ Yes Issue No.5....... Yes.
Issue No.6........ No.
7. Relief.......... Suit of plaintiff is dismissed as per the operative portion of the judgment.
Reasons for findings.
Issues No.1 and 3.
::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 156. Both the aforesaid issues are taken up together for discussion, as they are common in nature besides common evidence thereon rather stands hence .
adduced, by the parties.
7. Uncontestedly, the plaintiff company, vis-a-
vis, the grievance ventilated in the instant suit, rather availed, the purportedly statutorily contemplated mechanism, enshrined in the Electricity Act, 2003, comprised, in its accessing the Chairman, Board Level Dispute Settlement Committee. However, the aforesaid recoursings by the plaintiff company, proved abortive, (a) given the aforesaid dispute redressal mechanism, not, making any effective orders, upto, 26.10.2006, (b) whereat, the plaintiff was hence constrained to approach, the, Himachal Pradesh Electricity Regulatory Commission, (c) yet the latter made, qua the apt dispute, a, reference, vis-a-vis, arbitration, and, the apt reference, to, arbitration was rather challenged by the plaintiff company, by its preferring an appeal before the Appellate Tribunal, and, the latter accepted the apt appeal, hence, remanded, complaint No. 242 of 2006, to, the Himachal Pradesh ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 16 Electricity Regulatory Commission, and, the latter on 24.5.2008, hence, permitted the plaintiff, to withdraw the complaint, with, liberty to approach the appropriate .
court or forum, under law. The date of initial accrual, of, cause of action, vis-a-vis, the plaintiff company, is 21.03.2002, and, it continuously accrued uptil 2004, and, the instant suit came to be filed, in, the year 2008, hence, beyond the statutorily prescribed period, of, limitation, vis-a-vis, its institution/preferment before this Court. However, the learned counsel appearing, for, the plaintiff contends with much vigour, while, drawing the attention of this Court, to, the provisions of Section 14, of, the Limitation Act, provisions whereof stand extracted hereinafter:-
"14 Exclusion of time of proceeding bona fide in court without jurisdiction. --
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 17 prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other .
cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
(a) that with the Himachal Pradesh Electricity Regulatory Commission, under, orders rendered on 24.5.2008, rather permitting the plaintiff company, to, withdraw its apt complaint, and, its also according liberty, vis-a-vis, it to approach the appropriate court or forum under law, (b) thereupon, in consonance, with, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 18 the statutory mandate, as, borne in Section 14 of the Limitation Act, the, apt time or the apt period spent by the plaintiff company, in, prosecuting its remedy, .
before the statutory mechanism(s), rather being excludable, (a) given, its being therebefore hence prosecuted in good faith, (b) and, in Court, statutory forum whereof, hence, for, the apt defect of jurisdiction, was, rather disabled to entertain it. For testing the vigour of the aforesaid submission, this court, is, enjoined to, upon, an incisive surgical reading, of, the apt coinage "with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded", as, borne in Section 14 of the Limitation Act, hence, therefrom make apt unearthings, qua rather evident proof, in consonance therewith, rather making upsurgings, conspicuously qua, the, prior proceedings being (a) civil proceeding(s); (b) it/they being prosecuted, in, good faith in a court of first instance or appeal or revision; (c) whereas, the aforesaid evidently not holding the apt jurisdictional competence, to entertain it or to conclude it; (d) thereupon alone, the, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 19 benefit of Section 14 of the Limitation Act, being accruable or visitable upon the plaintiff. Ex facie the parlance, gained, by the afore underlined apt statutory .
portion, borne in Section 14 of the Limitation Act, (e) is, none other, than, qua the prior proceedings, being enjoined, to, be instituted in a court of law, and, the connotation ascribable, vis-a-vis, "the civil proceedings pending before the court of first instance", (f) is qua, its also singularly and pointedly appertaining, to courts, as understood in, the, strict sense, of, the judicial branch of the State, and, connotation thereof not appertaining, vis-a-vis, any quasi judicial body. Consequently, bearing in mind, the, afore connotation, ascribable to the afore apt under lined phrase, as, borne in Section 14 of the Limitation Act, (g) thereupon, the, prior hereto statutory remedies, availed by the plaintiff company, even if they were not properly constituted remedies, (h) yet when they were neither prosecuted, as civil proceedings, in the court of first instance, rather when they were prosecuted, before, a quasi judicial body, or, before, the, purportedly apt contemplated statutory redressal mechanism, (i) whereas, the latters' ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 20 not being construable to be stricto sensu courts nor being construable, as, a part of the judicial branch of the State, (j) thereupon, with the plaintiff evidently .
since accrual of causes of action, in, the year 2004, rather omitting, to, within the apt computable therefrom hence period, of, limitation, hence, institute the instant suit before this Court, (k) and, also when the time spent by the plaintiff, in its, prior hereto, rather prosecuting r no apt unbeneficial civil proceedings, before the apt court of first instance, is, concomitantly hence not construable, to be, rather hence, its, bonafidely prosecuting, apt, civil proceedings, in a court rather devoid, of, jurisdiction,
(k) thereupon, the time spent by the plaintiff company in its prior hereto, rather availing inapt remedies, hence, before purportedly statutorily contemplated authorities, is not, excludable, rather the plaintiff's suit hence falls outside the period of limitation.
8. Since, the decision rendered by the State Electricity Regulatory Commission, hence, permitting the plaintiff, to withdraw the apt complaint, with liberty to approach, the appropriate court or forum under law, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 21 is not contested by the defendants, to be ridden with any inherent fallacy, (i) thereupon, the plaintiff's suit is tentatively prima facie maintainable before this Court, .
(ii) yet for reasons pronounced by this Court, while, rendering disaffirmative findings, upon, the issue appertaining to the plaintiff's suit being within limitation, this Court, would yet not proceed, to, in conflict therewith, render, findings on the issue appertaining to the suit, being not maintainable, in, view of the provisions of Indian Electricity Act, 2003.
Consequently, issues No.1, and, 3 are answered in favour of the defendants and against the plaintiff.
Issues No. 2, 4, 5 and 6.
9. Despite this Court pronouncing the aforesaid findings, upon, issues No.1 and 3, this Court, in the interest of justice, deems it fit to test, the, validity of the plaintiff's claim, as set forth in the plaint. In proof of the averments, reared in the plaint, the plaintiff company, lead into the witness box PW-1, (a) who during the course of his deposition, borne in his examination-in-chief, tendered into evidence, copy of resolution Ex.PW1/A, memorandum of articles, borne in ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 22 Ex.PW1/B, (b) copies of representations/complaints, made by the plaintiff company, to, the defendants, borne in Ex.PW1/C-1 o Ex.PW1/C-21, (c) copies of the .
complaints made during the year 2002 to 2004, borne in Ex.PW1/D-1 to E.PW1/D-35, (d) copies, of, the replies of the defendants, borne in Ex.PW1/E-1 to Ex.PW1/E-4 etc. PW-1 was subjected, to, an ordeal, of, an exacting cross-examination, during course whereof, he, has acquiesced, to a suggestion qua the aforesaid power supply, being adversarially affected, in case of unprecedented rains, storms and grid failure. However, he thereafter volunteered, that, the aforesaid eventualities rather not occurring during the relevant period. Even if the defendants, do not deny, theirs receiving the aforesaid exhibits, exhibits whereof, comprise, the, communications, made to them, by the plaintiff company, elucidating therein its apt grievances, (a) arising from power tripping, sparked by the apt dedicated feeder, rather in breach, of, the apt contract, whereunder the defendants were obliged, to, exclusively, and, uninterruptedly purvey therefrom power vis-a-vis its plant, rather hence supplying ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 23 therefrom, power either to domestic consumers or to commercial establishment, (b) yet the mere receipt of the aforesaid exhibits, would not, per se hence carry .
forth, the, plaintiff's espousal, (c) unless, evidence comprised, in the apt log book, as, appertaining to the dedicated feeder, stood, adduced into evidence.
However, the plaintiff's, avers, that the aforesaid best evidence, though, was requisitioned by the plaintiff, from, the defendants, yet it remained unpurveyed to it, whereupon, it strives to mask, its, apt omission(s).
However, the aforesaid apt elicitations made upon it, is, denied by the defendant. Be that as it may, it was yet open for the plaintiff, to, elicit through an appropriate motion, being made before this Court, the apt log details, vis-a-vis, the dedicated feeder. The plaintiff yet omitted, to, make the afore apt strivings, (i) omission(s) of afore apt strivings, by the plaintiff, to, hence ensure adduction, of, best evidence in respect, of, the defendants, rather in breach, of, contract, hence, supplying, from, the apt dedicated feeder, hence, power, to, establishments other than the plaintiff, (ii) whereupon ensued, the, repercussion, of, befallment, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 24 of, power tripping, vis-a-vis, its plaint, and, in sequel whereof, the apt loss displayed, in the destruction certificate(s), stood purportedly entailed upon it, (iii) .
thereupon, it cannot be befittingly construed, that, the plaintiff, hence cogently, and, affirmatively proving the aforesaid res controversia.
10. The plaintiff relies, upon, Ex.PW1/B-4, comprising, a, letter of 31.1.2002, addressed by the defendant, to the plaintiff company, wherein recitals, are, borne qua the defendant, hence, exclusively supplying power to the plaintiff company, from, the dedicated feeder, and, no other consumers' load hence being connected therewith, rather load of the other consumers, standing removed, from, the apt dedicated feeder, (a) to canvass that hence the defendants rather acquiescing qua prior thereto, the, apt electric power, hence being supplied to other establishments, whereupon, occurred tripping, of, power supply, vis-a-
vis, its plant, and, whereupon, the apt concomitant losses hence stood entailed upon the plaintiff.
However, the aforesaid espousal, is not tenacious, (b) as the letter addressed by the defendant to the ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 25 plaintiff, is, of 31.01.2002, and, the intial accrual of cause of action, vis-a-vis, the plaintiff, is, of, 21.3.2002,
(c) and, when hence as aforestated, it, was incumbent, .
upon, the plaintiff to prove qua even prior to the issuance of Ex.PW1/B-4, the, defendants rather supplying power therefrom, to, other commercial and domestic establishments, (d) best proof whereof, would rather emanate, upon, its adducing into evidence, the, log details, appertaining to the apt dedicated feeder.
However, given the aforesaid best evidence, in affirmative proof, of the aforesaid res controversia, rather remaining, unadduced, thereupon, on anvil of Ex.PW1/B-4, also, no capital can be derived by the plaintiff.
11. The plaintiff, apart from the above, for ensuring, that, even when from, the apt dedicated feeder, there is an ill occurrence, of, power tripping, engendered by certain force majeure events, its, hence, not making its apt befallments, vis-a-vis, its plant (i) nor the, apt power tripping hence visiting any ill consequence, upon, its plant, had, on 19.4.2002 applied for sanction being accorded, for, installation, at ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 26 its plant, vis-a-vis, DG sets, for, augmenting, the, apt power supply thereto, (ii) and, with the relevant inspection being done, on, 15.06.2002, hence after two .
months therefrom, (iii) and, with the permission being granted, on, 17.9.2002, hence after three months elapsing, from the date of inspection, thereupon, the aforesaid delay, is, ascribed to the defendant. However, the aforesaid delay, as ascribed to the defendant, is rather not ascribable, to the defendants, as it stands testified by DW-1, in the latter's deposition, borne, in, his apt examination-in-chief -examination, that, the apt delay, rather arising, on account, of, negligence of, the, Chief Electrical Inspector, who, is, rather authorized to accord sanction, for, installing the DG sets, (ii) thereupon, it was imperative for the plaintiff, to add in the array of defendants, the, Chief Electoral Inspector, and, to make averments against him, qua his intentionally, delaying the according of sanction, vis-a-
vis, the installation of DG sets, in the plaintiff's plant,
(iii) and, only when hence the Chief Electoral Inspector, to the State of H.P., had meted, his, apt reply thereto, would hence,apt issues stand struck, and, upon, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 27 appraisal, of, evidence adduced thereon, it could be befittingly concluded qua the Chief Electoral Inspector, in, his delaying, the, purveying, of, the apt permission, .
his hence being guided by ulterior motive(s).
Contrarily, the aforesaid omission, rather constrains this Court,to repel, the, contention of the plaintiff, that, the apt delay, is, a sequel of any negligence or fault, on, the part, of, the defendants. Even otherwise, with hence DG sets, rather evidently existing in the plant, of, the plaintiff company, on 17.9.2002, and, thereupon, with, the, power supply, vis-a-vis, its plant hence being augmented, and, also its, obviating the ill effects, if any, of power tripping, arising, from the apt various force majeure events, hence, befalling the transmission, of, power by the defendants, vis-a-vis, the plaintiff's plant, (iv) thereupon, when the plaintiff, had, secured alternative means, for overcoming the deficit, if any, on account of any reason, even if unproven, in the transmission, of, power by the defendants, vis-a-vis, its plant, (v) thereupon, the availability thereof, cannot, ably equip the plaintiff, to, contend qua the loss, if, any, entailed upon its plant, ::: Downloaded on - 17/09/2018 22:58:30 :::HCHP 28 being decreed, to, be monetarily re-compensable, from, the defendants. Accordingly, issues No.2, 4, 5 and 6 are decided in favour of the defendants, and, against .
the plaintiff.
Relief.
12. In sequel to findings on issues aforesaid, the suit of plaintiffs is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of.
(Sureshwar Thakur)
13 th
September, 2018 Judge.
(jai)
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