Delhi District Court
Sh. Vikas Aggarwal vs North Delhi Power Ltd on 7 August, 2014
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE SENIOR DIVISION
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 102/14
ID No. 02401C0382372007
1.Sh. Vikas Aggarwal S/o Sh. B. N. Aggarwal at WZ752, Sudershan Park, Delhi.
2. Sh. Prem Parkash Chawla S/o late Sh. Hukum Chand Chawla at WZ7526, GF, Sudershan Park, Delhi. ............. plaintiffs vs. North Delhi Power Ltd.
Grid SubStation Building Hudson Line, Kingsway Camp, Delhi.
Through its CEO ............. defendant
Date of Institution of Suit : 13042007
Date of reserve for judgment : 19052014
Date of announcement of Judgment : 07082014
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Judgment :
1. The brief facts, as per plaint, are that the plaintiff no. 2 is registered consumer of electricity connection bearing K. No. 33300120395 J installed at WZ 7562, GF, Sudershan Park, Delhi and the plaintiff no. 1 took ground floor of the said property on rent on 08092005 from where the plaintiff no. 1 is running his unit on job work basis. That the official of the defendant had been visiting the aforesaid property regularly for noting down the meter reading and thereafter, the Suit No. 102/14 1/12 Vikas Aggarwal v/s NDPL bills are being raised by the defendant regularly and the defendant had been paying the same and there are no arrears of the aforesaid connection. That an inspection was conducted by the defendant's officials regarding the aforesaid connection on 28012006 in absence of both the plaintiffs and any of their authorized representative and only the workers of the plaintiff no. 1 were present in the factory at the time of said inspection. That the defendant's officials prepared inspection report in a most illegal and arbitrary manner and they leveled false allegation of theft of electricity and thereafter, they handed over the same to an employee namely Sh. Khet Singh who simply received the inspection report without knowing the contents of the same. However, he had not joined the said inspection nor he was asked by the inspecting team to join the inspection. That the defendant's officials falsely alleged that the meter box seals were tempered and they were not carrying an original monogram to compare it with the affixed seals. That the plaintiff has never tempered the meter or any of the seals and the same were in the same condition in which it was installed by the defendant and the seals are of plastic material and the same are temper proof. That the defendant falsely alleged that the meter was found slow by 65.01% and no accucheck was done by the defendant's officials in the presence of the plaintiffs neither any accucheck report has been given by the defendant nor any such alleged checking has been mentioned in the inspection report. That the meter was working properly and was recording proper consumption. That the inspecting team did not find any tempering to manipulate/ temper the consumption recording system of the meter in question and inspecting team was not to book any case of theft of electricity against the plaintiffs. That the defendant's officials have mentioned the connected load as 7.434 KW whereas the actual connected load was 6.007 KW and following energy consuming apparatus arbitrarily mentioned which were not at all connected with the electricity supply system and the rated capacity of some apparatus has been mentioned on higher side as under :
Suit No. 102/14 2/12Vikas Aggarwal v/s NDPL
E/F 2 X 180 W
E/F 1 X 1 HP
Cutting M/c 1 x 2 HP
Total 2.598 KW
Actual connected load =7.434 KW - 2.598 5% (tolerance) = 4.594 KW
2. That the plaintiff no. 1 also appeared in the personal hearing and made oral submissions. However, officer conducting personal hearing had handed over an already prepared theft bill of Rs.2,20,790/ to him. That, thereafter, the plaintiff no. 1 kept on visiting the office of the defendant and repeatedly pleaded that he had not committed any theft of electricity and theft bill is illegal and not payable. However, the defendant's officials again handed over another theft bill on 07092006 and the plaintiff no. 1 requested the defendant to withdraw the theft bill but in vain and the defendant's officials threatened him that the electricity supply would be disconnected if theft bill is not paid and that they will implicate him in a criminal case and he would have to suffer further even if he has not done anything. That the defendant's officials asked to deposit Rs.1,71,000/ in order to get the matter closed and plaintiffs were compelled and forced to accede to the demand of the defendant. That under such pressure, force and coercion the plaintiff paid Rs.85,000/ on 07092006. That after visiting Sh. Chandhok, he asked the plaintiff to deposit Rs.1,55,000/ in total to get the matter closed and the same has been mentioned in his own hand writing on the back of the original theft bill dated 0709 2006. That plaintiff no. 1 agreed to pay Rs.1,36,000/ as full and final settlement against the theft bill no. 9300005590. That the defendant's officials also issued bills for installments of Rs.26,000/ and Rs.25,000/, which the plaintiffs paid on 3101 2007 and 27022007 respectively and the plaintiffs have since paid Rs.1,36,000/ but the same payment was made under coercion and the defendant is not entitled Suit No. 102/14 3/12 Vikas Aggarwal v/s NDPL to the same and thus is liable to refund the amount of Rs.1,36,000/ paid by the plaintiffs under pressure and force. That the defendant is bound to deduct the units recorded by the meter from the assessed consumption, as per Regulation 30 of Billing and Metering Regulations, 2002 but the defendant had not deducted the consumption recorded by the meter. That the Hon'ble High Court of Delhi in W.P. (Civil) No. 6104 of 2006 titled as Bimla Gupta vs NDPL has also held that recorded units have to be deducted from assessed units while raising theft bills and as such the impugned bill is illegal. That on the alleged load and the actual connected load, the defendant could have raised the bill for the following units in the following manner :
Date of inspection : 28012006
Assessment period : 29072005 to 28012006
Alleged connected load : 7.43 KW5% (tolerance) = 7.06 KW
Actual connected load : 4.594 KW
Assessed consumption as per defendant's alleged connected load:
8.06 x 10 x 25 x 60% x 6 = 6355.8 units less: recorded consumption = 1860 units Net = 4495.8 units i.e. Rs.1,25,319/ Assessed consumption on acutal connected load :
4.59 x 10 x 25 x 60% x 6 = 4131 units less: recorded consumption = 1860 units Net = 2271 units i.e. Rs.63,300.71 Recorded consumption Reading on 28012006 = 13452 Less : reading on 08072005 = 11473 Balance = 2079 units for 204 days i.e. 1860 units for six months consumption Suit No. 102/14 4/12 Vikas Aggarwal v/s NDPL
3. That the defendant has raised the bill for 6690.6 units in most illegal and arbitrary manner. The plaintiff has prayed to pass a decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, its agents, servants, employees from disconnecting the electricity supply of the plaintiffs regarding K. No. 33300120395 installed at WZ7526, GF, Sudershan Park, Delhi for nonpayment of the balance amount of Rs.84,790/ of impugned electricity bill bearing no. EAC 9300005590 and pass a decree of mandatory injunction thereby directing the defendant, its agents, servants, employees to withdraw the impugned electricity bill no. EAC 9300005590.
4. WS filed on behalf of the defendant wherein it is stated in the preliminary objections that the plaintiff has not come to the court with clean hands and has suppressed the material facts from this Hon'ble Court. That the inspection was carried out on 28012006 at the premises in the presence of representative of the plaintiff who duly signed and received the inspection report and show cause notice dated 28012006 and at the time of inspection both blue plastic meter box seals no. 253859 and 253860 found tampered and refixed using adhesive and meter found slow by 65.01% as per acquacheck and thereafter, a case of DAE was booked. That the domestic connection was found to be used for industrial purposes and connected load was found to be 7.434 KW against the sanctioned load of 5.222 KW. That the average consumption was found to be 320.70 u/m against the computed consumption of 1309.50 u/m which is only 28.78% of the computed consumption. Hence DAE is, otherwise, also established. That a speaking order dated 22052006 was passed and dispatched on 26052006 and theft bill was raised and the same was fully payable by the plaintiffs. That plaintiff no. 1 has no locus to file the present suit as he is not the registered consumer of the subject connection. Hence, the suit is liable to be dismissed. Other averments Suit No. 102/14 5/12 Vikas Aggarwal v/s NDPL of the plaint have been denied as wrong.
5. From the pleadings of the parties, following issues were framed vide order dated 16022008 :
1. Whether the suit is not maintainable for want of prayer for a decree of declaration? OPD
2. Whether the plaintiff has not properly valued the suit for the purpose of court fee? OPD
3. Whether the plaintiff has no locusstandi to institute the present suit? OPD
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
5. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
6. Relief.
6. To substantiate their case, plaintiff no. 1 tendered his affidavit in evidence and examined as PW1 and he was crossexamined on behalf of the defendant. The plaintiffs also examined Sh. Khet Singh as PW2 and he was also crossexamined on behalf of the defendant. No other witness has been examined on behalf of the plaintiffs.
7. To prove its defence the defendant examined DW1 Sh. V. S. Verma and he was crossexamined on behalf of the plaintiff. Affidavit of Sh. Jagesh Kishore was tendered in evidence and he was partly crossexamined on behalf of the plaintiff on 05102011 and his further crossexamination was deferred for next date. Ld. Counsel for plaintiff was given opportunities to further crossexamine Suit No. 102/14 6/12 Vikas Aggarwal v/s NDPL DW2 Jagesh Kishore but he could not crossexamine him and his right for further crossexamination of DW2 was closed vide order dated 06022013 and case was adjourned for hearing final arguments. No other witness has been examined on behalf of the defendant.
8. I heard final arguments of ld. counsel for the plaintiff. I considered the arguments addressed by the ld. counsel for the plaintiff and evidence on record. My issuewise findings are here as under :
Findings on issue no. 1 : Whether the suit is not maintainable for want of prayer for a decree of declaration? OPD
9. The onus of proving of this issue is on the defendant. ld. Counsel for the defendant has not addressed final arguments. However, on perusal of WS, it is observed that in preliminary objection no. 2, it is stated that the plaintiff has not sought the relief of declaration in view of the law laid down in Sarjiwan Singh vs. DVB, reported as 110 (2004) DLT 633. The plaintiff has stated in his plaint that the theft bill of Rs.2,27,790/ prepared by the defendant is illegal. On the other hand, it is the defence of the defendant that the theft bill amount Rs.2,27,790 / has been prepared on the basis of the fact that the plaintiff was found committing dishonest abstraction of energy. Thus, it is clear that the plaintiffs were required to file suit for declaration seeking relief of declaration of the theft of Rs.2,27,790 / bill as null and void. Therefore, I am of the view that simplicitor suit for injunction without seeking relief of declaration regarding the theft bill is not maintainable. This issue is decided accordingly.
Findings on issue no. 2 : Whether the plaintiff has not properly valued the suit for the purpose of court fee? OPD
10. The onus of proving of this issue is on the defendant. The suit of the Suit No. 102/14 7/12 Vikas Aggarwal v/s NDPL plaintiffs is only for relief of permanent and mandatory injunction. Therefore, I am of the view that the plaintiffs have properly valued the suit for the purposes of court fee and requisite court fee has been paid. Therefore, it is held that the suit of the plaintiffs has been properly valued for the purposes of court fee. This issue is decided accordingly.
Findings on issue no. 3 : Whether the plaintiff has no locusstandi to institute the present suit? OPD
11. The onus of proving of this issue is on the defendant. It is stated by Sh. Vikas AggarwalPlaintiff no. 1 "that I am tenant on the first floor of the property no. WZ7562, GF, Sudershan Park, Delhi and the plaintiff no. 2 he is registered consumer of the electricity connection K. No. 33300120395 J installed in the suit property. As per inspection report Ex. PW1/1 and show cause notice Ex. DW1/2, Vikas Aggarwal was user of the electricity connection and registered consumer is Prem Prakash Chawla. Therefore, I am of the view that the plaintiff no. 1, being user of the electricity connection and Prem Prakash Chawla, being registered consumer of the electricity connection have locusstandi to file the present suit. This issue is decided accordingly.
12. This would be appropriate to decide issue nos 4 and 5 together. Therefore, my findings on issue nos. 4 and 5 are as under :
Findings on issue no. 4 : Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP and Findings on issue no. 5 : Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
13. PW1Vikas Aggarwal has admitted during his crossexamination that inspection was carried out on 28012006. It has proved that inspection dated Suit No. 102/14 8/12 Vikas Aggarwal v/s NDPL 28012006 is not in dispute. PW1 has admitted during crossexamination that he was given personal hearing. He has further stated that the electricity consumption regarding electricity connection bearing K. No. 33300146405 T installed at WZ 7562, GF, Sudershan Park, Delhi was according to actual load and its use as he was doing job work which affects consumption of electricity. The inspection report Ex. PW1/1 was prepared by the members of the team and during inspection both blue plastic meter box seals were found tempered and refixed using adhesive. These two seals were not replaced by other seals. Therefore, I am of the view that even if the members of the inspecting team were not having original monograms of these two seals, it does not make any difference as these seals were the same and there was no need of comparing the seals with the original monograms of these seals. The case of the defendant is that these two seals were there but these were tempered and refixed with adhesive, which proved that access to the main meter was made. I am also of the view that even if the plaintiff no. 1 or plaintiff no. 2 were not present during inspection, it does not make any difference in any manner. PW2 Khet Singh has admitted that he was present at the time of inspection on 28 012006 and the officials of the defendant came at the premises and checked the meter connection bearing K. No. 33300120395 J and he was not allowed to come near the meter and was asked to sit at the enterance gate. PW2Khet Singh has stated that the members of the team had checked the connection bearing K. No. 33300120395 J and meter was also checked but he was not allowed to come near to the meter. Therefore, it has been proved on behalf of the defendant that the inspection was carried out on 28012006 and connection meter was also checked. DW1V. S. Verma has stated in his affidavit that meter was checked by accucheck and it was found slow. As per inspection report Ex. PW1/1, the meter was found slow by 65.1%. It has come in evidence that neither the plaintiff no. 1 nor the plaintiff no. 2 were present at the spot, then how it can be said by the plaintiff no. 1 that the inspecting team was not having accucheck. PW2Khet Singh was present Suit No. 102/14 9/12 Vikas Aggarwal v/s NDPL during inspection but he has not stated that the inspecting team was not having accucheck. Therefore, I am of the view that there is no reason to reject the testimony of DW1V. S. Verma regarding checking of the meter box and of functioning of the meter and the fact that the meter was found slow by 65.1%. No reason has been shown/ cited by the plaintiff no. 1 as to why the inspecting team have falsely prepared the inspection report and why DW1 has deposed in the court. No previous enimity of the plaintiff with the officials of the defendant has been claimed to prepare a false case. There is no allegations that the members of the inspecting team had not inspected the premises and prepared the false report as or they had demanded bribe from the plaintiff which they refused. There is no reason to reject the testimony of DW1. Therefore, I am of the view that the testimony of DW1 is trustworthy and it is held that the two blue plastic meter box seals were tempered and refixed with adhesive and the meter was manipuplated to record the units slow and it has proved that the tempering was done by the user of the electricity connection bearing K. No. 33300120395 J.
14. DW2Jagesh Kishore has stated in para no. 3 of his affidavit that the consumption pattern was studied whereby average recorded consumption was found to be 320.70 u/m against the computed consumption of 1114.50 u/m which is only 28.78% of the computed consumption and the consumption pattern is Ex. DW 2/2. It is not the case of the plaintiffs that the recorded consumption was lesser because he had done lessor job work. Since, the recorded consumption of the user of the electricity connection was not uniform, which is less then the computed consumption, the fact, that the meter was slow stood corroborated by the consumption pattern.
15. It is submitted by the ld. Counsel for the defendant that the plaintiff no. 1 had approached for settlement of theft bill amounting Rs.2,20790/ for a sum Suit No. 102/14 10/12 Vikas Aggarwal v/s NDPL of Rs.1,71,000/ and he requested that he be allowed to pay Rs.85,000/ on 0709 2006 and balance of Rs.86,000/ shall be deposited on 11092006 and thereafter, he again requested for settlement for a Rs.1,36,000/ instead of Rs.1,71,000/ and submitted that he had already deposited Rs.85,000/ on 07092006 and requested for depositing balance of Rs.51,000/ in two installments of Rs.26,000/ and Rs.25,000/ on 31012007 and 27022007 respectively but no settlement arrived between the parties. It is further submitted that since the plaintiff no. 1 had himself settled the matter for a sum of Rs.1,71,000/ and had paid Rs.85,000/ out of it on 07092007, he is not entitled for relief of permanent injunction, as prayed on account of principle of estoppel. On the other hand, ld. Counsel for the plaintiff has submitted that he was compelled to accede to the demand of the defendant and had paid Rs.85,000/ on 07092006 under pressure.
16. I considered the submissions of ld. Counsel for the plaintiffs and ld. Counsel for the defendant as submitted above. There is no evidence on record that the plaintiff no. 1 had paid Rs.60,000/ on 07092006 under pressure, force and coercion. Photocopy of letter dated 07092006 duly signed by plaintiff no. 1 has proved that he had voluntarily agreed to settle the matter for a sum of Rs.1,71,000/ and had agreed to pay Rs.85,000/ on 7092006 and Rs.86,000/ on 11092006 and he had voluntarily deposited Rs.85,000/ on 07092006. Since the plaintiff no. 1 had settled the matter with the defendant for a sum of Rs.1,71,000/ without any pressure, force and coercion and had deposited Rs.85,000/ on 0709 2006 out of settlement amount without any pressure or coercion, I am of the view that now he can not challenge the provisional theft bill due to the principle of estoppel. Since, the dishonest abstraction of energy was being committed in respect of K. No. 33300120395 J which was being used by the plaintiff no. 1, there is no ground for giving directions to the defendant to withdraw the impugned electricity bill no. EAC 9300005590. Moreover, in view of my findings on issue no.
Suit No. 102/14 11/12Vikas Aggarwal v/s NDPL 1 to the effect that simplicitor suit for injunction without seeking relief of declaration regarding the theft bill is not maintainable, the plaintiff is not entitled for the relief of mandatory injunction, as prayed.
17. In view of the above discussions and reasons therein, it is held that the plaintiffs are not entitled for a decree of permanent injunction restraining the defendant, its agents, servants, employees from disconnecting the electricity supply of the plaintiffs regarding K. No. 33300120395 J installed at WZ7562, GF, Sudershan Park, Delhi for nonpayment of the balance amount of Rs.84,790// of impugned electricity bill bearing no. EAC 9300005590 and from taking any action on the basis of letter no. NDPL/EAC/13017/6222 dated 22032007. Moreover, in view of my findings on issue no. 1 to the effect that the suit is not maintainable for want of prayer of declaration, the plaintiff can not be granted relief of permanent injunction, as prayed.
18. In view of the foregoing discussions and reasons therein issue no. 4 and 5 are decided against the plaintiffs.
Relief
19. In view of my findings on all the issues as above, the suit of the plaintiff is dismissed. File be consigned to the record room after necessary compliance.
Announced in the open court on the 7th day of August, 2014 (CHANDRA BOSE) Civil JudgeSenior Division Central District, Delhi.
Suit No. 102/14 12/12Vikas Aggarwal v/s NDPL