Delhi District Court
Sunil Tiwari vs Ndpl on 14 July, 2011
Suit No. 146/2011
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 146/2011
Sunil Tiwari
........Plaintiff
Versus
NDPL
....Defendant
Order:
Vide this order, I shall dispose off an application under Order XXXIX
Rule 1 and 2 CPC filed on behalf of the plaintiff against defendant. The brief facts for
the effectual disposal of the instant application are as follows:
1.The the case of the plaintiff is that the plaintiff is the registered user of electricity connection bearing K. No. 33300144337 installed at Second floor of property bearing no. 54E, Raja Garden, New Delhi. That there is a valid agreement between the registered consumer Sh. Suresh Kumar Ahuja and the defendant. The aforesaid connection was sanctioned and installed for domestic purposes on completion of the requisite formalities and on deposit of security amount on the basis of the load sanctioned in favour of the plaintiff by the defendant. That the said property was purchased by the wife of the plaintiff namely Mrs. Madhu Tewari along with Mrs. Aparna Tewari, w/o Mr. Rajiv Tewari from its previous owner Mr. Suresh Kumar Ahuja for lawful sale consideration in the year 1999. That the bills of the aforesaid electricity connection have been paid by the plaintiff as and when the same are raised by the defendant and there is no outstanding. That the plaintiff with his family members were away from Delhi and when they returned on 18.02.2010, they were surprised to find that the electricity meter feeding to the second floor was stolen by Sunil Tiwari vs. NDPL 1/6 Suit No. 146/2011 some one. The plaintiff lodged a complaint on 18.02.2010 with PS Moti Nagar, New Delhi and the plaintiff informed the defendant's officials regarding theft of electricity meter and as demanded by them the plaintiff deposited a sum of Rs. 1630/ for installation of a new electricity meter vide demand note no. 437882. Thereafter the officials of defendant installed a new meter in place of the earlier stolen meter. That although the plaintiff has been making prompt payments of the bills to the defendant and there was no outstanding dues of any kind whatsoever, yet the officials of defendant raised a demand of Rs. 5,790/ vide notice dated 11.11.2010 which was paid by the plaintiff under protest. The wife of the plaintiff had already got the said electricity connection converted into commercial connection by depositing the requisite charges of Rs. 4,125/ with it vide demand note no. 583200 dated 16.12.2010, yet the defendant all of a sudden passed a provisional order of assessment under Section 126 (1) of Electricity Act, 2003 dated 24.02.2011 and raised a demand of Rs. 10,951/ as electricity charges payable for alleged unauthorized use allegedly on the basis of inspection having been done on 13.12.2010. The plaintiff was required to show visit the office of the defendant on 09.03.2011 and explain the matter personally. Accordingly the plaintiff attended the office of the defendant and submitted a reply to the show cause stating that there was no misuse of any kind whatsoever and the meter has been working OK and seals are intact. The plaintiff requested the defendant to give details of alleged misuse to take remedial measure but to no avail. Yet another demand for a total sum of Rs. 19,727.57 in which the current charges are shown as Rs. 1375.24 and a sum of Rs. 18149.69 are shown as outstanding arrears was raised to be paid by 18.04.2011. It is the case of the plaintiff that the impugned demand as made by the defendant is totally wrong, false, illegal and is legally not due and payable Sunil Tiwari vs. NDPL 2/6 Suit No. 146/2011 by the plaintiff. The defendant officials, however, are constantly threatening the plaintiff by making wrong and illegal demands of alleged arrears and have also extended threats to disconnect the supply in case amount of the impugned bill is not paid by the plaintiff and in case the defendant succeeds in its threatened action, the plaintiff will suffer irreparable loss and injury which cannot be compensated in terms of money. The abovesaid factual matrix gave the plaintiff the cause of action to file the present suit and press the instant application.
2. In order to substantiate his case the plaintiff has filed various documents viz. copy of letter to NDPL, photocopy of letter to NDPL, photocopy of demand note dated 16.12.2010, photocopy of letter dated 13.12.2010, photocopy of the election Icard of wife of the plaintiff, photocopy of the election Icard of sister of the plaintiff, photocopy of the sale deed in favour of wife of plaintiff, photocopy of reply of show cause notice, photocopy of the assessment order and photocopy of bill dated 18.04.2011.
3. In reply, it is submitted on behalf of defendant that the case of the plaintiff is not maintainable and the same is liable to be dismissed since, the plaintiff has no locus standi to file the present suit. Further the plaintiff did not seek the relief of declaration in respect of the subject bill as well as in respect of inspection report dated 13.12.2010. It is submitted that as per record, the connection bearing K. No. 33300144337 had been sanctioned in the name of the Sh. Suresh Kumar Ahuja with sanctioned load of 4.000 KW for domestic purpose and installed at premises No. 54E, Second Floor, Raja Garden, New Delhi110015. A case of misuse was booked and processed after the inspection dated 13.12.2010 in which the domestic electricity connection was found to be used for nondomestic purposes i.e. for office purpose. Inspecting team has Sunil Tiwari vs. NDPL 3/6 Suit No. 146/2011 detected that plaintiff was indulged in unauthorized use of electricity (UUE)/ misuse from his domestic connection, therefore a case of unauthorized use of electricity had been booked. That plaintiff had applied for a change of category only on 14.12.2010 after getting caught in unauthorized use of electricity in the inspection dated 13.12.2010. However, it is submitted that an amount of Rs. 4,125/ was paid on 22.12.2011. It is submitted that an inspection was carried out by the enforcement department of NDPL on 13.12.2010 against K. No. 33300144337 in presence of present plaintiff. Domestic connection was found being used for nondomestic connection i.e. for office purpose. Due to abovementioned irregularities a case of Unauthorized Use of Electricity/ misuse of Electricity under Section 126 of Electricity Act, 2003 was booked against the plaintiff. Inspite of having notice nobody turned up for personal hearing and did not submit any reply/ representation against the show cause notice. Thereafter the matter was proceeded further and a provisional order of assessment for a sum of Rs. 10,951/ under Section 126(1) of Electricity Act, 2003 was passed against the plaintiff/ consumer on 25.02.2011.
4. In order to substantiate his contentions, the defendant has filed the photocopy of the inspection report dated 13.12.2010, photocopy of the Action report dated 13.12.2010, photocopy of show cause notice dated 13.12.2010, photocopy of J.E. Calculation Sheets, photocopy of Provisional Order of Assessment under Section 126 (1) of Electricity Act 2003, photocopy of Final Assessment order and photocopy of five photographs.
5. I have heard Ld. counsels for both the parties and gone through the material available on record.
6. It is a settled law that a party is entitled to an order of injunction only if he is able to Sunil Tiwari vs. NDPL 4/6 Suit No. 146/2011 satisfy the court that a strong prima facie case has been made out in his favour, the balance of convenience also lies in his favour and that refusal of injunction will cause an irreparable injury to him.
Prima facie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of the plaintiff raises a triable issue which needs investigation, consideration and adjudication.
The plaintiff is also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant or refusal of relief of injunction.
The plaintiff is also to satisfy the court that noninterference by the court would result in an irreparable injury and that there is no other remedy available to him except one i.e. the grant of injunction in his favour. Irreparable injury means an injury which is a material one and one that cannot be adequately compensated by way of damages. Further, it is a settled law that grant of temporary injunction is an equitable relief wherein the plaintiff has to satisfy the court that he has acted bonafidely.
7. Coming to the facts of the case in hand, admittedly there was an inspection carried out on 13.12.2010 and the meter installed in the premises of the plaintiff was removed owing to misuse of electricity. It is the case of the plaintiff that an inspection was carried out by the enforcement department of NDPL on 13.12.2010 against K. No. 33300144337 in presence of present plaintiff. Domestic connection was found being used for nondomestic connection i.e. for office purpose. Due to abovementioned irregularities a case of Unauthorized Use of Electricity/ misuse of Electricity under Section 126 of Electricity Act, 2003 was booked against the plaintiff. Inspite of Sunil Tiwari vs. NDPL 5/6 Suit No. 146/2011 having notice nobody turned up for personal hearing and did not submit any reply/ representation against the show cause notice. Thereafter the matter was proceeded further and a provisional order of assessment for a sum of Rs. 10,951/ under Section 126(1) of Electricity Act, 2003 was passed against the plaintiff/ consumer on 25.02.2011.
8. At this stage I am of the considered opinion that until the parties have led their respective evidence, it cannot be decided whether the removal of the meter installed at the premises of the plaintiff was justified on the part of the defendant or not or whether impugned bill is valid. However at the same time, it cannot be overlooked that electricity is an essential amenity for every person and till the matter is finally adjudicated on merits, the plaintiff shall suffer if electricity connection is not installed. Accordingly, in the larger interest of justice, the application of the plaintiff under Order XXXIX Rule 1 and 2 CPC is allowed i.e. the defendant is directed to install the electricity connection in the premises of the plaintiff subject to the plaintiff depositing in the court a sum of Rs.6,500/ i.e. part of the amount of the impugned bill within 10 days from today.
9. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court today on 14.07.2011 (Shefali Sharma) Civil Judge (West) THC, Delhi/ 14.07.2011 Sunil Tiwari vs. NDPL 6/6