Delhi District Court
Sh. Radhey Shyam Sharma vs Bses Yamuna Power Limited on 1 October, 2007
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IN THE COURT OF SMT. PINKI ADDITIONAL
DISTRICT JUDGE DELHI
RCA NO. 90/05
IN THE MATTER OF:
SH. RADHEY SHYAM SHARMA,
PROP. M/S SHARMA OPTICALS,
1/10518, MOHAN PARK,
SHIV MANDIR MARG,
SHAHDARA,
DELHI - 110032 .....APPELLANT
VERSUS
1. BSES YAMUNA POWER LIMITED
THROUGH CEO,
SHAKTI KIRAN BUILDING,
KARKARDOOMA,
DELHI
2. MUNICIPAL CORPORATION OF DELHI
THROUGH COMMISSIONER,
TOWN HALL,
DELHI - 110006 .....RESPONDENTS
DATE OF INSTITUTION: 23.05.2005
DATE OF RESERVING THE ORDER: 24.09.2007
DATE OR ORDER: 01.10.2007
Contd..........
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ORDER
1. Aggrieved by order of dismissal of the suit dated 16.04.2005 passed by Ld. Civil Judge the present appeal has been filed by appellant/plaintiff on 23.05.2005.
2. I have heard Sh. Vinod Sharma, Advocate Ld. counsel for appellant/plaintiff and Sh. Rarry Mangstbam, Advocate Ld. counsel for respondent/defendant and carefully perused the record. I have also carefully perused the impugned judgement as well as the trial court record. I have given my considerable thought to the submissions putforth by learned counsel for parties.
3. The appellant/plaintiff has prayed for the following relief in the main suit filed on 02.11.2001 which was registered as suit no. 570/01 and later on as suit no. 1027/04: -
''It is, therefore, most respectfully prayed that the Hon'ble court may be pleased to pass a decree for Mandatory injunction in favour of the plaintiff and Contd..........-3-
against the defendants directing them to delete the misuse charges, LPF and surcharge and refund the charges, which have been illegally received by them towards the LPF, misuse and surcharge @ 20% against connection bearing K No. 611- 1377620/IP/IS installed in premises no. 1/10518, Mohan Park, Shiv Mandir Marg, Shahdara, Delhi-110032 as per the orders dated 06.09.1998 and 05.05.2001 passed by Bijli Adalat.''
4. The appellant has prayed for decree of the suit as per the prayer clause of the plaint/suit. Ld. counsel for appellant has submitted that relief in the suit is for compliance of orders dated 6.9.1998 and 5.5.2001 passed by Bijli Adalat. He has submitted that despite efforts the department is not complying with these orders, that was the reason that he has to approach the court by way of this suit. It has further been submitted that appellant is not claiming recovery. Appellant is only claiming enforcement of orders of Bijli Adalt. It has been submitted that reinspection was carried out on 31.03.2000 vide Ex. PW- 1/6. During the course of arguments Ld. counsel for appellant/plaintiff has further submitted that a sum Contd..........
-4-of Rs. 1,36,872/- has to be refunded by the respondent which has been communicated to respondent/plaintiff for the purpose of settlement also.
5. Ld. counsel for respondent has submitted that as per para 12 of the plaint the cause of action for filing the suit arose when the plaintiff demanded refund of LPF, misuse charges and 20% surcharge against shunt capacitors which have been illegally charged by them. He has submitted that plaintiff is seeking relief of particular refund i.e. monetory relief. Plaintiff was bound to seek relief of declaration and affix court fee. Court can grant relief only when specific relief has been sought. In this case no specific amount has been mentioned. He has further submitted that appellant/plaintiff has made the payment and after making the payment he went to bijli adalat without any objection for making payment and the area in which plaintiff was running his business was non confirming area and premises was sealed. He has further submitted that order dated 05.05.2001 is not on record and order dated Contd..........
-5-06.09.1998 is not the final order. It is even before the date of inspection. Appellant/plaintiff had already paid the amount and now he is seeking refund of the same without seeking declaration. The specific amount has not been mentioned for which he is seeking refund. He has not challenged the bill. Bijli Adalat is for the purpose of settlement. It was never appealable order for recovery of the amount. No court fee has been affixed. It is actually relief of recovery of amount which the appellant/plaintiff had sought in the main suit.
6. As per the record the following issues were framed vide order dated 04.04.2007 passed by Ld. Civil Judge: -
1. Whether the plaintiff is entitled to the relief of mandatory injunction as claimed? OPP
2. Relief
7. While deciding issue no. 1 the Ld. Trial Court has mentioned in para 14 of the impugned judgement that:
Contd..........-6-
''Vide this suit, plaintiff is seeking the refund of LPF, misuse charges and 20% surcharge against the shunt capacitor which plaintiff has alleged charged illegally from the plaintiff. Plaintiff has not mentioned in his entire plaint as well in his prayer clause what amount he has deposited with the defendant and which amount he wants to refund. In the present suit, plaintiff is seeking the refund of LPF, misuse charges and surcharge 20% against connection vide K. No. 611-1377620/IP/IS as per order dated 06.09.1998 passed by Bijli Adalat. Section 41(H) of Specific Relief Act says as : an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust. In the present suit, plaintiff is seeking the refund of alleged amount which plaintiff has not mentioned in his entire plaint, from the defendant in the mandatory form. Plaintiff has efficacious remedy to file the suit for recovery against the defendant. Plaintiff has not mentioned anywhere in his plaint what amount, he wants to refund. Hence, it is my considered view that the relief of mandatory injunction cannot be granted to the plaintiff. Prayer of plaintiff is vague because no amount has been mentioned Contd..........-7-
therein and plaintiff has efficacious remedy of recovery. This issue is decided in favour of defendant and against the plaintiff.''
8. After carefully perusing the record and the plaint it is clear that Radhey Shyam Sharma is the plaintiff who has singed and verified the plaint and has executed Power of Attorney Ex. PW- 1/1 in favour of PW 1 Sh. Sri Om Sharma. Plaintiff has not come into the witness box and Sri Om Sharma has filed affidavit and came to the witness box for the purpose of cross examination. He has deposed that he had executed vakaltanma and plaint for filing the suit and engaged the counsel Sh. Vinod Sharma but the record reveals that the vakalatnama has been singed by Sh. Radhey Shyam Sharma and plaint has been signed and verified by Sh. Radhey Shyam Sharma the attorney has been executed on 21.12.2001.
9. I rely on following authorities: -
(i) Janki Vashdeo Bhojwani Vs Indusind Bank Ltd.
AIR 2005 SC 439 Contd..........
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(ii) Birla D/w Ltd. V/s Prem Engineering Works reported as 1999 I AD (Delhi) 379
(iii) Susanne Lenatz V/s International Hotels Ltd., 2005 (125) DLT 498 : 2005 (85) DRJ 521
(iv) Syndicate Bank V/s M/s S.A. Trading Corpn. & Others, 1990 (3) Delhi Lawyers 356
(v) Vidhyadhar V/s Manikrao & Another (1999) 3 Supreme Court Cases 573
(vi) Taraji Khim Chand V/s Yalamati Satyam AIR 1971 SC 1865
(vii) M/s. Sudhir Engineering Company V/s M/s. Nitco Roadways Ltd.
1995 II AD (Delhi) 189
(viii) Rite Approach Group Ltd. V/s Rosoboronexport 139 (2007) DELHI LAW TIMES 55 (DB)
(ix) Kamla Rani & Ors. V/s Texmaco Ltd.
139 (2007) DELHI LAW TIMES 61
(x) Sukhwinder Pal Bipan Kumar V/s State of Punjab (1982) 1 SCC 31
10. Section 85 of Indian Evidence Act 1872 :
Presumption as to power -of -attorney:
The Court shall presume that every document purporting to be a power -of-attorney, and to have been executed before Contd..........-9-
and authenticated by, a Notary Public or any Court, Judge, Magistrate, (Indian) Consul or Vice Consul, or representative of the Central Government was so executed and Authenticated.
Section 101 of Indian Evidence Act 1872:
Burden of proof :
Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Order VI Rule 14 Code of Civil Procedure, 1908 Pleading to be signed: Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
Contd..........
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11. The Apex Court in the following judgement has discussed regarding power of attorney.
In Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd (Supra) Honble Mr. Justice D.M. Dharmadhikari & Hon'ble Mr. Justice H.K. Sema vide Para 13 of this judement held that :-
''OrderIII Rules 1 & 2 ,CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC ,confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words , if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the Contd..........
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matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- examined."
12. Vide para 15 of this judgement it has been discussed that :-
"Apart from what has been stated, this Court in the case of Vidhyadhr Vs. Manikrao and another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness box and states his own case on oath and does not, offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct."
13. Vide para 17 it has been observed that :-
" On the question of power of attorney the High Courts have divergent views. In the case of Shambu Dutt Shastri Vs. State of Rajsthan 1986 (2) WLL 713 it was held:
that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on Contd..........
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behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself 'To appear' in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."
14. Vide para 18 of this judgement it was held that:-
"The aforesaid judgement was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj. 185 . It was held that the word "acts"
used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC."
Contd..........
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15. Vide para 21 of this judgement it was held that:-
"We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (Supra) followed and reiterated in the case of Ram Prasad (Supra) is the correct view. The view taken in the case of Floriano Armando Lut's 2002(2) Bombay CR 754 cannot be said to have laid down a correct law and is accordingly overruled."
16. Our own High Court has discussed regarding Section 85 of Indian Evidence Act 1872 with regard to presumption as to power of attorney.
17. Hon'ble Mr Justice Arun Kumar Judge, Delhi High Court ( As his Lordship then was) and Hon'ble Mr Justice Manmohan Sarin Judge, Delhi High Court dealt with similar situation wherein power of attorney was executed on 17.07.1981and notarial certificate is dated 18.07.1981.
18. Vide para 8 of the judgement titled Birla D/w Ltd Vs. Prem Engineeing Works (supra) it has Contd..........
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been observed that :-
''Thepower of attorney was routinely tendered in evidence and exhibited. The question that comes up for consideration is whether a presumption of its due execution and validity can be raised under Section 85 of the Indian Evidence Act? A Division Bench of this Court had occasion to consider this aspect in Electric Construction & Equipment Co. Ltd Vs. Jagjit Works 1984 RLR 549. The Division bench observed as under:-
"it is useful to note that Section 85 raises a presumption about the execution of a POA provided two conditions are satisfied.
Firstly it must be executed before a Notary Public and secondly it must be authenticated by him. In this case, there is no authentication at all. There is no statement of facts by the Notary public regarding the manner of execution or the persons executing the document. If reference is made to the judgements cited before us, the contrast is striking. In the case of the City Bank, the authentication made by the Notary Public in New York covers nearly two printed pages of the Report and quotes extensively the circumstances in which the General POA was executed.
Contd..........
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Similarly, in the case of the National and Grindlays Bank Ltd, the authentication shows that the seal of the bank was impressed on the POA in the presence of the Notary and the same was the genuine seal of the Bank. Thus it was the authentication that proved both the execution as well as the due authentication of POA and therefore, satisfied the test laid down in Sec. 85 of the Evidence Act."
19. In Susannee Lenatz Vs. International Hotels Limited reported as 2005 (125) DLT 409: 2005 (85) DRJ 521 Hon'bleMr. Justice Badar Durrez Ahmed Judge, Delhi High Court has held that under order VI Rule 14 of the Code of Civil Procedure 1908 every pleading shall be signed by the party and his pleader, if any. The proviso to the said Rule indicates that where a party pleading is, by reason of absence or for other good cause unable to sign the pleading it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.
20. In Syndicate Bank Vs. M/s S.A Trading Corpn & Ors (Supra), a Division Bench of Delhi High Contd..........
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Court while dealing with the question of proof of power of attorney, where presumption under Section 85 of the Evidence Act could not be raised observed as under:-
''Incase the person who has conferred the Power of Attorney has not got it executed, so as to enable him to raise the presumption which may be raised in terms of Section 85 of the Evidence Act, then he is left with no option , but to prove the same in accordance with law. This is done by proving the resolution of the Board of Directors of the company, which gives its officers power to grant Power of Attorney to persons the company considers worthy of it, and also prove the factual execution of the Power of Attorney by the empowered officer or officers. This proof has to be tendered in Court by proving the passing of the resolution by the company in accordance with sections 193 and 194 of the Companies Act, 1956."
21. No explanation is given why the plaintiff had been kept away from the witness box. Supreme Court in case Vidhyadhar Vs. Manilrao JT 1990 (2) SC Contd..........
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183 held that :-
"When a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct."
22. In such circumstances, an adverse inference has to be raised against plaintiff that his case is not based on true facts and thus liable to be rejected.
23. Even the power of attorney Ex.PW1/1 executed by plaintiff Sh. Radhey Shyam Sharma in favour of PW1 Asrar Beg is invalid and not legal in the eyes of law. Notary Public has not made any endorsement on which basis he confirmed the identity of the executant Sh. Radhey Shyam Sharma and verified his signatures. So the twin requirement of execution and authentication by the Notary are not met with and no presumption of validity of the same can be raised under section 85 of Indian Evidence Act. In this regard reliance also can be placed upon Contd..........
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decision of our own High Court given in case Electric Construction & Equipment Co. Ltd. vs. Jagjit Works, 1984 RLR 549.
24. Through Power of Attorney, no authority or power can be given for giving statement in court on behalf of executant and attorney can appear and plead only but cannot act as a witness in place of person giving him attorney. In this regard reliance can be placed on the decision Ram Prasad vs. Hari Narain AIR 1998 Rajasthan 185.
25. Recently Supreme Court also in case Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. AIR 2005 SC 439 dealt with authority, power and limitations of attorney to depose in the court on behalf of principal. As per decision, attorney cannot depose in the court on behalf of principal. Thus in view of above decisions, in the present case, statement of PW1 shall be considered only to an extent of his personal knowledge of the facts and circumstances and his deposition in court cannot be read in place of the plaintiff Sh. Radhey Shyam Sharma as a substitute and Contd..........
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he is not competent to depose on those facts which were in the personal knowledge of plaintiff Sh. Radhey Shyam Sharma.
26. In the recent judgment of our own High Court, in the case titled Kamla Rani & Ors. V/s Texmaco Ltd.(supra), vide para 32, it has been observed that :-
''...........Theonly question which arises for consideration is, whether in absence of the Notary Public being produced as a witness or the executant thereof being not produced as a witness to prove the same, was the document proved as per law.''
27. Para 33 of the judgment titled Kamla Rani & Ors. V/s Texmaco Ltd.(supra) reads as under :-
''Authenticationby a Notary Public is a solemn act performed by the Notary Public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction.
Once a document is authenticated by a Notary Public, it will be presumed that the document was duly Contd..........
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executed and was in order. The use of the expression 'shall presume'shows that the section is mandatory and the Court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the Notary Public. As observed in AIR 1984 363, M/s. E.C. & E. Co. Ltd. V/s J.E. Works, if 2 conditions are satisfied, firstly the power of attorney being executed before a Notary Public and secondly it being authenticated by a Notary Public, a presumption would arise under Section 85 about the executant of the power of attorney.''
28. Para 34 of the judgment titled Kamla Rani & Ors. V/s Texmaco Ltd.(supra) reads as under :-
''Onuswould thus lie on the opposite party to prove to the contrary.''
29. Para 35 of the judgment titled Kamla Rani & Ors. V/s Texmaco Ltd.(supra) reads as under :-
''It is well settled that authentication would mean more than mere execution.
Contd..........
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Where proof of authentication surfaces, benefit of Section 85 has to be granted.''
30. PW 1 Sh. Sri Om Sharma has further deposed that his uncle Radhey Shyam is carrying on business of electric cable TVC manufacturing and trading under the name and style of M/s Hemant Cable. The connection was obtained under the name of M/s Sharma Optical but there was no work of optical and the connection was used for manufacturing of PVC cables. He has admitted inspection dated 2.2.1994 wherein irregularity of load violation and non installation of shunt capacitors was reported. FAE case was booked penalty of LPF has been challenged. They do not have valid MCD licence of M/s Hemant Cable. The connection was obtained for 3KW but later on 40KW load was declared under voluntary disclosure scheme. They are carrying business of M/s Hemant Cable since 1992-93. They have not informed DVB regarding change of name. Proprietor of both firm is same. Later on he has deposed that he do not remember whether inspection written statement carried on Contd..........
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02.02.1994. The connection has been disconnected by DVB at the closure and they will get the same restored when they start the business again. He has further deposed that factory cannot be started in the residential area as directed by the Supreme Court. He has further deposed that plaintiff is demanding refund of amount deposited on account of LPF and misuse. He has further deposed that amount has not been calculated and court fee has not been paid.
31. DW 1 Sh. U.K. Upadhyay has deposed that the supply was being used for manufacturing purpose for PVC wires. The inspection was conducted on 31.03.2000 in respect of K.No. JM 611-1377670. The connected load was 32.592KW. The consumer was also found using supply from other suit for glass grinding and polishing. The connection was sanctioned to M/s Sharma Opticals. The shunt capacitors was found installed in the premises. This inspection was carried out on the application of the plaintiff.
32. From all this it is clear that the inspection Contd..........
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was carried out on 12.04.1997 in respect of K. No. 611137762 (however, inspection dated 31.03.2000 is in respect of K. No. 611-1377670) wherein the registered consumer was M/s Sharma Optical and user was found M/s Hemant Cables. The industry was for manufacturing of PVC wires and optical glasses. The consumer was requested to show valid MCD licence within seven days. the shunt capacitors of 8KVAR was found installed at site. This report has been proved as Ex. PW- 1/12. This inspection is actually re-inspection against T/N No. 43779 dated 24.02.1997.
33. The averments in the plaint especially para- 3 mentions regarding inspection dated 02.02.1994 wherein it has been averred that plaintiff was found carrying work of optical grinding without installing shunt capacitors. On 03.02.1994 plaintiff got the shunt capacitors installed. He had deposited Rs. 50/- on 06.04.1994 vide receipt no. 2307 but no re-inspection was carried out. Later on he had deposited Rs. 100/- for re-inspection vide receipt no. 276428 dated 09.02.1998. But no such inspection was carried out and defendant failed to carry out re-inspection and Contd..........
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to remove the LPF and misuse charges. Plaintiff was forced to approach Bijli Adalat and vide decision dated 06.09.1998 Bijli Adalat had passed the order for inspection and in case any shunt capacitors are available the relief should be provided from the date of submission of test report i.e. 24.02.1997 or earlier whichever may be the case and following this order the defendant had carried out inspection on 31.03.2000. The plaintiff remained silent about inspection dated 12.04.1997 in the plaint except in para-6 wherein order of Bijli Adalat dated 06.09.1998 has been reproduced. It is the order of Bijli Adalat which has mentioned regarding inspection dated 12.04.1997.
34. It is also clear that plaintiff has not produced as well as proved order dated 05.05.2001 passed by Bijli Adalat for which also plaintiff was seeking relief. The only order on record is 06.09.1998. I have carefully gone through the order dated 06.09.1998 passed by the Bijli Adalat which has been reproduced in the plaint in para 6 and has also been exhibited as Ex. PW- 1/5. This order is passed by three Contd..........
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member Committee headed by its Chairman R.N. Soni. The remaining two Members are The Executive Engineer (D) Jhilmil, AFO (D) Jhilmil. This order nowhere mentions the amount. It is well settled proposition of law that the specific prayer has to be made. The prayer clause is not specific. The amount which could have been quantified for refund has not been quantified and specified in the plaint or otherwise. The prayer clause itself mentioned that appellant want refund of charges at the same time he has not not paid the court fee. He has not quantified the amount for which he is seeking refund. After going through the plaint in totality actually certain amount has been paid by the plaintiff and part of that amount plaintiff is seeking refund of. For this I also rely on the following authorities: -
1. Sarjiwan Singh Vs. Delhi Vidyut Board, 110 (2004) DLT 633 ; 2004 III AD (Delhi) 259
2. Kamleshwar Kishore Singh Vs. Paras Nath Singh & Ors.
VIII (2001) SLT 155
35. In 2004 III AD (Delhi) 259 Sarjiwan Singh Vs. Delhi Vidyut Board, Hon'ble Mr. Justice Vikramjeet Sen Contd..........
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has discussed in detail while declaring writ petition and references.
36. Vide para no. 2 of this judgement it has been discussed that:
''Theprovisions of law which are attracted are found in Section 7(iv) of the Court Fees Act. So far as the suit Valuation Act is concerned, what is basically enunciated therein is that the relief for the purposes of the valuation of the Suit must also correspond to the valuation for the purposes of the jurisdiction. So far as Section 7 of the Court Fees'Act is concerned, if it is necessary to seek a declaration before being entitled to consequential reliefs, (in the present case that of an injunction), the valuation would be different to those cases where an injunction simplicitor is prayed for. It is essential in the latter case that no legal obstacle has to be overcome before the injunction is claimed.''
37. In para no. 3 of this judgement Hon'ble Mr. Justice Vikramjeet Sen has referred to Shamsher Singh Vs. Rajinder Prashad and Others, AIR 1973 SC 2384: -
''wherein it has been discussed that the question whether the relief of Contd..........
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injunction prayed for by the plaintiff should be considered as a consequential to the main relief or not has to be decided on the basis of the allegations and the prayers contained in the plaint. Mere astuteness in drafting the plaint will not be allowed to impede the Court from looking at the substance of the relief asked for.''
38. In para 6 of this judgement, it has been observed that: -
''Where, however, the plaint does not disclose facts which, prima facie, show the illegality of the demand, the mere filing of a Suit for injunction simplicitor cannot be used as a device to defeat or delay the liability thereby created.''
39. Even in para 6 of this judgement Hon'ble Mr. Justice Vikramjeet Sen has referred to judgement titled Rampur Distillery & Chemicals Co. Ltd. Vs. Union of India passed by Hon'ble Mr. Justice R.C. Lahoti, the then judge, Delhi High Court in the following words: -
''A similar situation had arisen before a learned Single Judge of this Court in Rampur Distillery & Chemicals Co. Ltd. Vs. Union of India, 1995 1 AD (Delhi) 425=1995 (32) DRJ 733.
Contd..........
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Hon'bleMr. Justice R.C. Lahoti, as his lordship then was, has observed that ''The facts stated in the plaint show the plaintiff having entered into a contract with the Union of India for supplying certain commodity. The contract has failed. The defendant has exercised its right under the risk purchase clause, consequent to which a recovery in an amount of Rs. 5,24,790/- is outstanding against the plaintiff. By filing of the suit the plaintiff seeks to get rid of the contract and also avoid payment of Rs. 5,24,790/- to the defendant. Ad valorem court fee has not been paid by the plaintiff. His lordship went on to hold that the plaintiff is liable to pay Ad Valorem Court Fee. While doing so, reference was made to the effect that in such circumstances there is no difficulty in making a definite valuation so far as the Suit is concerned.''
40. In para 7 of this judgement it has been held that: -
''Where a bill has been raised by the Electricity Department, which is prima-facie legal, a Declaration must be prayed for to the effect that the bill is incorrect or illegal before the Plaintiff can legally pray for an injunction against the recoveries made on the basis of such bills.''
41. Even vide para 2 of the judgement titled Contd..........
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Sarjiwan Singh Vs. Delhi Vidyut Board (Supra) his lordship has clearly discussed that so for as Section 7 of the Court Fees Act is concerned, if it is necessary to seek a declaration before being entitled to consequential reliefs, the valuation would be different to those cases where an injunction simplicitor is prayed for.
42. I rely on case titled Kamleshwar Kishore Singh Vs. Paras Nath & Ors. (Supra) decided by Supreme Court of India.
43. R.C. Lahoti & Brijesh Kumar JJ of the Apex Court of the land have also held vide para 7 of this judgement that: -
''It is well settled that the Court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of Court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the Court fees in a manner other than the one adopted by the plaintiff. The court shall begin with an assumption, for the purpose of determining the Court Fees payable Contd..........
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on plaint, that the averments made therein by the plaintiff are correct.................................... It is the substance of the relief sought for and not the form which will be determinative of the valuation and payment of Court fee................................... If the plaintiff is ultimately found to have omitted to seek an essential relief which he ought to have prayed for and without which the relief sought for in the plaint as framed and filed cannot be allowed to him, the plaintiff shall have to suffer the dismissal of the suit.''
44. The appellant/plaintiff himself has admitted that amount has not been calculated and court fee has not been paid even though he is demanding refund of amount deposited on account of LPF and misuse. He has admitted regarding misuse in his testimony. He has also admitted regarding the fact that the connection was used for manufacturing of PVC cables by M/s Hemant Cables however the connection was obtained under the name of M/s Sharma Optical. They do not have valid MCD licence for M/s Hemant Cables and they are carrying on business under M/s Hemant Cables from 1992-93. The appellant/plaintiff was supposed to specify the Contd..........
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quantified refund which he is seeking for and to affix the requisite court fee which he has failed to do. Until and unless such amount is quantified, it is not possible for the defendant / respondent to defend the case properly. Moreover, the suit for injunction simplicitor in the facts and circumstances of this case is not maintainable wherein the main relief qua the recovery of amount or declaration of any of the inspections has not been sought for.
45. In view of the foregoing reasons, I am of the considered view that the impugned judgement does not warrant interference. There is no illegality and infirmity in the impugned judgement. The impugned judgement is upheld. The appeal stands dismissed. Parties shall bear their own cost.
46. Copy of this order be sent alongwith TCR.
47. Appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 01.10.2007 (PINKI) ADDITIONAL DISTRICT JUDGE DELHI Contd..........
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RCA 90/05 01.10.2007 Present: Proxy counsel for parties.
Vide separate order announced in the open court the appeal has been dismissed. Parties shall bear their own cost.
Copy of this order be sent alongwith TCR. Appeal file be consigned to Record Room.
(PINKI) ADDITIONAL DISTRICT JUDGE DELHI / 01.10.2007 Contd..........