Delhi District Court
Sh. Bhagwant Singh vs Bses Rajdhani Power Limited on 28 September, 2018
IN THE COURT OF VIPLAV DABAS,
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
Suit No.599198/2016
Sh. Bhagwant Singh,
Proprietor of M/s. New Paradise Industries,
NE17, Vishnu Garden,
New Delhi.
.............. Plaintiff
Versus
1. BSES Rajdhani Power Limited,
Through Head Corporate Legal,
Regd Head Office, BSES Bhawan,
Nehru Place, New Delhi110019.
2. Delhi Power Company Limited,
(Holding Company)
Through its General Manager,
Prefabricated Building,
Rajghat Power House, New Delhi.
(deleted vide order dated 01.08.2006) ............. Defendants
Date of institution of suit : 03.05.2006
Date of pronouncement of Judgment : 28.09.2018
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION
Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 1 of 17
JUDGMENT
1. The present suit has been filed on 03.05.2006 for declaration, permanent as well as mandatory injunction on the basis of averments that the plaintiff is a proprietor of M/s. New Paradise Industries and carrying out the business at NE17, Vishnu Garden, New Delhi.
2. It is further averred in the plaint that the plaintiff has obtained an electricity connection through K. No.2641T7100236 installed at premises No. NE17, Vishnu Garden, New Delhi having the sanctioned load of 4.05 KW. It is further stated that the premises of the plaintiff was sealed by the SDM on 18.02.2001 during which the there was no electricity connection and later on the premises was desealed by the SDM.
3. It is further submitted that during the period of sealing, the defendant no.1 raised the average bills and the all the bills were paid by the plaintiff, whereas as per the circular issued by the DVB during the period of sealing the consumer is not required to be billed. It is further submitted that plaintiff has received a bill issued for the billing month January2002 & in that bill it was mentioned that a credit of an amount of Rs.58,979.77 paise was given on account of sealing of the premises and also for the revision of the bill and after adjusting the current demand of Rs.9,618.29/ the plaintiff was not required to pay the amount of Rs.49,359/.
4. It is further averred that after January2002, the plaintiff started Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 2 of 17 receiving the bills in which the credit adjustment was given and this adjustment was given till June2003.
5. It is further stated that plaintiff has received a bill of Rs.66,298.49 paise issued for the month of May2003 and in this bill an amount of Rs.54,921/ was debited in the account of the plaintiff and in this regard a letter dated 18.08.2003 was received by the plaintiff from defendant no.1 in which it was mentioned that the defendant no.2 advised to cancel the credit of Rs.54,921/ and hence the credit was cancelled. However, this action of both the defendants is illegal as the credit cannot be cancelled in any circumstances and the defendants are bound to give the credit which was debited in the accounts of the plaintiff.
6. It is further submitted that meter of the plaintiff was changed on 24.08.2004 by the officers of the defendants and at that time the reading shown in the meter was 61749 and the plaintiff was already billed up to the reading 59810 and even after change of the meter, the officers of the defendant started raising the provisional bills and raised the provisional bills for the billing months of October2004, December2004 and February2005 in which provisional reading was mentioned as 2115 and 2081 and the plaintiff was forced to make the payment of the bills.
7. It is further averred that plaintiff is having a three phase connection and similarly most of the consumers are having the three phase connection Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 3 of 17 in the area but suddenly the defendant has stopped supplying three phase electricity in the village Vishnu Garden, New Delhi w.e.f.,13.05.2005. It is further averred that a complaint was made by the Factory Owner's Association to the General Manager on 20.05.2005 and a notice was also served through the counsel of the Association to the G. M. and thereafter the three phase connection was restored at the end of September2005 and due to this reason all the factories in the area could not work during the period from May to September, 2005. It is further submitted that after the installation of the new meter the reading of the plaintiff was very less and in the month of May and July 2005 the reading noted by the meter reader is less than 100 units but suddenly the defendant has raised the revised bill for the month of October2005 amounting to Rs.39,256.92 paise. In this bill, it was mentioned that the reading noted down on 18.09.2005 was 12210 but this allegation was baseless as the previous bills the reading was less and suddenly the reading cannot be 12210. It is further averred that the average consumption of the plaintiff is around 1000 units but in one month the defendant has shown the reading more than 10000 units which is impossible.
8. It is further averred that plaintiff also deposited the meter testing charges of Rs.100/ on 14.11.2005 but it was reported by the defendant on 28.03.2005 that the meter is found to be OK. Thereafter, the plaintiff has received a bill of Rs.58,449.15 paise in which arrears of the disputed bill is also included, whereas the plaintiff is not liable to pay the disputed amount Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 4 of 17 and hence this bill is illegal.
9. It is further stated in the plaint that the cause of action has arisen in favour of the plaintiff and against the defendants when the defendant has reverted back the credit entry from the bill of the plaintiff, it again arose when the defendant no.1 failed to adjust the average bills, it again arose when the defendant no.1 failed to adjust the average bills etc. It again arose when the defendant No.1 issued the revised bills, it again arose when the present disputed bill was received and that the cause of action is still subsisting.
10. Summons of the suit were issued to the defendant by the Ld. Predecessor of this court upon which the defendant put its appearance through Ld. Counsel and thereafter the matter was listed for filing of Written Statements on behalf of defendant.
11. Written statement was filed on behalf of defendant no.1 on 27.05.2006 wherein it is stated that plaintiff has not approached the court with clean hands and concealed the material facts that load of the plaintiff was enhanced in May, 1999 from 4.05 KW to 20 KW, therefore, suit of the plaintiff is liable to be dismissed. It is further submitted that suit of the plaintiff is without cause of action, therefore, the same may be dismissed under Order VII Rule 11 CPC. On merits, it is submitted that the plaintiff has obtained the connection for a load of 4.05 KW but he has got it Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 5 of 17 enhanced in May, 1999 to 20 KW. It is further submitted that bills were raised as per rules and the factory was desealed on 09.05.2001, since then the factory is running.
12. It is further submitted that credit of Rs.58,976.77 was wrongly given to the plaintiff, instead as per rules, his demand would have been raised, as the minimum charges have only been charged for a load of 4.05 KW whereas actually, it has to be charged for the enhanced load of 20 KW since 04.05.1999. It is further stated that there is no cause of action in favour of the plaintiff as the aforesaid amount has been rightly debited in respect of the increased charges due to enhancement of load and thus suit is liable to be dismissed.
13. It is pertinent to mention here that after framing of issues vide order dated 01.08.2006, the matter was fixed for Defendant's Evidence instead of Plaintiff's Evidence. Perusal of the file shows that defendant had moved an application under Order 18 Rules 1 and 2 CPC read with section 151 CPC seeking direction to the plaintiff to lead Plaintiff's Evidence first which was allowed vide order dated 22.3.2018 and thereafter the matter was fixed for Plaintiff's Evidence.
14. Perusal of the file further reveals that vide order dated 01.08.2006, an application under Order I Rule 10 CPC filed on behalf of defendant No.2 was allowed and name of the defendant no.2 was deleted from the array of Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 6 of 17 parties.
15. On completion of pleadings, following issues were framed by Ld. Predecessor of this Court vide order dated 01.08.2006:
1. Whether plaintiff is entitled for the decree of permanent injunction as prayed for?OPP
2. Whether plaintiff is entitled for the decree of mandatory injunction as prayed for?OPP
3. Whether plaintiff is entitled for the decree of declaration as prayed for?OPP
4. Relief.
Evidence:
16. Thereafter the matter was fixed for plaintiff's evidence. In order to prove its case, plaintiff examined himself as PW1 by tendering evidence by way of affidavit Ex.PW1/A and relied upon the documents namely copy of licence as Ex. PW1/1; copy of the sealing order and desealing order as Ex. PW1/2; copy of bills as Ex.PW1/3 and Circular as MarkA; Copy of the bills till June 2003 as Ex.PW1/5; copy of the bill of Rs.66,298.49 and letter dated 18.08.2003 as Ex.PW1/6 (colly); copy of meter change report as Ex. PW1/7; copies of bills for the months of October2004, December2004 and February2004 as Ex. PW1/8 (colly); copy of the bills for October2005 as Ex. PW1/9; copy of the meter testing report as Ex. PW1/10 and copy of bill of Rs.58,449.15 as Ex. PW1/11.
It is pertinent to mention here that Ex. PW1/4 and Ex. PW1/8 are not mentioned in the affidavit Ex. PW1/A and thus the same are deexhibited.
Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 7 of 17PW1 was duly cross examined by Ld. Counsel for the defendant and discharged.
17. The plaintiff's evidence was closed vide Order dated 18.07.2018 upon separate statement of plaintiff recorded to this effect and the matter was listed for defendant's evidence.
18. In defendant's evidence, Sh.Prem Kumar Pahwa (Authorised Representative of the defendant company) was examined as DW1 by tendering evidence by way of affidavit Ex.DW1/A and this witness relied upon the documents i.e. Ex. DW1/1 copy of bill (electricity) dated 30.07.2006; MarkA is reading details(the same has been mentioned as Ex. DW1/2); MarkB is credit statement for the period from 01.08.2002 to 17.05.2006 (the same has been mentioned as Ex. DW1/2); MarkC meter details(the same has been mentioned as Ex. DW1/4); MarkD is payment details(the same has been mentioned as Ex. DW1/5); MarkE is photocopy of meter book sheet (the same has been mentioned as Ex. DW1/6) and Ex. DW1/7 is certified copy of CC Book (copy of ledger) which was objected to as to mode of proof. This witness was duly cross examined on behalf of plaintiff and discharged.
19. Thereafter the evidence of defendant was closed on 07.09.2018 upon statement of Ld. Counsel for defendant on 07.09.2018 recorded to this effect and the matter was fixed for final arguments.
Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 8 of 1720. Final Arguments were heard at length and the record is carefully perused by this court.
Issuewise Findings:
21. Considering the present factual matrix and nature of issues, both the issue No.1, 2 and 3 are being decided together as the same are interconnected. Issue No.1, 2 and 3 are reproduced for the sake of clarity: Issue No.1,2 and 3
1. Whether plaintiff is entitled for the decree of permanent injunction as prayed for?OPP
2. Whether plaintiff is entitled for the decree of mandatory injunction as prayed for?OPP
3. Whether plaintiff is entitled for the decree of declaration as prayed for?OPP
22. Onus to prove all the aforesaid issues was cast upon the plaintiff, who filed the present suit seeking a decree of declaration and permanent and mandatory injunction thereby declaring the letter dated 18.11.2003 issued by the defendant No.1 for debiting the credit entry of Rs. 54,921/ and the debiting of the said amount of Rs. 54,921/ as well as the revised bill issued for the month of October 2005 as null and void and directing the defendant No.1 to withdraw the letter dated 18.08.2003 and to revert back the credit entry into the account of the plaintiff. Plaintiff has further sought the relief of restraining the defendants from disconnecting the supply on the basis of non payment of the demand of Rs. 58,449.15paise and directing the Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 9 of 17 defendant No.1 to adjust the average bills paid by the plaintiff.
23. The version of the plaintiff is that the defendant No.1 had granted a credit of Rs. 58,976.77/ in January 2002, on account of sealing of the premises and revision of the bill as per the policy applicable at that time according to which consumer was not required to pay for the period during which the premises remained under seal as no electricity was consumed and only the average bills were raised for that period which were duly paid by the plaintiff. It is further averred by the plaintiff that he kept on receiving the bills with credit adjustment till June 2003 and the plaintiff received a bill of Rs. 66,298.49 paise issued for the month of May 2003, in which an amount of Rs. 54,921/ was debited in the account of the plaintiff and a letter dated 18.08.2003 was also received by the plaintiff from defendant No.1 in this regard wherein it was mentioned that the defendant No.2 advised by defendant No.1 to cancel the credit of Rs. 54,921/ and hence the credit was cancelled.
24. The version of the defendant No.1 is that the aforesaid credit was wrongly given and the same was cancelled as the plaintiff had got the load for connection enhanced from 4.05KW to 20 KW in May 1999 but the bills were being issued inadvertently for 4.05KW despite enhancement of the load and the aforesaid credit has been cancelled for adjusting the amounts which the plaintiff is liable to pay in respect of enhanced load and other consequent charges.
Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 10 of 1725. Plaintiff affirmed the version of the plaint in his affidavit in evidence Ex.PW1/A. PW1 admitted that he had paid all the original bills raised during the period of January 2001 to July 2001, which shows that nothing was due in respect of the said period. PW1 firmly denied the suggestion that he was paying the bill against the consumption limit of 4.5KW only, that the bill paid during January 2001 to July 2001 was not paid as per the actual consumption of electricity in the factory or that the amount of Rs. 58,976.77 paise was wrongly credited in his account and it was not credited on account of bill raised during the sealing period. He further deposed that he had been regularly paying the bills since 1999 till date as per the bills issued by the concerned electricity board. PW1 admitted that he had received a notice/letter dated 18.08.2003 on behalf of BSES regarding the intimation of debit of amount of Rs. 54,921/ from his account as the said amount was wrongly credited in his account. Plaintiff further denied the suggestion that Rs. 54,921/ was debited correctly from his account, that bill issued in the October 2005 was correctly issued, that late payment surcharge has been correctly imposed upon the plaintiff, that bill raised against 12210 units was legal and he was liable to pay the same and that the credited amount of Rs. 54921/ was legally withdrawn by the BSES.
26. The cross examination of PW1 further reveals that no suggestion was put on behalf of defendant No.1 to deny the plaintiff's version as mentioned in para 4 of affidavit to the effect that he was not liable to pay the bills Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 11 of 17 during the sealing period as per the circular issued by Delhi Vidyut Board which is a material omission amounting to admission of the aforesaid deposition by the defendant No.1. The aforesaid testimonies show that the plaintiff withstood the test of cross examination by firmly denying the suggestion so put on behalf of the defendant and thus reinforced his version that he was paying the bills as per the amount demanded by the electricity company, that the amount of Rs. 58,976.77 paise was rightly credited to his account with respect to the adjustment for over charges billed during the sealing period.
27. Record shows that the defendant led the evidence of Sh. Prem Pahwa who relied on documents Ex.DW1/1 to Ex.DW1/7 out of which the document Ex.DW1/2 to Ex.DW1/6 were marked as mark A to E at the time of tendering of the affidavit and objection as to mode of proof was raised by Ld. Counsel for the plaintiff in respect of the document Ex.DW1/7 which is certified copy of CC Book(copy of ledger book of the defendant). It is apparent from the aforesaid documents that the documents marked A to E and Ex.DW1/7 are either computerized copies or photocopies of computerized copies, originals of which and necessary certificate under Section 65B of Indian Evidence Act to make the same admissible were not brought on record. This is a material omission indicating that the aforesaid documents cannot be relied for establishing the defendant's version.
28. Perusal of cross examination of DW1 reveals that he admitted that no Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 12 of 17 document is exhibited by him regarding the allegations of load which was increased, that till the year 2004 the load was shown as 4.05 KW in the bill and that he does not know when the same was mentioned in the bill. DW1 further deposed that he came to know regarding the enhancement of the load only in the year 2013 when he joined this department. This testimony of DW1 shows that he does not know anything about the load enhancement aspect which renders his version as deposed in the affidavit unreliable. It is further evident that neither any other witness who was personally well versed with the factum of load enhancement and the increased charges which were to be levied on load enhancement nor any admissible document have been filed and proved in support of the defendant's version that the bills being issued after the load enhancement were not prepared as per the increase in the charges due to the said enhancement of load and the charges were levied in respect of the old load of 4.05KW .
29. DW1 further testified that factory of the plaintiff was sealed during the period 13.02.2001 to 09.05.2001 and thereafter the factory was desealed and for this period an assessment bill was raised amounting to Rs. 58,976.77 paise after adjusting some amount which was to be refunded on account of withdrawal of penalty of low power factor charges. DW1 further admitted that the concerned AFO mentioned in the bill that there was a refund of Rs. 58,976.77paise on account of refund of low power factor charges and refund of minimum charges, charged during the sealing period. This testimony shows that DW1 admitted the version of the plaintiff that certain charges Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 13 of 17 were wrongly levied during the sealing period for which no charges were to be levied as per the policies of the Delhi Vidyut Board and the refund of Rs. 58,976.77 paise was rightly made by crediting the same in favour of the plaintiff who had been paying the average bills during the said period. DW 1 further admitted that besides the aforesaid amount no other charges were levied and no amount was due when the suit was filed. This testimony fortifies the plaintiff's version that he had been regularly making the payment of the bills and the dispute arose only in respect of the aforesaid amount which was wrongly debited from the account of the plaintiff. DW1 further admitted that this amount was refunded in the bill and testified that the same was done twice. DW1 further testified that he cannot show any document regarding the refund of the amount twice. The failure of the DW 1 to show any document regarding the refund of the amount twice shows that DW1 is making a false statement regarding the said refund being made twice. Considering the aforesaid observations which establish that the aforesaid amount was rightly credited in the account of the plaintiff and that the subsequent debiting of the aforesaid amount on account of adjustment due to load enhancement is not justified on the part of the defendant, it follows that the late payment charges and other penalty charges levied upon the plaintiff due to non payment of aforesaid wrongly debited amount cannot sustain.
30. Keeping in view the aforesaid observations and the fact that the defendant failed to bring any admissible document/record/calculations Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 14 of 17 suggesting that the plaintiff was liable to make the payments for the enhanced load of 20KWs and that the alleged bills issued to the plaintiff during the said period were computed on the basis of sanctioned load of 4.05KWs and not 20KWs, the argument advanced on behalf of the defendant that the plaintiff was having ample knowledge that he is making the payment for 4.05KWs as the connected load was mentioned as 4.05KWs continuously in the bills issued after the said enhancement for a long time and thus it can be inferred that the alleged credit of Rs. 58,976.77 paise was wrongly made by the defendant which was later on corrected by debiting the same in the bill of May 2003, does not hold any water as it is the internal calculations of the defendant which can only establish the real charges to be levied upon enhancement of the load which have not been brought on record despite opportunity and mere mentioning of 4.05KWs on the bills is not sufficient notice to the plaintiff to comprehend that the charges being paid by him are not in respect of the enhanced load.
Furthermore, even if for the sake of arguments it is admitted that the plaintiff had not made the payments of the bills in terms of the increased charges for the enhanced load still the act of the defendant, in directly deducting the credit given to the plaintiff in respect of excess charges levied during the sealing period as notified to the plaintiff by the defendant itself in its bill, is not justified and is against the principles of natural justice as neither any notice was issued to the plaintiff asking him to pay the increased charges on account of load enhancement nor he was heard prior to the alleged reversal of the aforesaid credit. It is further pertinent to mention that Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 15 of 17 the defendant cannot approbate and reprobate at the same time by granting the credit for a different reason i.e. over charging during the sealing period and by reverting the said credit for another reason i.e. for adjustment towards the enhanced load and hence the conduct of the defendant in debiting the amount as alleged is highly unreasonable. It appears that the defendant has straightway debited the aforesaid amount vide letter dated 18.08.2003 (Ex.PW1/6) in order to escape the provisions of limitation act as the limitation period for reclaiming the amount in respect of the increased charges due to load enhancement in the year 1999 had expired in the year 2002 itself and during the said period neither any intimation was sent to the plaintiff nor any action was taken which further shows the malafides of the defendant and indicates that the alleged debiting made by the defendant is not proper in the eyes of law.
31. It thus emerges from the aforediscussed facts, circumstances, observations and analysis of testimonies that the plaintiff has been able to give rise to preponderance of probability suggesting that the defendant No.1 had rightly granted a credit of Rs. 58,976.77paise in January 2002 on account of sealing of the premises, that the defendant No.1 has wrongly debited the amount of Rs. 54,921/ on account of increased charges pursuant to the load enhancement, that the letter dated 18.11.2003 issued by the defendant No.1 for debiting the credit entry of Rs. 54,921/ and the debiting of the said amount of Rs. 54,921/ as well as the revised bill issued for the month of October 2005 is not justified and that the defendant No.1 is liable Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 16 of 17 to adjust the average bills paid by the plaintiff. It shows that the plaintiff is entitled to the decree of permanent and mandatory injunction as prayed. Accordingly, all the aforesaid issues are decided in favour of the plaintiff and against the defendant.
Issue No.4 Relief
32. In view of the foregoing discussion and the findings on the aforesaid issues, the present suit is decreed in favour of the plaintiff for declaration, permanent as well as mandatory injunction, thereby declaring the letter dated 18.11.2003 for debiting the credit entry and debiting the amount of Rs. 54,921/ and revised bill issued for the month of October, 2005 as null and void, and further restraining the defendants, its officers from disconnecting the supply through K No. 2641T7300236 installed at premises No. NE17, Vishnu Garden, New Delhi, on the basis of non payment of impugned demand of Rs. 58,449.15paise as well as directing the defendant No.1 to adjust the average bills paid by the plaintiff and to withdraw the letter dated 18.08.2003 and revert back the credit entry into the account of the plaintiff.
Costs are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
VIPLAV Digitally signed by
VIPLAV DABAS
DABAS Date: 2018.09.29
16:12:30 +0530
Announced in the open Court (Viplav Dabas)
on this 28.09.2018 Civil Judge01/Central,
Tis Hazari Courts/Delhi
Bhagwant Singh vs BSES & Anr. Suit No.99198/2016 Page 17 of 17