Delhi District Court
M/S.Kansal Brothers vs North Delhi Power Limited on 18 January, 2010
IN THE COURT OF SHRI SANJEEV JAIN
ADDL.DISTRICTJUDGE;(CENTRAL DIST) DELHI.
SUIT NO. 338/04 (ID No.02401C5320582004)
Date of Institution: 01.07.04
Arguments heard on : 22.12.09
Date of Decision: 18.01.10
M/s.Kansal Brothers,
Through its proprietor,
Shri Ram Kumar Jain,
A95/2, Wazirpur Indl.Area, Delhi.
... Plaintiff.
Vs.
North Delhi Power Limited,
Through its C.E.O.
Hudson Lines, Kingsway Camp,
New Delhi.
... Defendant.
JUDGMENT
1 Plaintiff M/s.Kansal Brothers has filed a suit for declaration and permanent injunction praying therein:
(a) That by decree of declaration, inspection report dt.15.6.04, notice dt.15.6.04, speaking order and final bill Suit no. 338/04 1 amount of Rs.15,81,819/ be declared as null and void. b That defendant be restrained from disconnecting the electricity supply though K.No.32200734712 Q installed at A 95/2, Wazirpur Indl.Area, Delhi on the basis of non payment of impugned bill of Rs.15,81,819/.
2 The brief facts as disclosed in the plaint are that plaintiff let out the premises bearing no.A95/2, Wazirpur Indl.Area, Delhi to Sh.Pankaj Gupta, who was running ice factory in the premises. Plaintiff obtained an electricity connection through K.No.32200734712 Q. On 05.06.04, during morning hours, there was load shedding and in the mean while a huge blast had occurred in the meter door due to some short circuit. Instead of replacing the meter, inspection was carried out by the defendant on 15.6.04. It was alleged that paper seal Zonal IR number 122510 was found in torned position. It is stated that plaintiff was running an ice factory which is a seasonable business. The factory ice factory started running at the end of Suit no. 338/04 2 March and was running with full swing in the month of April. Therefore, during these months, the reading in the month of April was 25998. It is stated that there was no material to book the case of DAE and the bill was raised contrary to section 126 of "The Electricity Act 2003" and rules there under. It is stated that it was the duty of defendant to affix a permanent seal instead of paper seal. Defendant did not affix the permanent seal and without any material on record made out the case of DAE.
3 In written statement, it was alleged that suit is not maintainable in its present form; that plaintiff has not come to the court with clean hands and suppressed the material facts; that plaintiff was found using connected load of 72.952 KW against the sanctioned load 85.75 KW and was found indulged in theft of electricity. It was alleged that Zonal IR seal was found in torned position and two no.box (cable entry box) seals were found missing through which I/CS/cable was accessible. Suit no. 338/04 3 In preliminary objections, it was alleged that plaintiff is not entitled for the relief of injunction under section 41(h) and 14 of Specific Relief Act and that plaintiff has violated rule 25(b) of Delhi Electricity Conditions of Supply. On merits, it is admitted that M/s.Kansal Brothers is the registered consumer with the sanctioned load of 85.79 KW in the category of industrial connection. The inspection conducted by the officials of defendant on 15.6.04 and raising the impugned bill has also been admitted. It is stated that impugned bill was raised after serving show cause notice giving personal hearing and passing speaking order in accordance with the established procedure. Other material contents of the plaint were denied. 4 In replication, the material averments of the written statement including preliminary objections were denied and contents of the plaint were reiterated as correct. 5 On the basis of pleadings and material on record, Suit no. 338/04 4 following issues were framed vide order dt.10.3.06.
1. Whether the suit is maintainable in the present form?(OPP)
2. Whether the suit is not maintainable in view of preliminary objection no.2 of the written statement?(OPD)
3. Whether the suit is not maintainable in view of preliminary objection no.3 of the written statement?(OPD)
4. Whether the suit is not maintainable in view of preliminary objection no.4 of the Written statement?(OPD)
5. Whether the plaintiff is entitled to the relief of declaration as prayed for?(OPP)
6. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?(OPP)
7. Relief.
Suit no. 338/04 5 6 In order to prove its case, plaintiff has examined PW1 Sh.Ram Kumar Jain, the proprietor of M/s.Kansal Brothers, who supported the plaintiffs case on material averments and proved the relevant documents which includes copy of the bill for the month of Sept.2003 Ex.PW1/1, copy of complaint dt.5.6.04 Ex.PW1/2, copy of show cause notice Ex.PW1/3 and reply of the same Ex.PW1/4, copy of notification Ex.PW1/5, copy of 24 bills exhibited as PW1/6 to PW1/29, copy of speaking order Ex.PW1/30 and copy of bill is Ex.PW1/31.
PW2 Sh.Pankaj Gupta was the user of the factory premises being the tenant of the plaintiff. He supported the plaintiffs case and proved the relevant documents. 7 In defendants evidence DW1 Sh.Rajeev Gupta, Asst.Manager(Comml.) was examined, who proved the relevant documents including the inspection report prepared by him Ex.DW1/1 and show cause notice dt.15.6.04 signed by him at Suit no. 338/04 6 point C Ex.DW1/2.
DW2 Sh.Aashish Kumar, Asst.Manager, NDPL also proved the defendants version, who proved the relevant documents which includes the speaking order Ex.DW2/1. He identify the signature of Mr.Sandeep at point B on final theft bill. The same is exhibit as DW2/2.
8 I have heard the Ld.counsels for parties, carefully gone through the pleadings, evidence of parties, documents proved on record and the written submissions filed on behalf of parties. Issue wise discussions is as follows:
9.Issue no.1:Whether the suit is maintainable in the present form?(OPP) Plaintiff has filed the suit through M/s.Kansal Brothers through its proprietor Sh.Ram Kumar Jain. In written statement, it was stated that suit is not maintainable in its Suit no. 338/04 7 present form. During evidence, nothing has been stated in respect of this issue. In arguments, it was submitted on behalf of defendant that how a proprietorship firm can sought the relief. In law, proprietorship firm is nothing, but its proprietor. Proprietor himself is the owner/Manager/Controller of a proprietorship firm, who represents the same. Here the proprietorship firm has filed the suit through its proprietor. The proprietorship firm in itself may not be a juristic person, but it is an identity of the name and style of business being run by an individual. When the suit has been filed through proprietor of the firm, there is nothing wrong in the form of the suit. In my view, suit is maintainable in its present form. Issue is accordingly decided in favour of plaintiff. 10 Issue no.2:Whether the suit is not maintainable in view of preliminary objection no.2 of the Written Statement?(OPD) It was stated on behalf of defendant that plaintiff has not Suit no. 338/04 8 approached the court with clean hands and suppressed the material facts. It is admitted by both the parties that premises belongs to M/s.Kansal Brothers, a proprietorship firm being represented through its proprietor Sh.Ram Kumar Jain, who let out the same to Sh.Pankaj Gupta, who was running the ice factory in the premises. It is also admitted fact that electricity connection was granted in the name of plaintiff. It is further admitted between the parties that inspection was carried out in the premises and the impugned bill was raised. Most of the material facts are being admitted between the parties. I do not find any substance in the contention of defendant pertaining to the suppression of material facts alleged in preliminary objections. Nothing has been stated by DW1 and 2 in this regard in their testimony. During course of arguments, it was pointed out that user Sh.Pankaj Gupta has failed to prove any valid MCD license in his favour. The action of defendant has been challenged in respect of raising the impugned bill. The impugned bill was not raised on the ground of not possessing Suit no. 338/04 9 the MCD license. Therefore, it was not an essential fact in respect of cause of action of the suit and therefore, can not be said that any material fact has been suppressed by the plaintiff. Issue is accordingly decided in favour of the plaintiff. 11 Issue no.3:Whether the suit is not maintainable in view of preliminary objection no.3 of the written statement? (OPD) It was alleged in written statement that plaintiff is not entitled for the relief of injunction under section 41(h) and 14 of Specific Relief Act and such suit is not maintainable and is liable to be dismissed with cost. During evidence, nothing has been deposed by DW1 and 2 in respect of this issue. During course of arguments also nothing substantial was pointed out from the side of defendant. Plaintiff has challenged the impugned bill on he ground that there was no material to book the case of DAE. Such a case is not merely a billing dispute or the damage which may be compensated in terms of cost. The Suit no. 338/04 10 action of defendant could have been challenged by claiming a relief of declaration or permanent injunction. In my opinion, the cause of action brought before he court by the plaintiff is not barred by section 41(h) and 14 of Specific Relief Act. Issue is accordingly decided in favour of plaintiff. 12 Issue no.4:Whether the suit is not maintainable in view of preliminary objection no.4 of the written statement? (OPD) It was alleged by the defendant that plaintiff has violated rule 25 (b) of the Delhi Electricity Conditions of Supply, wherein it has been stipulated as under:
"Any complaint with regard to the accuracy of the bills shall be made in writing to the undertaking and amount of such bills shall be paid under protest by the due date. The amount of the bills paid under protest by the due date. The amount of the bill paid under protest will be Suit no. 338/04 11 regarded as advance to the credit of the consumer's account until such time as the bills in dispute has been fully settled."
It was submitted on behalf of defendant that payment of entire disputed bills was a pre condition before coming to the court which was not complied with by the defendant. The provision is applicable in the cases, where accuracy of bill is in question. In the present case, it is not a only question of accuracy of bill, but the material question is whether plaintiff was indulged in dishonest abstraction of energy i.e. DAE and defendant has raised the impugned bill in accordance with law? In my view, the suit is not barred by rule 25 B of Delhi Electricity conditions and supply as alleged by the defendant. Issue is accordingly decided in favour of plaintiff.
13 Issue no.5:Whether the plaintiff is entitled to the relief of declaration as prayed for?(OPP) Suit no. 338/04 12 Issue no.6:Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?(OPP) In order to avoid repetition, both the issues are taken together for consideration. The main case of the plaintiff is that he was using the electricity within the permissible sanctioned load. As per inspection report, at the time of inspection, the connected load was within permissible limit of sanctioned load. The allegation of the inspection team was that IR seals were found torned and two number box(cable entry box) seals were found missing, but seal wire was in broken condition through which I/C cable was accessible . Ld.counsel for plaintiff submitted that dishonest abstraction of energy (DAE) has been defined in section 2(m) of the Performance Standard(Metering & Billing) Regulation 2002 which reads as under:
" 2(m) Dishonest abstraction of energy (DAE)"
shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral Suit no. 338/04 13 evidence is found to support the conclusion that the meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by consumer to cause the meter to stop or run slow (such as reversing the polarity of one phase of poly phase meters, changes in CT or PT etc)".
13(a) Ld.counsel for plaintiff relied on a case of Udham Singh Vs. BSES Rajdhani Power Ltd. 136(2007) DLT 500, Billa Gupta V/s.NDPL 134(2006 DLT 174, M/s.Modern Terry Towels Ltd. V/S.Gujarat Electricity Board AIR 2003 Gujarat 63, Jagannath Singh V/s.Ramaswamy AIR 1966 SC 489, Ram Chander V/s.State of Bihar AIR 1968 SC 349, J.K.Steelomelt Pvt.Ltd. Vs. BSES Rajdhani Power Ltd. 140 (2))7) DLT 563 and Bhasin Motors (I) Pvt.Ltd. V/s. NDPL 142 (2007) DLT 116. Ld.counsel for plaintiff submitted that it has been consistently held by the superior courts that mere broken seals does not prove the case of DAE. In order to make out a Suit no. 338/04 14 case of DAE, it is for the supplier to prove that in fact there was tampering in the internal status of the meter and there was collateral evidence to establish the theft of electricity. Ld.counsel for defendant submitted that as per testimony of DW1 and 2 neither the internal status of the meter was analyzed nor any collateral evidence was found nor photographs of the meter was produced before the court nor meter was analyzed by any laboratory. Therefore, there is no evidence to accept the allegations of theft of electricity. 13(b) Ld.counsel for defendant controverted the submissions, stating that IR seals were found in torned position. After careful consideration and in view of the law laid down in different cases relied by the parties, It is clear that in order to make out a case of theft of electricity, there should be strong material before the court to establish the fact of electricity theft. Merely by allegations of tampering of seals or torn seals, the theft can not be presumed. On the outer box of the meter, the paper seal Suit no. 338/04 15 may be torned in due course even without any mischief by any body. No collateral evidence has been produced before the court in any form to establish the case of theft of electricity. In view of the testimony of witnesses and submissions of Ld.counsels, in my view, defendant has failed to establish the allegation of theft of electricity.
13 ( c). Ld.counsel for defendant tried to impress upon the court that PW1 was not present at the spot and therefore, his testimony can not be relied. He also tried to make out a point that the valid MCD license in favour of user tenant was not produced and the fact that premises was being used by the tenant was never informed. I am not impressed with the contentions of Ld.counsel for defendant. Every case has its own facts. In the present case, the inspection report, show cause notice and impugned bill has been challenged. From the admitted version of defendant, there is no collateral evidence on record to accept the allegations of theft of electricity alleged Suit no. 338/04 16 by the defendant.
13(d ) In the light of the above findings, I am of the considered view that action of defendant is without reasonable grounds and the inspection report, speaking order and impugned bill suffers from the material illegality. In my opinion, plaintiff is entitled for the relief of declaration as well as relief of injunction. Issues are accordingly decided in favour of the plaintiff.
14 Relief:
In view of the above findings, the suit is decreed in favour of plaintiff and against the defendant in following terms.
a) Suit is decreed in favour of plaintiff and against the defendant and thereby it is declared that inspection report dt.15.6.04, notice dt.15.6.04, speaking order and final bill amounting to Rs.15,81,819/ is illegal, null and void and accordingly liable to be quashed.
Suit no. 338/04 17
b) Suit is decreed in favour of plaintiff and against the defendant and thereby defendant is restrained from disconnecting the electricity supply through K.No.32200734712 Q installed at A95/2, Wazirpur Indl.Area, Delhi on the basis of non payment of impugned bill of Rs.15,81,819/.
c) The amount deposited by plaintiff (if any) against the impugned bill in compliance of order of the court or otherwise be refunded to the plaintiff within 30 days of the judgment, failing which plaintiff will be entitled to interest @ 9% per annum from the date of decree till the realisation of the amount. Cost of the suit is awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to R/R. (SANJEEV JAIN) Addl.Dist.Judge(Central) Delhi Announced in open court on 18.01.10 Suit no. 338/04 18