Delhi District Court
K.R. Pulp & Papers Ltd vs Bses Yamuna Power Ltd on 6 May, 2019
IN THE COURT OF SH. SUMIT DASS, ADDITIONAL DISTRICT
JUDGE - 02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 1408/16
K.R. Pulp & Papers Ltd.
304 T/F, Roots Tower,
District Centre, Laxmi Nagar,
Delhi-110092.
Through Mr. Rajiv Sharma
AR of the plaintiff company ...Plaintiff
Versus
BSES Yamuna Power Ltd.
Shakti Kiran Building
Karkardooma, Delhi-110032.
Also at:
Radhu Place Near V-3s Mall,
Delhi-110092. .... Defendant
Suit presented on : 27.05.2015
Arguments concluded on : 30.04.2019
Judgment Pronounced on : 06.05.2019
JUDGMENT
1. The present order shall dispose of the captioned suit for mandatory injunction and compensation filed by the plaintiff. Controversy lies in a very narrow compass and in my opinion a CS No. 1408/16 Page No. 1/21 summary of facts will be sufficient rather than providing a detailed narration thereof.
i) Plaintiff is a well known company in the paper industry having its registered office at 304 T/F, Roots Tower, District Center, Laxmi Nagar, Delhi-110092. The suit has been filed by Sh. Rajiv Sharma who is authorized to file the present suit on behalf of the company and there is a Board resolution dated 02.02.2015 in his favour.
ii) Plaintiff contends that they are having electricity connection for the said premises and the load was 16 KW since the very inception through C.A. No. 100033402. The plaintiff company was paying the bill without fail and the average consumption in a tabulated form was stated in the plaint, which I am also reproducing as here under :-
From To No. of days Units 24.11.2013 26.12.2013 33 531 27.12.2013 24.01.2014 29 421 25.01.2014 22.02.2014 29 615 23.02.2014 25.03.2014 31 669 26.03.2014 23.04.2014 29 868 24.04.2014 24.05.2014 31 1735 iii) It was further averred that plaintiff received a bill dated CS No. 1408/16 Page No. 2/21
12.07.2014 amounting to Rs. 61,422/- for 5,456 units which was much higher than the normal bills/consumption. Plaintiff had enquired from the defendant whereafter the meter was checked and the same was found in burnt condition.
iv) Subsequently for the following period i.e. from 24.06.2014 to 22.07.2014 the bill was for consumption of 11249 units and in the later period i.e. from 23.07.2014 to 23.08.2014 the bill was for 14858 units.
v) Plaintiff deposited the requisite fee for testing the meter whereafter on 03.09.2014 the electricity meter was changed. The old meter was sent for testing and it was informed that the meter terminal was found burnt because of which the consumption of units was abnormally high.
vi) It was further submitted that defendant company unilaterally increased the load from 16 KW to 50 KW on account of high consumption of electricity due to faulty meter from July 2014 and when the plaintiff objected to the same the defendant assured them to correct the load however, they failed to do so. Further the defendant instead of correcting the mistakes kept on sending the bills and also threatened the plaintiff to disconnect the electricity connection and compelled the plaintiff to pay an amount of Rs. 1,50,000/- on 30.08.2014. Again the defendant had pressed upon to CS No. 1408/16 Page No. 3/21 pay the remaining amount of Rs. 2,32,800/-. As such, plaintiff again paid/deposited a sum of Rs. 30,000/- on 31.10.2014.
vii) Later on a legal notice was sent by the plaintiff dated 12.01.2015 whereafter the defendant instead of complying with the same started using arm twisting tactics to extract the aforesaid illegal bill on threats of disconnecting the electricity supply and lastly on 03.02.2015 had disconnected the same whereafter the plaintiff had to pay a sum of Rs. 2,57,410/- on 03.02.2015. Subsequently electricity supply to the premises was restored.
viii) Later on plaintiff company had filed a complaint before Consumer Forum at Saini Enclave which was dismissed/returned as the plaintiff was using commercial connection and not a domestic connection.
ix) In these circumstances plaintiff had prayed for the following relief :-
a) to pass a decree of mandatory injunction in favour of the plaintiff and against the defendant thereby directing to the defendant to correct the loan to its original i.e. 16 KW from 50 KW on the basis of actual consumption of the electricity by the plaintiff which has been unilaterally increased by the defendant.
b) to further pass a decree of mandatory injunction in favour of the plaintiff and against the defendant thereby directing the CS No. 1408/16 Page No. 4/21 defendant to adjust the excess amount of bills in the subsequent cycle of bills.
c) to further pass a decree of Rs. 5 lacs in favour of the plaintiff and against the defendant thereby directing the defendant to pay a sum of Rs. 5 lacs to the plaintiff against the mandatory agony/loss suffered due to disconnection of the services.
2. On behalf of defendant WS was filed wherein it was stated that the suit was barred on the principle of estoppel as on 03.02.2015 plaintiff had cleared its outstanding dues without any protest.
On merits the case as set forth by the defendant was that plaintiff was using electricity at the premises as mentioned with a connected load of 16 KW since the date of energisation of connection. There had been regular fluctuation in the MDI [Maximum Demand Indicator] recorded against the connection in issue whereafter the load was increased to 50 KW as per the directions issued by DERC. It was further stated that meter had recorded the consumption which reflects the MDI as high as 68 KW. This was also the situation in the month of July 2012 as the MDI was 68.6 KW in July 2012. In the month of July 2013 MDI was recorded as 59 KW and in the month of October MDI was 41.2 KW. Thus, the increase in MDI was justified. It was further admitted that the meter of the plaintiff was checked and the same was found to be burnt however, the same by no means suggest that meter was running fast or the CS No. 1408/16 Page No. 5/21 meter was defective as alleged by the plaintiff. It was stated that burning of terminal by no means affect recording of unit by such a meter.
Remaining paras are not relevant for the purpose of disposal of the same as the reason of electricity connection and the payment of the amount by the plaintiff has been admitted. Dismissal of the suit has been sought for.
3. Replication was also filed on behalf of plaintiff wherein the averments made in the WS were denied as false and incorrect as well as corresponding plaint averments were reiterated and re- affirmed
4. Upon the pleadings of the parties following issues were settled vide order dated 16.01.2017 :-
i. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant to correct the load from 50 KW to 16 KW on the basis of actual consumption?OPP ii. Whether the plaintiff is entitled for a decree of mandatory injunction against the defendant directing it to adjust the excess amount of bills in subsequent billing cycles?OPP iii. Whether the plaintiff is entitled for a decree in the sum of Rs.5 lac against the defendant as compensation?OPP iv. Relief.CS No. 1408/16 Page No. 6/21
5. Matter was listed for evidence.
On behalf of plaintiff PW-1 Sh. Sompal Ruhil, AR of the plaintiff company was examined. He tendered his evidence by way of affidavit in lieu of examination in chief as Ex. PW-1/A and deposed as per the case set forth in the plaint. He proved the following documents :-
i) Original Board Resolution dated 10.05.2017 is Ex. PW1/1
ii) Consumption history of the plaintiff mentioned as Ex. PW1/2 in the affidavit is de-exhibited and marked as Mark A.
iii) Copy of memo alongwith cheque dated 31.10.2014 drawn on SBI mentioned as Ex. PW1/3 in the affidavit is de-exhibited and marked as Mark B.
iv) Legal notice dated 12.01.2015 and postal receipts are Ex. PW1/4.
v) Copy of payment receipt dated 03.02.2015 is Ex. PW1/5.
vi) Bill dated 27.01.2015 for Rs. 2,57,416/- mentioned as Ex.
PW1/6 in the affidavit is de-exhibited and marked as Mark C. This witness was cross examined at length. PE was closed.
6. Sh. Pramod Gupta, AFO in BSES YPL appeared in the witness box as DW-1. He tendered his evidence by way of affidavit in lieu of examination in chief as Ex. DW-1/A and deposed as per the case set forth in the WS. He proved the following documents :-
CS No. 1408/16 Page No. 7/21i) Copy of SAP against CA No. 100033402 is Ex. DW1/1.
ii) Meter Test Report is Ex. DW1/2.
iii) Computerized statement of account is Ex. DW1/3.
iv) Request of re-connection order is Ex. DW1/4.
v) Certificate U/s 65-B of Indian Evidence Act is Ex. DW-1/5.
This witness was duly cross examined and DE was closed.
7. I have heard the arguments advanced by either side.
8. Issues are interconnected based on same evidence and in my opinion a common discussion shall suffice. Issues are as under :
i. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant to correct the load from 50 KW to 16 KW on the basis of actual consumption?OPP ii. Whether the plaintiff is entitled for a decree of mandatory injunction against the defendant directing it to adjust the excess amount of bills in subsequent billing cycles?OPP iii. Whether the plaintiff is entitled for a decree in the sum of Rs.5 lac against the defendant as compensation?OPP Now broadly the suit which has been filed by the plaintiff touches two aspects - i) increase in the load from 16 KW to 50 KW;CS No. 1408/16 Page No. 8/21
ii) reason of inflated bill was on account of the consumption data derived from the burnt meter.
8.1 Insofar as first point is concerned for a moment I am not touching the same but shall revert to the same after I decide point (ii) as to the effect of a burnt meter.
8.2 It is an admitted fact that the meter was removed from the site and sent for testing. The testing report has also been placed on record. I am quoting the said testing report Ex. DW1/2 which would clarify the facts. The same reads as under :-
(c) Seals Details :
Number Remarks
i) Plastic Seals 1. ______________________
2. ______________________
ii) Hologram seals 1. YH60073 OK_____
2. YH60074_______OK_____
(d) Visual Observation : RTC Dated : 08/12/2014 Meter ultrasonic welding found OK R & Y phase terminal burnt
(e) Functional Test :
1) LCD OK 2) LED : Not OK
CS No. 1408/16 Page No. 9/21
3) Meter downloaded through : Rated Voltage
(f) Accuracy Test :
Three Phase Meter Voltage = 240 V Current Ib Power factor = 1.0 At R- Phase Voltage Current Burnt At Y- Phase Voltage Current Burnt At B- Phase Voltage Current Burnt At Balance Load Burnt
(g) Billing Parameters :
Reading Kwh KVah Date MCR ______________________________ EBS _______________________________ MRI 138998 160218 08/12/2014 MD Detail 68.6 KW 68.5 KW 08/12/2014
(h) Special Observation with Remarks :
Observation high MD occurred due to magnetic interference Meter showing magnetic event no. of time in history data Meter showing high consumption in recent month. Meter R 7& Y Phase terminal found burnt Magnetic interference could be due to burnt CS No. 1408/16 Page No. 10/21 (I) Conclusion : Tested by Approved by Meter found burnt Pooja Mishra Prabhat Mukhriya Perusal of the record reveals that insofar as probability of tampering of the meter is concerned the hologram seal was found intact, the meter ultrasonic welding was also found OK and LCD was also OK however the meter phases were found burnt. Meaning thereby insofar as any external tampering of the meter is concerned or any attempt to open the same qua the said there is nothing in the meter testing report. Same is important for the reason that had there being any evidence on the aforesaid aspect, it would have formed the basis of concluding that there has been some sort of an external application for the purposes of tampering with the meter. However, insofar as the said aspect is concerned the report does not in any manner castigate the plaintiff.
8.3 The special observation(s) are also pertinent as it is stated that high MDI occurred due to magnetic interference, Meter showing magnetic event no. of time in history data, Meter showing high consumption in recent month, Meter R & Y Phase terminal found burnt and the Magnetic interference could be due to burnt.
In these circumstances in my opinion when there is a detailed comprehensive filed by the defendant themselves and which probablizes that high MDI is due to magnetic interference and/or the CS No. 1408/16 Page No. 11/21 magnetic interference is on account of the fact/could be due to the meter being burnt, implicit reliance on the said data or retrieved data from the meter is neither justified nor proper as the data is not free from doubt or is corrupted on account of the aforesaid factors.
8.4 The DERC Supply Code and Performance Standards Regulations, 2007 [in short DERC Supply guidelines] particularly guidelines no. 40 and 43 are relevant and rather recourse should have been taken to the same in the given set of facts and circumstances. The same are extracted as under :-
Guideline No. 40 :- Burnt Meter
a) in case the meter is found burnt upon inspection by the Licensee on consumer's complaint or otherwise, the Licensee shall restore connection in six hours upon receiving the complaint by bypassing the burnt meter after ensuring that necessary corrective action at site is taken to avoid future damage. New meter shall be provided by the Licensee/consumer, as the case may be, within three days.
b) the Licensee shall get the burnt meter removed from site/consumer's premises and test the same, if it is established, based on test results, that meter got burnt due to technical reasons e.g. voltage fluctuation, transients etc. attributable to system constraints, the licensee shall bear the cost of the meter.
In case upon inspection of the consumer's CS No. 1408/16 Page No. 12/21 installation and subsequent examination of the meter, it is established that meter got burnt due to reasons attributable to the consumer e.g. tampering, defect in consumer's installation, meter getting we due to falling of water, connection of unauthorized load by the consumer etc. the consumer shall bear cost of procuring and installing the new meter. The consumer shall also pay to the licensee the cost of the meter less the depreciation at the rate of 6% per annum (or the rate approved by the Commission for ARP purposes from time to time) from the date of installation.
c) In case the meter if found burnt and there is reason to believe that an official of the licensee gave a direction connection, pending replacement of meter, a case of theft of energy shall not be booked.
Consumer's complaint for replacement of burnt meter or the complaint regarding disruption in supply of energy shall be considered sufficient for this purpose. IN case a consumer hinders replacement of burnt meter or does not intimate the licensee, the drawl of energy under such circumstances shall be dealt as per Part XIV of the Act.
Guideline No. 43 :- Billing during the period defective/stuck/stopped/burnt meter remained at site.
i) the consumer shall be billed for the period the defective/stuck/ stopped/ burnt CS No. 1408/16 Page No. 13/21 meter remained on site, subject to a maximum of six months, based on the estimated energy consumption by taking the consumption pattern of the consumer for the twelve months prior to the period during which the meter remained defective. The amount already paid by the consumer for the period meter remained non functional or defective shall be adjusted in this bill. The assessment bill shall be raised within two billing cycles from the date of changing the meter.
ii) In cases where the recorded consumption of past twelve months prior to the date meter became defective is either not available or partially available, the consumption pattern for the next twelve months after the installation of new meter would be used for billing purposes.
iii) In case, the Maximum Demand Indicator (MDI) of the meter at the consumer's installation is found to be faulty or not recording at all (unless tampered), the demand charges shall be calculated based on maximum demand during corresponding months/billing cycle of previous year, when the meter was functional and recording correctly. In case, the recorded MDI of corresponding month/billing cycle of past years is also not available, the average maximum demand recorded for the next six billing cycles after changing the meter shall be considered."
The aforesaid guidelines to my mind should have been CS No. 1408/16 Page No. 14/21 the basis of raising the bill as the meter was found to be burnt and the meter testing report has categorically pointed out that the reason of high MDI could be magnetic interference.
8.5 Guideline 43 enjoins the defendant to carry out an assessment on the basis of consumption pattern for preceding twelve months or twelve months post installation of a new meter. The assessment bill also requires to be raised within two billing cycles from the date of changing the meter.
8.6 I only reiterate that guideline 40 para b also makes it apparent that if meter is found to be tampered then in such a scenario the consumer shall bear the cost of procuring and installing of a new meter. Same is for the reason that the loss of the device recording the meter is on account of the culpability of the consumer. Now it is the case of the plaintiff and admitted by the defendant in the WS that the electricity meter was changed without there being any such payment made by the plaintiff.
9. Coming to the second question as to what is the effect of the plaintiff paying the bill or as to whether the plaintiff is estopped for making any claim in the present suit after having paid the entire bill. Qua the said aspect in my opinion there is nothing on record to substantiate the fact that plaintiff had either accepted the bill to be correct or accepted the correctness of the stand of the defendant or CS No. 1408/16 Page No. 15/21 otherwise in any manner yielded to the demands of the defendants. Estoppel is only when there is a conscious acceptance of the claim of the opposite party and thereafter the one party tries to wriggle out from the said position. The plaintiff was throughout protesting/writing letter as to the bill being incorrect. The plaintiff had also written a letter to the defendant protesting increase of load which was received on 13.10.2014 by the defendant. The said letter is also important and reads as under :-
To The DGM BSES - Radhu Place Delhi-110092.
Subject :- Wrong revision of load from 16 KW to 50 KW/correction in the Bill Dear Sir As per today discussion with you This is to inform you that we have a sanction load of 16 KW for our office located at 304, roots tower, Laxmi Nagar Distt. Center, Delhi-
110092. We have received the bill for 50 KW from the month of July 2014 as per our uses this is very high after this we were visit in your office regarding this matter and discuss with Mr. Arvind they written a complaint regarding meter testing on the testing of meter is found in burnt position then he say that this load is increased due to burn of meter we will correct this in the next bill cycle and we have to pay CS No. 1408/16 Page No. 16/21 Rs. 1,50,000/- average basis. After changing the meter we received the next month bill and load is also same i.e. 50 KW.
As per today discussion we have to ready to pay Rs. 30,000/- but we request you to kindly amend and correct my bill as soon as earlier after that if there is any due then we have ready to pay.
Thank you For KR Pulp and Papers ltd.
(Authorised signatory) 9.1 This was followed up by a legal notice dated 12.01.2015 Ex. P-7 in which again the plaintiff had highlighted the grievance and further sought rectification of the earlier bills as well as decrease of load as well as monetary compensation. The payment of Rs. 2,57,410/- was made subsequent thereto i.e. on 03.02.2015. Thus, it is not that plaintiff company was mum or in any manner not protesting or had accepted the case of the plaintiff.
9.2 Further I fail to understand what prevented the defendant from acting on its own and deal with the case of the plaintiff by raising an assessment bill in accordance with guideline no. 40 and 43 of DERC Supply Guidelines. May be the consumer is unaware but the statutory obligation is upon the defendant to act in accordance with law. The payment of the disputed amount does not mean CS No. 1408/16 Page No. 17/21 extinguishment of the claim of the plaintiff or otherwise legitimizes the acts of the defendant. An onerous responsibility is casted upon the defendant company and they have failed to act in accordance with the DERC Supply Guidelines or they have breached the statutory obligations for which in my opinion a corrective action is required and plaintiff is entitled to a decree of mandatory injunction.
9.3 I have also broached upon the aspect as to whether the plaintiff was supposed to file a suit for declaration or a simple relief for injunction shall suffice. In my opinion for the said purpose reference can be made to the judgment of Sarjiwan Singh v/s DVB 110 (2004) DLT 633 "6. In the present cases the Defendant has raised electricity bills. There may be instances where on a bare perusal of the facts before the Court, either contained in the plaint or in the Written Statement, and the documents placed by the parties, the preponderant position is what is stated in the plaint. It is not expected of the Court to proceed on any other avenues. Let us assume that a bill is raised in respect of consumption for a particular period for which payment has already been made.
Would it still be necessary for the plaintiff to seek a declaration? The answer must be in the negative."
CS No. 1408/16 Page No. 18/21The aforesaid observation squarely applies to the present case. There is evidence to the fact that the meter was burnt
- defendant squarely admits the same. There is a statutory obligation upon them to deal the case under guideline 40 and 43 of the DERC supply guidelines, the defendant miserably fails to do so and adding agony to the wounds have chosen to rely on the corrupted data to foist an illegal bill upon the plaintiff whereafter the plaintiff is also made to pay the same to avoid disconnection of electricity supply which is an essential commodity and without which in today's world it is difficult to survive. Thus, in my view there was no need to seek any relief of declaration or otherwise pay ad-valorem Court fees as it is not a disputed claim or a claim which has legs to stand upon and can be discerned from the documents of the defendant.
10. Coming to the decree of injunction to reduce the load from 50 KW to 16 KW, it has come on record in the testimony of DW- 1 that the MDI had not increased beyond 21 KW. As such, in my opinion the plaintiff can seek reduction of load and there is no need for any specific direction as the defendant is bound to increase or decease the load keeping in view the span period/base period to calculate the MDI. Ends of justice would be met if the defendant company, on the basis of the orders passed by this Court and taking into account the consumption pattern of the plaintiff company since the last one year reduce the load on its own. Needful be done within CS No. 1408/16 Page No. 19/21 a period of six weeks from today. The security money or deposit be adjusted in future consumption bills.
10.1 Coming on the aspect of damages, there is nothing on record to sustain the claim of the plaintiff that they are entitled to Rs. 5 lacs as damages or compensation from the defendants. Needless to state that damages or compensation can be given on cogent basis or upon evidence led whereupon first of all the plaintiff should make out a case that the plaintiff company suffered such a loss on account of the illegal acts of the defendant. There is no such evidence except a bald plea.
10.2 The upshot of the aforesaid discussion is that the issue no.1 and 2 are decided in favour of the plaintiff and the defendant company is directed to prepare an assessment bill and calculate accordingly. A decree of mandatory inunction is passed in favour of the plaintiff whereby the defendant company is directed to calculate the bill afresh of the disputed period. The amount which defendant company requires to refund after giving adjustment of the amount paid earlier the same be adjusted/roll over in future consumption bills. However, the plaintiff be informed about the assessment bill and the amount which the plaintiff would be entitled to get back or about the defendant returning the same. The same be done within a period of six weeks from today.
Issue no.3 however, is decided adverse the plaintiff. The CS No. 1408/16 Page No. 20/21 claim of compensation or damages stands dismissed.
11. With the aforesaid observation the suit of the plaintiff is decreed to the extent as indicated herein above. No order as to cost.
Decree sheet be prepared accordingly. File be consigned to Record Room.
Pronounced in open Court (Sumit Dass )
on 06.05.2019 Additional District Judge-02,
East District, Karkardooma Courts
Delhi
CS No. 1408/16 Page No. 21/21