Delhi District Court
Om Prakash vs Tata Power Delhi Distribution ... on 28 March, 2022
IN THE COURT OF MS. NEHA GARG
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
CNR No:DLCT030079022017
CS SCJ No:3679/2017
Om Prakash
S/o Phagni Ram
H. No.156, Ground Floor,
Ambedkar Park Wali Gali,
Nehru Kutia, Malka Ganj,
Delhi110007. ...........Plaintiff
Versus
Tata Power Delhi Distribution Ltd(TPDDL)
Regd. Off. NDPL House, Hudson Lines,
Kingsway Camp, Delhi110009
Through its General Manager/CEO. ............. Defendant
Date of institution of suit : 08.12.2017
Date on which judgment was reserved : 09.03.2022
Date of pronouncement of Judgment : 28.03.2022
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. The present suit was filed on 08.12.2017 for permanent and mandatory injunction. The brief facts of the case are that plaintiff is a CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 1 of 20 permanent resident of the above said address and is having an electric connection CA No. 60020043281 installed at his house energizing the house of the plaintiff at Ground Floor. That the plaintiff is regularly paying the bills as per consumption raised by the defendant from time to time. That the defendant simultaneously mentioning the exorbitant amount of Rs. 2,86,360/ as mentioned in the bill dated 05.10.2017. That the plaintiff has paid the said bill as well, which indicated the consumption of the current month in the said bill as Rs. 643.03/(Rs. 643/) which has been accepted by the defendant. That the said outstanding has been Rs. 2,82,990/ and the plaintiff had written letter to the District Manager requesting them to correct the bill, but to no avail. That plaintiff has also sent a legal notice dated 13.10.2017 which was duly received in the office of the defendant but the same could not yield any result. That the said amount is still shown in the bill mentioned above.
2. That since December 2015, when the electricity connection in question was installed in the property of the plaintiff there was new connection installed on 02.12.2015 on a meter installation Service Order Form of even date. That no balance of amount was shown in the said property. That the electricity connection was installed on 05.12.2015 and the receipt in this behalf is filed on record of this case. That there is constant error in the accounts of the defendant which they are trying to recover CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 2 of 20 against the plaintiff and did not desist despite service of legal notice and since no amount is due or payable the defendant accepted the consumption charges of the plaintiff as shown in the bill of the different dates every month. That nothing is due against the plaintiff either for consumption or for any reason whatsoever. That the defendant came in control of the said electricity connection much latter to the installation of the said electricity connection and since there was nothing in their possession in the name of the plaintiff they hesitant to delete the said balance from the bill of the plaintiff. That amount of Rs. 2,82,990/ has swelled to Rs.2,86,360/ as has been shown in the bill, and the plaintiff has submitted to the defendant that he is not under debts of the defendant and nothing is payable by the plaintiff and they should delete the said balance as has been shown by mistake against the plaintiff. That defendants are not ready to go through their records to tally the consumption of the plaintiff with regard to electricity. That after the receipt of the legal notice, defendant sent its workers and persons working on its behalf on 25.11.2017 and they threatened to use coercive measures for recovery of said amount and threatened to recover the said amount by forcible means. Hence, the present suit.
3. Summons of the suit were issued to the defendant by the Ld. Predecessor of this court upon which the defendant had put appearance through counsel.
CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 3 of 204. Written statement was filed on behalf of defendant wherein it is stated that the present suit is not maintainable on the following grounds: that in view of the provisions of the Electricity Act 2003 as per Section 42(5), since the plaintiff has disputed the billing demand. That this court has no jurisdiction to entertain and try the present suit involving billing demand/dispute. That plaintiff has not approached the Hon'ble Court with clean hands and hence is not entitled to any relief. That the premises of plaintiff was inspected by officials of the defendant on 11.07.2017 where plaintiff was found supplying electricity from his active electricity connection bearing CA No. 60020043281 to inactive electricity connection bearing CA No. 60010400277 registered in the name of Hari Ram, who was tenant under plaintiff's father Mr. Phagani Ram and NOC was issued in his favour by plaintiff's father when he applied for new connection. That vide notice dated 12.08.2017 plaintiff was informed to stop supplying electricity to inactive CA No. 60010400277 and he was duly intimated that on his failure to do so, the pending electricity dues of the same shall be transferred to his active CA No. 600200743281. That on 24.08.2017, premises of plaintiff was again inspected by officials of defendant whereby plaintiff was found continuing supplying electricity to inactive CA No. 60010400277. That pursuant to this, vide intimation letter dt. 25.08.2017, dues of inactive CA No. 60010400277 were transferred to active CA No. 60020043281. That CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 4 of 20 total dues, amounting to Rs. 2,81,598/ (Pr: Rs. 2,09,007/ and LPSC Rs. 72591/), were transferred to plaintiff's electricity connection. That electricity supply of plaintiff electricity connection is temporarily disconnected since 14.12.2017. That the present suit for simplicitor injunction without seeking declaration qua the impugned bill is not maintainable and is barred by Section 41(h) of Specific Relief Act. That the suit of the plaintiff is liable to be dismissed on this ground alone. That present suit is liable to be dismissed as the plaintiff has undervalued the suit for the purpose of the court fees and jurisdiction.
5. In reply on merits, it is denied that plaintiff is regularly paying the electricity bills. That plaintiff has not provided CA No. of the connection installed on 02.12.2017 and in the absence of same, this fact cannot be rebutted by defendant. That plaintiff was duly informed vide letter dt. 25.08.2017 about dues transfer of inactive electricity connection bearing CA No. 60010400277 to electricity connection of plaintiff. That employees of defendant never threatened the plaintiff and the same is only figment of his imagination.
6. Replication was filed on behalf of plaintiff wherein contents of the written statement filed on behalf of defendant were denied and averments made in the plaint were reaffirmed.
CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 5 of 207. That following issues were framed vide order dated 01.08.2018 by Ld. Predecessor of this Court:
1. Whether the plaintiff is entitled for relief of permanent and mandatory injunction thereby restraining the defendants from recovery of Rs. 2,82,990/ and directing the defendant to withdraw the demand/bill of the outstanding amount? OPP
2. Whether the suit is barred under section 42(5) of the Electricity Act, 2003 OPD
3. Whether the suit is properly valued for the purposes of court fees? OPP
4. Relief.
Evidence:
8. Thereafter the matter was listed for plaintiff's evidence.
In order to prove the present case the following witnesses were examined on behalf of plaintiffs:
(i) Plaintiff was examined was PW1. PW1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents: Ex.PW1/1 : Meter installation service order form dated 02.12.2015.
Ex.PW1/2 : Letter dated 21.09.2017.
CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 6 of 20
Ex.PW1/3 : Electricity Bill dated 05.10.2017.
Ex.PW1/4 : Letter dated 06.10.2017.
Ex.PW1/5 : Legal Demand Notice dated 13.10.2017.
Ex.PW1/6 : Reminder to the said notice dated 15.11.2017.
Ex.PW1/7 : Assessment order No. 198796.
(ii) Sh. Jwala Singh was examined as PW2. PW2 tendered his evidence by way of affidavit Ex.PW2/A. Both these witnesses were duly cross examined and discharged.
9. Thereafter the plaintiff evidence was closed vide Order dated 19.02.2019 upon separate statement of plaintiff recorded in this regard and the matter was listed for defendant's evidence.
10. It is pertinent to mention that vide order dated 29.11.2021 application u/S 151 CPC was allowed subject to cost and therefore PW1 was recalled and reexamined in additional evidence vide order dated 29.11.2021. However, PW1 was not cross examined on additional evidence and thereafter additional evidence was closed vide order dated 29.11.2021.
11. In defendant's evidence, following witnesses were examined:
(i) Sh. Patanjali Soti was examined as DW1. DW1 tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents: CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 7 of 20 Ex.DW1/1 : Inspection report dt. 11.07.2017.
Ex.DW1/2 : Inspection report dt. 24.08.2017.
(ii) Sh. Naresh Kumar was examined as DW2. DW2 tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents: Ex.DW2/1 : Computerized Notice dated 12.08.2017.
Ex.DW2/2 : Postal Receipt.
Ex.DW2/3 : Notice.
Ex.DW2/4 : Postal Receipt.
Ex.DW2/5 : Certificate u/S 65B of Indian Evidence Act.
DW1 & DW2 were duly examined and discharged.
12. Thereafter, defendant's evidence was closed vide Order dated 19.09.2019 upon separate statement of Ld. Counsel for defendant recorded to this effect and the matter was listed for final arguments.
13. Final Arguments advanced on behalf of defendants were heard at length and the record is carefully perused by this court.
Issuewise Findings : Issue No1:Whether the plaintiff is entitled for relief of permanent and mandatory injunction thereby restraining the defendants from recovery of Rs. 2,82,990/ and directing the defendant to withdraw the demand/bill of CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 8 of 20 the outstanding amount?OPP
14. The burden to prove the present issue is cast on plaintiff. It is the case of plaintiff that he is permanent resident of House No. 156, Ground Floor, Ambedkar Park Wali Gali, Nehru Kutia, Malka Ganj, Delhi110007 (herein after referred to as 'the suit property') and is having electricity connection bearing CA No. 60020043281 installed at his premises. That he has been regularly paying the bills of electricity charges as raised by defendant. That defendant has raised a bill dated 05.10.2017 i.e., Mark B, in the name of plaintiff, in respect of the aforesaid CA number thereby showing an outstanding amount of Rs. 2,82,990/. That as per bill exhibited Mark B, the consumption for the current month was of Rs. 643/. That plaintiff had approached the officials of defendant and requested them to rectify the said bill upon which the officials of defendant had directed the plaintiff to pay the current demand and had assured the plaintiff that the bill in question will be rectified. That thereafter, repeated requests and reminders were sent to officials of defendant thereby requesting him to rectify the bill dated 05.10.2017, however, to no avail. That a legal notice dated 13.10.2017 was also sent to defendant to rectify the bill in question. That despite receipt of legal notice, officials of defendant have failed to do the needful.
15. It is the case of plaintiff that the connection bearing CA No. 60020043281 was installed in the premises of plaintiff on 02.12.2015 and at CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 9 of 20 no point of time any outstanding amount was ever shown in any of the bills raised by the defendant. That despite repeated requests and reminders of plaintiff, officials of defendant have failed to rectify the bill in question.
16. Per contra, it is the case of defendant that the premises of plaintiff was inspected by officials of defendant on 11.07.2017 and plaintiff was found supplying electricity from his active electricity connection bearing CA No. 60020043281 to inactive electricity connection bearing CA No. 60010400277 registered in the name of Hari Ram. That Hari Ram was a tenant under plaintiff's father Mr. Phagani Ram and NOC was issued in his name by plaintiff's father when he applied for new connection. That premises of plaintiff was again inspected on 24.08.2017 by the officials of defendant and plaintiff was continued found supplying electricity from his active electricity connection bearing CA No. 60020043281 to inactive electricity connection bearing CA No. 60010400277 registered in the name of Hari Ram. That thereafter, vide intimation letter dated 25.08.2017, dues of inactive CA No. 60010400277 were transferred to active CA No. 60020043281. That total dues amounting to Rs. 2,81,598/ (including principal amount of Rs. 2,09,007/ and LPSC of Rs. 72,591/) were transferred to plaintiff's electricity connection.
17. During the course of final arguments, Ld. Counsel for the plaintiff has CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 10 of 20 argued that CA No. 60010400277 in the name of Sh. Hari Ram was installed on the ground floor before installation of electricity connection bearing CA No. 60020043281 in the name of plaintiff. That there were total nine electricity connections installed in property bearing No. 156, Nehru Kutia, Malka Ganj, Delhi. That in August, 2015, oral family settlement was arrived between the plaintiff and his brothers and as per family settlement, a portion measuring 30 sq yards came in the share of plaintiff and he applied for two electricity meters in his name, in respect of the portion that came in his share. That defendant had issued dues intimation letter dated 26.10.2015 wherein it was mentioned that there were some dues pending on CA No. 60012089516, CA No. 60018289078 and CA No. 60006325223 and after deposit of dues, application for new electricity meter shall be entertained by the defendant/TPDDL. That thereafter, plaintiff had deposited the dues and defendant has installed CA No. 60020043281 on 05.12.2015 in the suit property. That the 30 square yards portion situated on ground floor which is in occupation of the plaintiff, was earlier in the possession of Rajender Prasad till August, 2015. That Rajender Prasad was running factory with his son Durgesh Kumar and they were taking connection from Hari Ram's electricity connection bearing CA No. 60010400277. That in the year 2015, Durgesh Kumar received electricity bill in respect of CA No. 60010400277 of Rs. 2,08,890/ which belonged to Hari Ram(tenant). That due to non payment of the bill amount, the said connection in the name of Hari Ram CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 11 of 20 was disconnected by defendant/TPDDL. That Durgesh Kumar (user of CA No. 60010400277) had moved an application before Permanent Lok Adalat, Delhi, wherein he admitted that he is the user of CA No.60010400277 and that he is liable towards the dues pending on CA No.60010400277. That vide order dated 21.12.2015, of Permanent Lok Adalat, the matter was settled and Sh. Durgesh Kumar was directed to pay a sum of Rs. 1,39,000/. That Sh. Durgesh Kumar never complied with the award of Lok Adalat dated 21.12.2015. That thereafter defendant has issued a show cause notice dated 25.07.2015 to Hari Ram and Rajender Prasad, thereby demanding payment of dues. That Durgesh Kumar had also issued cheque bearing No. 162677 dated 28.07.2015 to pay dues of CA No.60010400277 and that the said cheque was bounced due to insufficient amount. That these facts clearly establish that electricity connection bearing CA No.60010400277 of Sh. Hari Ram was being used by Durgesh Kumar S/o Rajender Kumar.
18. It is pertinent to mention here that aforesaid facts were never pleaded by the plaintiff in his plaint and it is trite law that Court cannot travel beyond the pleadings of the parties. Therefore, the limited question that arises for consideration before this Court is the validity of act of defendant in transferring the dues in respect of inactive CA No.60010400277 to the active electricity connection of plaintiff bearing CA No. 60020043281.
CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 12 of 2019. Defendant has examined the Field Executive (RRG) as DW1, who has relied on Inspection Report dated 11.07.2017 and the same is Ex.PW1/D2. DW1 has deposed in his affidavit of evidence Ex.DW1/A that he along with other officials of defendant inspected the premises of plaintiff on 11.07.2017 and 24.08.2017. Whereas in his cross examination, DW1 has deposed that he visited the premises of plaintiff all alone, which is a material contradiction to affidavit of evidence Ex.PW1/A. A bare perusal of document Ex.PW1/D2 reveals that the same does not even mention the name of the inspecting officer who conducted the alleged site verification and prepared the report Ex.PW1/D2. The site verification report Ex.PW1/D2 provides that CA No.60010400277 has been removed and that electricity is being supplied to CA No.60010400277 from CA No. 60020043281, which is in the name of consumer Om Prakash, S/o Phangi Ram. DW1 has admitted in his cross examination that he cannot tell the name of the persons and other residents from whom he inquired about the supply of electricity by plaintiff to Sh. Hari Ram. It is worth mentioning that defendant has not filed on record any electricity bill in the name of Sh. Hari Ram who is also stated to be resident of House No. 156, Nehru Kutia, Malka Ganj, Delhi110007 in site verification report Ex.PW1/D2. No photograph was ever taken by the inspecting team at the site. No independent witness was sited to site verification report Ex.PW1/D2. Therefore, defendant has failed to prove the site verification report Ex.PW1/D2 in pursuance of which the electricity CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 13 of 20 dues in respect of CA No.60010400277 were transferred to the electricity connection of plaintiff.
20. At this juncture, it is pertinent to note the Regulation No. 49 of Delhi Electricity Regulatory Commission Supply Code and Performance Standards Regulations, 2007 (hereinafter referred to as 'the Code'), which has been cited by the defendant in intimation letter dated 25.08.2017(Ex.DW2/3) vide which the pending dues in respect of CA No.60010400277 were transferred to electricity connection bearing CA No. 60020043281, of plaintiff. Regulation 49 of the Code reads as follows: "49. Disconnection on the nonpayment of the licensees dues:
(i)The licensee may issue a disconnection notice in writing, as per Section 56 of the Act, to the consumer, who defaults on his payment of dues giving him fifteen clear days to pay the dues. Thereafter, the licensee may disconnect the consumer's installation on expiry of the said notice period by removing the service line/meter or as the licensee may deem fit. If the consumer does not make the payment, within six months of the date of disconnection, such connections shall be treated as Dormant Connection.
(ii)The licensee may take steps to prevent unautherised reconnection of such consumers disconnection in the manner as mentioned above. Wherever licensee discovers that connection has been reconnected CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 14 of 20 unauthoirsedly, licensee may initiate action as per provisions of Section 138 of the Act. Further, in case licensee discovers that supply to such premises has been restored through another live connection, notice to registered consumer/user of such live connection shall be given to stop such illegal supply immediately, failing which pending dues of disconnected connection shall be transferred to this account and non payment of such transferred dues may be dealt as per the sub regulation(i) above."
21. Thus, it is clear that the licensee/defendant is required to issue a notice to stop illegal supply of electricity to registered consumer/user of live connection in case the licensee discovers that the supply to a disconnected/inactive connection has been restored by such registered consumer/user. It is only after a notice to stop such illegal supply has been issued to the registered consumer/user that the pending dues of the disconnected connection shall be transferred to the registered consumer/user. Defendant has relied on notice dated 12.08.2017 (Ex.DW2/1) accompanied by postal receipt (Mark A) to show that defendant has complied with Regulation 49 of the Code. Section 27 of The General Clauses Act, 1897 provides that where any regulation authorises or requires any document to be served by post, whether the expression "serve" or either CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 15 of 20 of the expressions "give" or "sent" or any other expression is used, then, unless a different intention appears the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. However, in the present case, the defendant has not placed on record the original of the postal receipt, vide which notice dated 12.08.2017 was issued to plaintiff. Therefore, no presumption of due service of notice dated 12.08.2017 as required under Regulation 49 of the Code can be raised. It is clear that defendant has failed to comply with Regulation 49 of the Code and hence, the transfer of electricity dues of inactive connection bearing CA No.60010400277 to the electricity connection of plaintiff bearing CA No. 60020043281 is illegal and unlawful.
22. In view of the aforesaid discussion, the present issue is decided in favour of the plaintiff and against the defendant. Defendant is restrained from recovering the amount of Rs. 2,82,990/, which is reflected in the bill dated 05.10.2017 (Mark B) from plaintiff. Defendant is further directed to withdraw the demand to the tune of Rs. 2,82,990/ as reflected in the bill dated 05.10.2017 (Mark B).
CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 16 of 20Issue No2: Whether the suit is barred under section 42(5) of the Electricity Act, 2003?OPD
23. The burden to prove the present issue was cast on defendant. Section 42(5) of the Electricity Act, 2003 envisages the establishment of a Forum for redressal of grievance of consumer.
24. Section 9 of CPC confers power on the Civil Court to try all the suits of civil nature, except which are expressly or impliedly barred. Implication is an indirect method of ousting the jurisdiction of Civil Court. In such a case, the provision which oust the jurisdiction of Civil Court must provide for a mechanism to adjudicate such disputes. The cumulative effect of the statutory provision should provide for adequate remedy on power with the jurisdiction of the Civil Court. It is no longer resintegra that exclusion of jurisdiction of Civil Court must be construed very strictly.
25. The interpretation of Section 42(5) of the Electricity Act, 2003 by the various judgments of the Superior Courts reveals that Civil Suits have been held to be barred by Section 42(5) of the Electricity Act, 2003 where a consumer has raised dispute regarding the electricity bill. In such cases it is settled law that all dispute regarding electricity bills firstly goes before the appropriate Forum provided in Section 42(5) of the Electricity Act, 2003 and thereafter an appeal from the said order of the Forum lies before the CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 17 of 20 Ombudsman under Section 42(6) of the Electricity Act.
26. It is pertinent to mention here that the present suit is not a suit for declaration whereby plaintiff has challenged the bill dated 05.10.2017 on the ground that same is exorbitant or the same has been raised on incorrect reading etc. Present suit is not filed for declaration of electricity bill dated 05.10.2017 as null and void. However, in the present suit plaintiff has challenged the unlawful act of defendant whereby electricity dues of another electricity meter were transferred to the connection of plaintiff. Therefore, defendant has failed to prove as to how the bar of Section 42(5) of the Electricity Act, 2003 is attracted. Defendant has not led any evidence to discharge its onus of proving the present issue.
27. Accordingly, the present issue is decided against the defendant and in favour of the plaintiff.
Issue No3: Whether the suit is properly valued for the purposes of court fees?OPP
28. Though the present issue is framed as OPP, however, the burden to prove the present issue is on defendant as defendant has taken a preliminary objection in its written statement that the present suit has been incorrectly valued for the purposes of court fees. Accordingly, the burden to prove the CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 18 of 20 present issue is to be discharged by the defendant.
29. The present suit is for permanent and mandatory injunction whereby plaintiff has prayed that defendant be restrained from recovering the amount of Rs. 2,82,990/ and that further direction be issued to defendant to withdraw the demand/bill to the tune of Rs. 2,82,990/. Section 7(iv)(d) of the Court Fees Act, 1870 provides that in a suit to obtain an injunction, plaintiff is entitled to put his own valuation. Furthermore, the Punjab government has amended the Court Fees Act,1870 by inserting the proviso in clause (iv) of the Court Fees Act, 1870, which provides that the Court Fees cannot be less than Rs. 13/ and the aforesaid amendment has been extended by Central Government to Delhi vide Punjab Amendment Act, XXVI of 1949. As per para 13 of the plaint, the value of the suit is fixed at Rs. 130/ for each relief of injunction and accordingly court fees has been paid. For the sake of repetition, it is again reiterated that present suit is not filed for declaration of electricity bill dated 05.10.2017 as null and void. However, in the present suit plaintiff has challenged the unlawful act of defendant whereby electricity dues of another electricity meter were transferred to the connection of plaintiff. Therefore, defendant has failed to prove how the present suit has not been correctly valued for the purpose of Court Fees.
CS SCJ No:3679/2017 Om Prakash vs TPDDL Page 19 of 2030. Accordingly, the present issue is decided against the defendant and in favour of the plaintiff.
Relief:
31. In view of the aforesaid discussion, the present suit is decreed in favour of plaintiff and against the defendant in following terms: Defendant is restrained from recovering the amount of Rs. 2,82,990/, which is reflected in the bill dated 05.10.2017 from plaintiff. Defendant is further directed to withdraw the demand to the tune of Rs. 2,82,990/ as reflected in the bill dated 05.10.2017.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Announced in the open Court (NEHA GARG)
on this 28.03.2022 Civil Judge01/Central
Tis Hazari Courts/Delhi
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