Delhi District Court
Decree Holder vs BsesYamuna Power Limited on 12 January, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12
TIS HAZARI COURTS, DELHI.
Ex. No.: 304/11
Sh. Swaran Singh
.....Decree Holder
Versus
BSESYamuna Power Limited
.....Judgment Debtor
Application u/s 144 CPC
ORDER:
1. The decree holder (hereinafter 'DH') who has been successful in his suit for declaration, permanent and mandatory injunction which was decreed in his favour by the Court of Shri Sanjiv Jain, Ld. ADJ, Delhi, vide judgment and decree dated 29.11.2010; the inspection reports dated 18.11.2006 and 17.01.2007 had been declared illegal, invalid, ineffective and nullandvoid and so also the disconnection of electricity connection.
Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 1 of 15 2
2. Thus the decree holder claims that it has became entitled to the refund of Rs.1,67,167/ which it had deposited with the judgment debtor (hereinafter 'JD') to comply with the interim orders passed by the ld. court. It has also become entitled to interest thereon @ 18% per annum i.e. the same rate at which the JD charged its consumers for default in timely payment.
3. Opposition has been put to the application by the JD on the following averments:
(i). The decree holder was tendered a cheque for Rs. 1,85,133/ to cover the amount amount paid Rs. 1,67,167/ and costs of the suit of Rs. 17,135.25 but the decree holder refused to accept the same.
(ii). The claim as pressed into service by the DH is not covered by the decree and beyond its scope.
(iii). The Executing Court cannot travel beyond the decree.
(iv). Copy of the bill filed by DH does not bear the seal of the company regarding payment of the alleged amount.
4. Arguments have been addressed by Shri C. Kumar, ld. counsel for the decree holder. None came forward to address arguments on Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 2 of 15 3 behalf of the judgment debtor.
5. Ld. counsel for the decree holder submitted that the filing of the suit in which decree has been passed had been rendered necessitated due to illegal acts of the JD and to do complete and substantial justice the DH ought to be relegated to the same position that existed had the illegal acts not been done by the JD. Restitution is setting back the clock so that the wronged person is adequately compensated. Ld. counsel for DH has relied on the law pronounced in South Eastern Coalfields Ltd. Vs. State of MP and others AIR 2003 SC 4482. It is also argued that there are no fetters that the executing court cannot grant restitution. By no stretch of imagination restitution can tantamount to travelling beyond the decree.
6. I have considered the arguments and the material on record. Though no arguments have been addressed by the JD, I have considered the written reply of JD.
7. The case law relied upon by the DH is South Eastern Coalfields Ltd. Vs. State of MP and others AIR 2003 SC 4482 in which it has been held as under: Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 3 of 15 4 "The principle of restitution has been statutorily recognized in S.144 of the Code of Civil Procedure 1908. Section 144 of the CPC speaks not only a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the court the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless if feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, as to to wips out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 4 of 15 5 decision, the court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.
25. Section 144 of the CPC is not the fountain source of restitution; it is rather a statutory recognition of a pre existing rule of justice, equity and fair play. This is why it is often held that even away from S.144 of the court has inherent jurisdiction to order restitution as to do complete justice between the parties. In Jai Berham V.Kedar Nath Marwari (1922) 491.351, their Lordships of the Privy Council said' "It is the duty of the court under S.144 of the Civil Procedure Code to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reserved. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the court to act rightly and fairly accordingly to the circumstances towards all parties involved. Cairns, L.C. said in Rodger V. comptoir D'Escompte de Paris (1871) L. R. 3P.C.:
"One of the first and highest duties of all courts is to take care that the act of the court does not injury to any of the suitors and when the expression, the act of the court is used, it does not mean merely that act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 5 of 15 6 entertains jurisdiction over the matter upto to the highest court which finally disposes of the case. " This is also on the principles that a wrong order should not be perpetuated by keeping it alive and respecting it. A. A. Nadar V.S.P. Rathinasami (1971) 1 MLD 220. In the exercise of such inherent power the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of S.144.
26. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the curt may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. The quantum of restitution depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made." Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 6 of 15 7
8. It is a matter of record that on 26.08.2011 JD tendered to the decree holder a cheque for Rs. 1,85,133/ to cover the amount of paid Rs. 1,67,167/ as part of payment of the bill raised by the JD as per the interim directions of the Court and also costs of the suit of Rs. 17,135.25. The same was accompanied with a condition that the DH while accepting the same must acknowledge the satisfaction of the decree. DH was prepared to accept the same without succumbing to the condition imposed. Thus no fault can be found with the DH on this aspect. Moreover, the money has remained with the JD and has not passed on to the DH.
9. The JD has taken a fanciful stand that the copy of the bill filed by DH does not bear the seal of the company regarding payment of the alleged amount. The JD should ask a question to itself--Whether it prepared the cheque for Rs. 1,85,133/ in favour of the DH without satisfying itself as to the receipt of the payment? Moreover, why it kept silent throughout the trial if the DH had not deposited the amount in terms of the interim orders passed by the Court? This argument of JD, on the face of it, is an art for art's sake argument.
10. In view of the law laid down by Hon'ble Supreme Court in Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 7 of 15 8 South Easterm Coalifields Ltd. Vs. State of M.P. (supra), it is manifest that the raison d'etre of the doctrine of restitution of enshrined in section 144 CPC is to ensure complete justice between the parties, so that due to the orders of the court one or the other party may not gain any undue advantage or unjust enrichment.
11. It is crystallized on record that an amount of Rs. 1,67,167/ was deposited by the DH in compliance of the interim injunction order passed by the court to save the disconnection of the electricity connection during the pendency of the suit. The amount was deposited in three instalments on 31.05.2007, 30.06.2007 and 25.07.2007 and till date the said amount is being used by the JD though in view of the judgment and decree under execution the JD is not entitled to it. The use of the said money is sans JD's right or entitlement. Despite the judgment been passed on 29.11.2010 the said amount is still eluding the DH. Even when the JD tendered a cheque equivalent to the said amount in the Court it tagged the same with a condition that the DH must accept the same as full and final satisfaction of the decree under execution. The DH refused to toe the line without vindication of his right to restitution.
Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 8 of 15 9
12. The stand as taken by JD in refusing to afford restitution to the DH is nothing but a monopolistic stand. No one can be permitted to eat the cake and have it too. JD has enjoyed the amount for a considerable period and ostensibly made a profit out of it. Ultimately vide judgment and decree dated 29.11.2010 it is manifest that JD is not rightfully entitled to it. The judgment has attained finality and no challenge to the same has been reported by the JD. There is no reason or justification demonstrated before me that it should not restore the benefit to the DH.
13. I am unable to agree with the contention of JD that the restitution as prayed by the DH would amount to travelling behind the decree. Litigation brings with it various costs for a hosts or reasons. There are direct monetary costs which are apparent on the face of it like Lawyer's fee, travelling expenses, typing charges, court fee etc. But there are latent costs like the mental agony and torture; the expense of time in attending the court proceedings and various innumerable factors which all cannot be enlisted here. These non monetary costs are sometimes very heavy.
14. Looking at the case in hand, the DH had to rush to the court Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 9 of 15 10 post haste fearing disconnection of energy on account of inspection report. The JD had enjoyed a monopoly. There was no option available to the DH to change the service/utility (electricity) provider. It was only a 'take it or leave it' choice. However the inspection report(s) of JD could not withstand the scrutiny of law and were declared nullandvoid. There is no reason available to me why restitution should not be allowed when the stand of the DH has been vindicated.
15. It is axiomatic to say that law must bend before justice. Thus keeping in view the principles of justice, equity and fair play DH is entitled for the interest on the aforesaid said amount.
16. The next question is at what rate? Ld. counsel for DH submitted that 18% interest is being charged by the JD co. on the amount due against the consumer and therefore, on the same principle, they are liable to pay interest @ 18% per annum.
17. I do not agree with the submission of the DH on this aspect. The business of JD is only to distribute electricity. It is not in the business of money lending. The interest charged by it @ 18% per annum is only from the defaulters who fail to pay their bills in time. This is Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 10 of 15 11 intended to ensure as a kind of deterrence against nonpayment. For the consumers who pay their utility bills in time, there is no penalty. Thus it is not the business of the JD to earn income on account of penal interest charged from defaulters, the only object that the penalty should be a sufficient deterrent for the consumers not to default in timely payment and the ostensible objective of the same is that fund flow should be ensured for the JD so that it does not default in its financial commitments.
18. It is the duty of the court to balance the rights of both the parties. Justice to one party should not perpetuate injustice to the other party.
19. It is not possible to determine the entire costs suffered by the DH with mathematical accuracy or scientific precision. Guided by the law laid down by Hon'ble Supreme Court in South Easterm Coalifields Ltd. Vs. State of M.P. (supra), and taking cognizance of the various monetary and nonmonetary factors of costs suffered by the DH, and also taking stock of the contemporary rates of interest in the banking business, and last but not the least considering the totality of facts and circumstances of the case and the interests of justice, in Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 11 of 15 12 my view the ends of justice will be served if DH be allowed the simple rate of interest 12% per annum from the date of deposit of respective instalments till the date of actual payment by the JD of the entire amount due under the decree with uptodate interest as awarded above. It is therefore ordered accordingly and compliance be made by the JD within two months of the passing of this order.
20. The JD can consider recovering the interest so payable/paid from its erring employee(s). Hon'ble the Supreme Court of India in Lucknow Development Authority vs. M. K. Gupta AIR 1994 SC 787 has held as under:
"11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socioeconomic outlook. The authority empowered to function under a Statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 12 of 15 13 performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the (street is) made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same? It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant are over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 13 of 15 14 directs payment of damages or compensation against the State the ultimatesufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund 'immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries."
21. As the JD is a company, its corpus is made up of shareholders' money. How can a member of public be compensated with the money which is the trust money of the shareholders at large? This would tantamount to a double wrong. Therefore, it is directed that the interest as imposed above be paid to the DH at the first instance by the JD and JD may recover the same from the salary of the official(s) in default.
22. Application u/s 144 CPC and execution petition is accordingly Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 14 of 15 15 disposed of with the above directions. The DH would be entitled to revive the instant execution petition in case of noncompliance of payment by the JD within two months from the date of this order.
23. File be consigned to the Record Room.
Announced in the Open Court On 12th day of January 2012 (MAN MOHAN SHARMA) ADJ (Central)12, Delhi Ex. No. 304/2011 Swaran Singh vs. BSES Yamuna Power Limited Page 15 of 15