Delhi District Court
Through His Attorney Shri Manjit Singh vs Bses Rajdhani Power Ltd on 22 February, 2010
IN THE COURT OF SH. SANJEEV JAIN
ADDITIONAL DISTRICT JUDGE-9 (Central): DELHI
RCA No.167/05 (I.D. No. 02401C1188282005)
Shri Tara Chand
S/o Shri Duli Chand
R/o 363, Village Hastsal,
Uttam Nagar, New Delhi-110059.
Through his attorney Shri Manjit Singh
S/o S. Khazan Singh,
R/o WZ-2A, Hind Nagar, P.O. Tilak Nagar,
New Delhi-110018
......Applicant
Versus
BSES Rajdhani Power Ltd.,
Regd. office: BSES Bhawan,
Nehru Place, New Delhi-110019
(Earlier Delhi Vidyut Board)
.....Respondents
Date of institution: 20.12.05
Final Arguments heard on: 11.02.10
Date of decision: 22.02.10
Appeal Under Order 41, Rule 1 of the Code of Civil Procedure
against Judgment and Decree dated 11th November, 2005 passed
by the court of Shri Manoj Kumar, Civil Judge, Delhi in Civil Suit
No.665/2001.
RCA No.167/05 Page 1 of 10
ORDER
AppellantShri Tara Chand (Plaintiff in the suit)has challenged theJudgmentand Decreedated11.11.05, passedby the courtofLd.Civil Judge,Delhi, inthecasebearing SuitNo.665/2001, titled as "TaraChand son ofShriDuliChand versusDVB" (Forthe sakeofconvenience hereinafter theAppellant isreferred as "Plaintiff"
and Respondent as "Defendant").
2. As pertheplaintiff's case,he was theregistered consumer inrespect ofelectricity connection bearing K.No.1471279(hereinafter referred as "Connection"), whichwas installed inthepremisesofthe plaintiff, havingloadof15 KW. The connection was obtained by the plaintiff in April, 1997. Plaintiff didnot receivethe electricity bills initially.
Plaintiff visited the office of the defendantand thereafter plaintiff was givenelectricity bill inJanuary,1999.He received this electricity bill amountingtoRs.30,095/-
whichwas dulypaidby him.
InJune,1999,theelectricity meterwas founddefective and therefore, itwas changed by the officials of defendant.
Thereafter, plaintiff received the electricity bills as per theconsumptionshown by the meterwhichwere deposited by him. Inthemonth ofOctober, 2001, RCA No.167/05 Page 2 of 10 plaintiff received electricity bill ofRs.1,52,532.98 paise.
He visited the office ofthedefendant and was informed by theofficials ofdefendant thatelectricity bill was raised fortheperiod15.04.1997 to11.06.1999 on thegroundthatelectricity meterwas defective.
Plaintiff alleged that impugnedbill was incorrect and thatthemaximum, after adjustment of amount of bills alreadypaidby him,the total demand of the impugnedbill shouldnotexceedRs.50,000/-
whichplaintiff was ready and willing topay.The offer oftheplaintiff forpaymentofRs.50,000/-
intwoinstallments on accountofimpugnedbill was notacceptable to the defendant.
Plaintiff allegedthatdefendantwas bent upon to disconnectthe electricity connection.Therefore,the suit for permanent injunction was filed.
3. InWritten Statement, itwas stated thatfirst bill inJanuary, 1999 was raised on minimum chargesbasis.
The meterwas stopped and therefore, itwas changedon 11.06.99.
The bill foran amountof Rs.1,46,990.01paise was raisedon accountof assessmentw.e.f.
15.04.1997 to11.06.1999 as perthenew meter.Defendantalleged thatdemand had been raised as perthetariff provisions and plaintiff has no cause of action in his favour to institute the suit.
RCA No.167/05 Page 3 of 104. On thebasispleadings of theparties and of material on record, following issues were framed on 25.09.2002:-
1. Whether plaintiff is entitled to the decree of perpetual injunction as prayed? OPP
2. Relief
5. PW1 ShriManjit Singhappearedinplaintiff's evidenceas hispowerofattorney, whereasDW1 ShriOm Prakashwas examined.
VideJudgmentand Decree dated11.11.05, Ld.Civil Judge,Delhi dismissed the suit.
6. Impugned judgmenthas been challenged mainlyon the groundsthatProvision ofSec.27ofElectricity Act,1910 and thelaw laiddown by theHon. Supreme CourtinBombay Electric Supply and Transport Undertaking Vs. Laffans (I) Pvt. Ltd. and Anr., AIR 2005 S.C. 2486 hasnotbeen properly appreciated by Ld.Civil Judge;
thatelectricity meterstoppedfunctioning inApril, 1997 and as such, plaintiff cannotbe penalized by raising thebill fortheperiod15.04.97 to11.06.1999;
thatamount ofRs.30,095/-
deposited by theplaintiff RCA No.167/05 Page 4 of 10 was not adjusted;
thatno show cause noticeor opportunity for hearingwas giventotheplaintiff;
thatdefendant shouldhave raised thebill fora periodoflast threeyearsand therefore, was notentitled to claim the bill for the period 15.04.1997 to 11.06.1999 as th raisedinOctober, 2991;thatprovision ofSec.56ofElectricity Act, 2003 whichprovidesgiving15 days clearnoticein writing to the consumerbeforedisconnection ofsupplywas notcompliedwithby the defendant.
7. Appellant submitted thatimpugnedjudgmentand decreeis against thelaw and factsand therefore, requested tosetasidethe same.
8. Ihave heardtheld.counselsfortheparties, gone through written argumentsfiled by therespondents and considered theTrial Court record and the impugned judgment.
9. Admittedcase between the parties is thatmeter was stoppedinApril, 1997 itself and forthefirst timebills were raisedin June,1999.Thiselectricity bill fora total amount ofRs.30,095/-
was RCA No.167/05 Page 5 of 10 raisedwhichwas deposited intime.Itisalsoadmitted case by the parties thatthemeterwas beingusedfora sanctioned loadof15 KW.
As perdefendant, this electricity bill foran amountofRs.30,095/-
was raisedon the basisof minimum charges. When the meter was changed,theimpugnedbill was raised on thebasisofnew meter.Ld. Civil on thejudgmentof Bombay Electric Judge,Delhihas relied Supply and Transport Undertaking Vs. Laffans (I) Pvt. Ltd. and Anr., AIR 2005 S.C. 2486 inwhichthescopeofSection 26 ofIndian Electricity Act,1910 (since repealed) was considered.
Ld.Civil Judge, Delhihas reproduced therelevant parasofthesuit judgmentwhichis reproduced by me for reference:-
"Section 26(6) contemplates a meter which is either running slow or fast with the result that it does not register the correct amount of energy supplied. Section 26(6) confers power upon the electrical Inspector to estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct. Where the meter is running slow or fast, it will be RCA No.167/05 Page 6 of 10 possible for the Electrical Inspector to estimate the amount of energy supplied to the consumer by determining the extent or percentage of error in recording the supply, whether plus or minus. However, where the meter is burnt or is completely non- functional, such an exercise is not at possible. Therefore, S. 26(6) can have no application in a case where a meter has become completely non-functional on account of any reason whatsoever."
Considering theprovisions ofSec.26 ofIndianElectricity Act,1910 (since repealed) and thelawlaiddown by Hon.Supreme Courtin Bombay Electric Supply and Transport Undertaking case,Sec.26(6)was applicable inthiscase where themeterwas either sloworfastand was notgiving thecorrect reading.
Where the meterisburntorcompletely stopped, Section 26 (6)ofElectricity Act, 1910 has no applicability.
Ld.Civil Judgehas carefully considered the evidenceof theparties and concludedthatbill has been correctly raisedas perthenew meter.Ihave gone throughthetestimony of witnesses fromtheTrial Courtrecord.
I do notfindany errorinthe RCA No.167/05 Page 7 of 10 findings of the Ld. CivilJudge thatplaintiff has not placedany evidenceon recordtoshow thatimpugnedbill has notbeen correctly raised.
10. The suit was filed by theplaintiff.
The onuswas alsoupon the plaintiff to establish thatimpugned bill has not been correctly raisedand therefore, he was entitled forthe relief of permanent injunction.
Iagreewiththeconclusion drawn by theLd.Civil Judge, Delhithatplaintiff has notplacedon recordany evidencetoestablish that impugned bill has not been correctly drawn.
11. After careful consideration, inmy view,Ld.Civil Judgehas correctly appreciated theprovision ofSec.26ofIndian Electricity Act, down by Hon.Supreme Courtincase Bombay 1910 and thelawlaid Electric Supply and Transport Undertaking. Careful perusal ofthe saidjudgmentmakes itclearthatwhere themeterwas completely stopped, Sec.26 (6) of the Electricity Act, had no applicabilit
12. Ido notfindany meritinthecontention ofappealthatno show cause noticeor opportunity of hearingwas given to the RCA No.167/05 Page 8 of 10 appellant orthatprovision ofSection56 ofElectricity Act,2003 was notcompliedwith.
Iam alsonotimpressedwiththecontention thatin October, 2001,defendant shouldhave raisedtheimpugneddemand forlastthreeyears.The limitation periodmay be provided forthe recovery ofamount fromthecauseofaction whilefiling ofsuit.The cause of actionarosewhen the impugned bill was raisedby the defendantand was notpaidby theplaintiff.
Thereisno limitation periodsuchas forraising thebill inthesituation when themeterwas completely stopped.
13. Aftercareful consideration, inmy opinion, Ld.Civil Judge, Delhihas properly appreciated thepleadings, testimony ofwitnesses, theprovisions oflaw and thecasesrelied on by theparties.
Inmy opinion, Ld.Civil Judge,Delhihas concludedthedisputed issuesby giving cogent reasons.
14. Otherwisealso,the relief of injunction isa discretionary relief, whichmay be grantedby thecourtkeepinginviewthevarious factors.The discretionary relief of injunction can be grantedonly when theplaintiff has a reasonably strongcaseand islikely tosuffer RCA No.167/05 Page 9 of 10 irreparable losswhichmay notbe compensatedintermsofmoney.
Here itwas a careofbilling dispute whichwas purelyrelated tothe money and thereshouldhavebeen no question ofirreparable loss.
In respectoftherelief against thedisconnection of electricity, plaintiff couldhave maintained hissuitforthepermanentinjunction.
When plaintiff failed toprovethematerial avermentsofhiscaseinrespect of the correctness of the bill, Ld. Civil Judge was justified in d relief of injunction.
15. Aftercareful consideration, inmy opinion, thegroundsof appealare withoutany substance.The impugned judgmentand decree passed by the Ld. CivilJudge does not requireany interference.
Accordingly, theappealisdismissed withno orderas to cost.
TCR be sentbackalongwith copyoftheorder.Appealfile be consigned R/R to after due compliance.
(SANJEEV JAIN) ADDITIONAL DISTRICT JUDGE-9, (Central District), Delhi Announced in the Open Court Today : 22.02.10 RCA No.167/05 Page 10 of 10