Delhi District Court
M/S Balaji Electricals vs Bses Rajdhani Power Ltd on 11 July, 2007
-: 1 :- Suit No. 18/2007
IN THE COURT OF SHRI S. S. HANDA, ADDl. DISTT.JUDGE
DELHI
SUIT NO.18/2007
M/s Balaji Electricals, Through its proprietor Shri
Sanjeev Kumar, R/o B-2 C, Bihas Vihar, Uttam Nagar,
Delhi.
Petitioner
Vs
BSES Rajdhani Power Ltd., Through its Director/CEO,
Shakti Bhawan, Nehru Place,New Delhi
Respondent
Date of Assignment :12.5.2007
Date of Arguments :09.7.2007
Date of Decision :11.7.2007
ORDER
This order will dispose of an application/ petition U/S 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act)dated 16.5.2007 for grant of ad interim injunction as well as its maintainability.
2. Precisely, the case of the petitioner is that it is a partnership company having its office at Bihas Vihar, New Delhi and respondent is a company registered under the Companies Act and is engaged in the distribution and revenue collection of electricity supply. In the year 1999, the work of electricity distribution was being done by Delhi Vidhut Board (DVB), predecessor of the respondent. It identified several unauthorised ( Page No. 1 of 11 ) -: 2 :- Suit No. 18/2007 colonies which were unelectrified but practically all the inhabitants thereof were using the electricity by illegally tapping the source of electricity. The DVB vide its resolution dated 08/06/99 & 9.9.99 had approved the scheme for electrification of 238 such colonies for the purpose of curbing the theft-menace of electricity therein. As per the scheme a single point delivery connection was to be given to the prospective consumer/ Resident Welfare Association/ the Electrical Contractor for further distribution of electri-city amongst the residents of that locality. It was also decided that domestic tariff will be applicable on those consumers. The DVB invited applications and petitioner was allotted an area of Nawada Housing Complex for maintenance and revenue collection. An agreement to this effect between the parties was executed. The key No.2240- 9300-9025 was allotted to the petitioner. It is alleged by the petitioner that it was agreed that RWA / contractor will be allowed to charge the meter rent and electricity tax at applicable rate and rebate of 20%, which was subsequently increased to 25%, on electricity consumption was to be allowed for maintenance and distribution of the electricity. That since beginning the respondent has been violating the terms of the agreement and raised electricity bills in contravention of the agreement, therefore, petitioner and other such RWA/contractors had to approach the permanent Lok Adalat. As the matter could not be settled, therefore, a petition was filed before the Hon'ble ( Page No. 2 of 11 ) -: 3 :- Suit No. 18/2007 District Judge, Delhi which was assigned to this court. An order was passed by this court for staying the disconnection for the supply of electricity to the petitioner subject to depositing of 80% of the demand raised by the respondent through various bill(s). A direction was also passed for appointment of Arbitrator by the respondent. The arbitrator passed its award. The petitioner filed petitions U/S 34 of the Act. The respondent again started raising bills on the basis of assessment units without following the due process as provided in the Electricity Act, 2003. When the petitioner protested the respondent threatened for disconnection of the electricity supply. Due to the apprehension of public discontentment the petitioner had to pay the electricity bills. He was also forced to make the payment of the transformer which was burnt due to the ill maintenance. The officers of the respondent issued a circular in the area asking the consumers not to pay the electricity bills to the petitioner and also organised a camp for depositing the forms for new electricity connection directly from the respondent. The petitioner has also received a notice dated 30/04/07 on 05/05/07 despite of making payment of all the previous bills. As per the said notice the petitioner was directed to make a payment of Rs.31,32,695/- (Rupees Thirty one lakh thirty two thousands six hundred And ninety five Only) on or before 12/05/07 alleged by in violation of the clear provision of Section-56 of the Electricity Act, 2003 which ( Page No. 3 of 11 ) -: 4 :- Suit No. 18/2007 provides that 15 days clear notice should be given to the consumer before disconnection. It was further pleaded that it was the duty of the respondent to ensure the supply of electricity to the petitioner and balance of convenience is in favour of plaintiff and plaintiff has prima facie case in his favour. The petitioner this perspective sought the final relief that 'respondent may be restrained from disconnecting the electricity supply of the petitioner/ plaintiff in suit premises through connection in dispute.'
3. The case of the respondent in nutshell is that the petitioner is not the original contractor in respect of single point delivery system and, therefore, he is not competent to file the present petition. That the application is not maintainable as the petitioner did not disclose his intention to take recourse to the arbitral proceedings. No notice U/S 21 of the Act has been received from the petitioner to that effect. The petitioner has failed to state any illegality or impropriety in the impugned bill. The petitioner has been enjoying the electricity without making the payment of the electricity bill. The arbitration clause provides that petitioner shall not withhold the payment of electricity bill. The respondent is the successor of the DVB. The respondent is making efforts to supply the electricity directly to the consumers without inter- mediatories such as the petitioner. That the respondent has raised electricity bills rightly as per the provisions of ( Page No. 4 of 11 ) -: 5 :- Suit No. 18/2007 the Electricity Act, 2003 and rules and regulations made there under. It was admitted that notice of disconnection was issued to the petitioner. It was also mentioned therein that disconnection will be made after 15 clear days from the receipt of notice. Denying all other material allegations of the petitioner, the respondent prayed for dismissal of the application.
4. I have heard arguments of Ld. counsel for both the parties and perused the case file.
5. In order to get the relief of injunction under Section 9 of the Act, the petitioner has to show firstly, that there exists an arbitration agreement between the parties. Secondly, a dispute must have arisen which is referable to the Arbitration. Thus,a prima facie case in favour of the petitioner has to be seen? Thirdly, that he has intention to take recourse to the arbitral proceedings. Fourthly, the balance of convenience lies in his favour and lastly that he will suffer irreparable loss in case injunction is not granted to him.
6. It is an admitted fact that an arbitration agreement was entered into between the parties. For proper appraisal it is required to be seen; whether a dispute has also arisen between the parties which is referable to the arbitrator? The case of the petitioner is that bill was raised incorrectly on the basis of assessment units in ( Page No. 5 of 11 ) -: 6 :- Suit No. 18/2007 violation of the provisions of Electricity Act and rules made thereunder and the respondent did not deposit the bill amount. A notice dated 30.4.2007 was sent to the petitioner informing him that supply of electricity will be disconnected after 15 days if amount of the bill is not deposited.
7. Ld. counsel for the petitioner relied on Section 56 of the Electricity Act and argued that notice was defective as it was dated 30.4.2007 and it was received on 5.5.2007 whereas it contained that supply will be disconnected on 12.5.2007.
8. Section 56 of the Electricity Act runs as under:
"Disconnection of supply in default of payment.- (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company or may, after giving not less than fifteen clear days' notice in writing, to such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnected the supply, are paid, but no longer"
9. It has been argued on behalf of respondent that although notice dated 30.4.2007 contained an error regarding date yet it has given clear understanding to the petitioner that supply of ( Page No. 6 of 11 ) -: 7 :- Suit No. 18/2007 electricity will be disconnected after 15 days from the date of receipt of notice, if amount of bill is not deposited. The petitioner can not take plea that notice was invalid. In support of his contention Ld. counsel for respondent relied on cases (i) Bhagabandas Aggarwalla Vs Bhagwandas Kanu & Ors, AIR 1977 SC 1120; (ii) Ayisabeevi & Anr. Vs Aboobacker, AIR 1971 Kerala, 231; (iii) Ram Bhandhan & Ors Vs Duddar Ram, AIR 1971 All 485; and (iv) Bhagyanagar Khadi Samithi, Hyderabad Vs S.B.Chitnis (died) & Ors, MANU/AP/0699/1998:
1998(5) ALT 199. It was held in the case mentioned at (iv) that:
"It is now well settled that a liberal construction is put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description or the premises or name of the tenant or the date of the expiry of the notice; and that a test of its sufficiency is not what its content is means to a stranger ignorant of all the facts and circumstances touching the premises to which the notice purports to refer, but what they could mean to tenants presumably conversant with all those facts and circumstances and mistakes, if any, should not be construed with desire to find faults, but they should be construed liberally. A notice to quit must be construed broadly not with a desire to find faults with it which could render it effective, but it must be construed ut res magis balet qitam pereat."
The other three rulings cited by Ld. counsel for respondent are also on the same point.
10. On the other hand, it has been argued on behalf of counsel for petitioner that none of the case law relied on by Ld. counsel for respondent pertains to Electricity Act and therefore none will provide any benefit to the respondent. In support ( Page No. 7 of 11 ) -: 8 :- Suit No. 18/2007 of his arguments, Ld. counsel for plaintiff relied on cases (i) Ramesh Kumar Vs Delhi Electricity Supply Undertaking,MANU/DE/ 0667/1995: 1995 RLR 488; and SA Pipes Ltd. Vs. Delhi Electric Supply Undertaking, MANU/DE/ 0163/1994: AIR 1999, Delhi
308.
11. The arguments advanced by Ld. proxy Counsel for petitioner are not tenable for the reasons, firstly, that liberal construction to find out the intention mentioned in the notice has to be taken. In the present case, it has been clearly mentioned in the notice dated 30.4.2007 that the electricity of the petitioner will be disconnected after 15 days, if amount of bill is not deposited. The counsel for the respondent though admitted that there was mistake of date in the notice, yet the petitioner who has been dealing with the was given 15 days notice to pay the amount of the bill, instead of payment he filed the present suit on technical ground. Secondly, the rulings cited by Ld. counsel for respondent support the case of the respondent in liberally construing the provisions of notice.
12. Ld. counsel for respondent further argued that application of the petitioner under Section 9 of the Act, is even not maintainable as petitioner has not taken any steps to take recourse to the arbitral proceedings as per arbitration agreement and he has failed to mention particulars/facts in the plaint/ petition in that regard. In support of ( Page No. 8 of 11 ) -: 9 :- Suit No. 18/2007 his arguments, Ld. counsel relied on a case Sundram Finance Ltd. Vs NEPC India Limited, (1999) 2 SCC 479. On the other hand Ld. counsel for the petitioner also relied on the same judgment. It was held therein that:
" When a party applies under Section 9 of the 1996 Act, it is implicit that there is final and binding arbitration in existence. It is also implicit that a dispute must have arisen which is referable to the arbitral tribunal. Section 9 further contemplates arbitration proceedings taking place between the parties*** There has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings if, at the time when application under Section 9 of the Act is filed, the proceedings had not commenced under Section 21 of the 1996 Act***The court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intents to take the dispute to the arbitration***"
13. It is an admitted case of the parties that petitioner has not served any notice for taking recourse to the arbitral proceedings. In the relief clause of the petition or elsewhere in the petition, it has not been mentioned that petitioner wants interim protection till he takes recourse to the arbitral proceedings or till arbitrator is appointed.
14. In a case of Firm Ashok Traders & Ors. etc. Vs. Gurumukh Dass Saluja & Ors., AIR 2004 SC 1433, it was held by Apex Court that:
"The party invoking Section 9 may not have actually commence the arbitral proceedings but must be able to satisfy the court that the arbitral proceedings are actually contemplated or manifestly intended and are positively going to commence within a reasonable time. What is a reasonable time will depend on the facts and circumstances of the case and the nature of interim relief sought for would give an indication itself thereof. The distance of time must not be such as would destroy the proximity of relationship of two events between which it exists and elapses. The purpose of enacting Section 9, read ( Page No. 9 of 11 ) -: 10 :- Suit No. 18/2007 in the light of the modern law and UNCITRAL Rules is to provide "interim measures of protection". The order passed by the court should fall within the meaning of the expression" an interim measures of protection" as distinguished from an all time or permanent protection."
15. Principles of above-mentioned ruling are squarely applicable to the present case. Accordingly, the petitioner nor even mentioned facts on the basis of which it could be gathered that petitioner has intention or manifest intention to take recourse to the arbiral proceedings or that he wants only interim protection. The reasons which support my decision are firstly, that petitioner has not served any notice for taking recourse to the arbitral proceedings. Secondly, despite of taking the specific plea and filing document in this regard that respondent has been sending incorrect electricity bill on the basis of assessment units for the last many months, the petitioner has not taken any action for appointment of an arbitrator. This delay itself shows that he did not have manifest intention to take recourse to the arbitral proceedings. Lastly, the petitioner has not prayed for grant of interim protection till he takes recourse to the arbitral proceedings. The petitioner has sought a sort of permanent injunction for restraining the respondent to disconnect the supply of electricity. Moreover, the petitioner, a sole proprietorship concern, cannot sue in its name.
16. In view of the reasons and discussions, ( Page No. 10 of 11 ) -: 11 :- Suit No. 18/2007 made here in above, it is held that though there was an arbitration agreement between the parties and the petitioner also disputed the bill & the notice; yet neither the petitioner could show a prima facie case in his favour nor he could establish his manifest intention to take recourse to the arbitration proceedings. Besides, the petitioner would not suffer irreparable loss in case relief of injunction is not granted to him. Therefore, it is held that there is no merit in the application/petition of the petitioner for grant of injunction under Section 9 of Arbitration Act. Accordingly, petition being breft of merits and not maintainable, is dismissed. However, in the facts of the present case, parties are left to bear their own costs.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON (S. S. HANDA) THIS 11th DAY OF JULY 2007 ADDL. DISTRICT JUDGE DELHI.
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