Delhi District Court
Kailash Chand Aggarwal @ Kailash Gupta vs Bses Rajdhani Power Ltd on 29 March, 2014
Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No. : 80/08
Unique Case ID No : 02401C0284312008
In the matter of:
Kailash Chand Aggarwal @ Kailash Gupta
S/o Sh.Raghunath Prasad Aggarwal
R/o LSC 15, Block No.8 & 13, Dakshimpuri,
New Delhi-110062 .............. Plaintiff
Versus
1. BSES Rajdhani Power Ltd
BSES Bhawan
Nehru Place,
New Delhi-110019
Through its Managing Director
2. Anwar Husain
Shop No.1, Block No.8 & 13,
Dakshinpuri,
New Delhi-110062 ................ Defendants
Date of institution of the Suit : 25.02.2008
Date on which order was reserved : 29.03.2014
Date of decision : 29.03.2014
SUIT FOR PERMANENT INJUNCTION, MANDATORY INJUNCTION AND
DAMAGES
JUDGMENT
1) Present suit was filed in the year 2008 seeking a decree directing the defendant no.1 to disconnect the new electricity connection installed by it for the benefit of defendant no.2 in premises i.e shop no. 1, Block No.8 & 13, Dakshinpuri Extension, New Delhi-110062, to produce entire documents filed by the defendant no.2 alongwith application for taking the 1/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd new electricity connection which has been installed at the premises of plaintiff, directing the defendant no.1 not to install any electricity connection in the name of defendant no.2 or in any other name for the benefit of defendant no.2 till payment of the electricity consumed by him as well as charges standing against electricity connection bearing K.No. 25110B020035 Book No. 0B02 and directing the defendant no.1 and 2 to pay damages to the plaintiff @ Rs. 10,000/- each per month since October 2007 till payment by the defendant no.1 and defendant no.2 alongwith costs.
2) It is averred in the plaint that the plaintiff is the owner/ lessor of property bearing shop no.1 in Block No.8 & 13, Dakshinpuri Extension, New Delhi as shown in red colour in the site plan, that the plaintiff first let out the shop no.1 as shown in black to the defendant no.2 in January 2004 at a monthly rent of Rs. 3600/- excluding electricity which was separately fixed at Rs. 1800 per month, that at the request of defendant the remaining half portion of the aforesaid shop as shown in green colour was also given to the defendant no.2 in January 2005 & total rent of the premises shown in black & green colour was agreed to be Rs. 6500/- per month with revised electricity charges from Rs. 1800 to Rs. 3,000/-, that the rent of the said premises was later on increased to Rs. 7500/- per month excluding electricity & other charges, that the defendant no.2 despite repeated requests never paid or tendered the electricity charges as alleged since January 2006 to the February 2007, that the defendant no.2 was solely consuming the electricity from CRN No. 2510097905 New K.No.25110B020035, Book No. 0B02 & with malafide intention did not pay the electricity charges since January 2006, that the defendant no.1 after serving notice disconnected the electricity on 27.04.2007 on the grounds of 2/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd non-payment of rent, that subsequently defendant no.2 and 1 colluded with each other as the defendant no.2 without making any payment towards the electricity dues which had mounted to Rs. 75,000/- forged the paper like NOC, affidavit, power of attorney etc on behalf of the plaintiff and submitted the same in the office of the defendant no.1 alongwith application no. N251107070304 dated 07.07.2007 to get a new connection, that the defendant no.2 though a tenant in the suit property in his application for new meter connection intentionally gave the address as 8/15, Dakshinpuri Extension, New Delhi-62 which is owned by one Sh. Nanak Chand and wherein the defendant no.2 had never been a tenant, that the defendant no.1 being in collusion with defendant no.2 without even verifying the documents and address or the earlier dues installed the new electricity connection at the suit premises on 26.10.2007, that the defendant no.1 did not take any action either for disconnecting the connection or against the defendant no.2 for filing forged and fabricated documents for procuring the alleged connection despite several complaints, visits and follow up made by the plaintiff, that acts of both the defendants are illegal as defendant no.2 not only avoided the payment of the electricity consumed by him but also forged and fabricated documents beside making false statement for taking new connection, that the defendant no.1 in collusion with defendant no.2 installed a new electricity connection without verifying the documents and even the address where they were installing the new connection, that the documents submitted by the defendant no.2 to defendant no.1 contain false statement and are forged as the plaintiff has neither given any NOC nor power of attorney to defendant no.2 in his favour, that the new connection has been installed at the premises of the plaintiff whereas the address given by defendant no.2 in his fabricated application is of the shop that belonged to Sh. Nanak 3/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd Chand, that the defendant no.2 has no legal right to keep and take new electricity connection in the premises of the plaintiff in the aforesaid manner and defendant no.1 is under legal obligation to disconnect the electricity connection, that the conduct of defendant no.2 of making false statement, fabricating and forging documents and taking electricity connection in such fraudulent manner at the premises of the plaintiff and the conduct of the defendant no.1 in providing the electricity connection to defendant no.2 at the premises of the plaintiff without verification of the documents and the address has caused a quite mental agony and torture to the plaintiff which was further aggravated due to the callous and indifferent attitude of the defendant no.1 in not taking any action despite complaints of the plaintiff to that effect and that the defendants are both liable to pay damages to the plaintiff @ Rs. 10,000/- per month each for causing mental agony and torture to the plaintiff since October 2007.
It is further averred that the cause of action arose in favour of the plaintiff when the defendant no.2 did not pay electricity charges consumed by him through K.NO. 25110B020035 since January 2006, it further arose when defendant no.2 despite repeated reminders from defendant no.1 did not pay the electricity charges and electricity connection was disconnected, it further arose when the defendant no.2 filed the suit no. 124/07 making false allegations, it further arose when the defendant no.2 forged and fabricated documents seeking electricity connection and defendant no.1 installed the connection without verifying the same, it further arose when defendant no.1 installed the connection at wrong address and it further arose when defendant no.1 did not take action on the complaints dated 31.10.2007 and 03.11.2007.
3) It is averred in the written statement filed on behalf of defendant that 4/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd the present suit filed by the plaintiff is not maintainable and the same is liable to be dismissed as the plaintiff has not approached the Hon'ble Court with clean hands and has suppressed the material facts and that the payment of Rs. 30,000/- was received on 30.03.2006 against the outstanding dues of Rs. 42,838.69/- in respect of connection bearing K.No. 25110B022235. It is denied that the defendant no.2 and 1 colluded with each other. However, it is submitted that the meter against application No. N-25110707304 dated 07.07.2007 was installed in the name of M/s Sh. Anwar Hussain on 30.10.2007 after completion of all required necessary commercial facilities as prescribed in DERC Regulations. It is submitted that the documents have been submitted by the defendant no.2 in the office of defendant no.1 and if any document has been forged by the defendant no.2 then defendant no.2 is responsible for the same. It is denied that the defendant is liable to pay a sum of Rs. 10,000/- per month to the plaintiff for causing mental agony and torture. It is further submitted that no cause of action ever arose in favour of the plaintiff and against defendant no.1.
It is averred in the written statement filed on behalf of defendant no.2 that present suit is not maintainable against defendant no.2 and that the Hon'ble Court is not the appellate authority to look into the affairs of day to day working of defendant no.1 and administrative power exercised by defendant no.1. It is denied that the defendant no.2 had taken half portion of shop @ Rs. 3600/- per month from the plaintiff alongwith electricity charges @ Rs. 1800 per month. It is submitted that the plaintiff has taken the premises on rent at a rent of Rs. 700/- per month including electricity charges. It is denied that the remaining part of the shop was taken by answering defendant and total rent was agreed to be Rs. 6500/- per month since January 2005, that the electricity charges were revised from Rs.
5/14Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd 1800/- to Rs. 2000/- per month, that the rent of the premises was increased to Rs. 7500/- since October 2006, that the defendant no.2 was paying monthly rent of Rs. 3700 to Mr. Ram Dutta Sharma and that defendant no.2 had not paid electricity charges since January 2006 and rent since February 2007. It is submitted that the defendant no.2 is using only a portion of the shop and rest of the premises is being used by the plaintiff for running Atta Chakki and other shops in the premises, that the plaintiff is himself responsible for the disconnection of electricity connection as the same was disconnected due to non payment of electricity dues by the plaintiff. It is denied that the defendant no.2 had obtained the electricity connection by making false statements or by fabricating and forged documents and that cause of action ever arose in favour of the plaintiff.
4) In replication filed on behalf of the plaintiff to written statement of defendant no.2 only, all the contrary contentions of the defendant were denied by the plaintiff and the contents of the plaint were re-affirmed.
5) Vide order dated 16.02.2010 passed by the Ld. Predecessor Court the defence of the defendant no.1 was struck off.
6) On the basis of the pleadings of the parties following issues were framed on 16.02.2010 by the Ld. Predecessor Court.
1) Whether the plaintiff is entitled to the mandatory injunction directing the defendant no.1 to disconnect electricity connection of the defendant no.2 installed in the suit premises? OPP.
2) Whether the plaintiff is entitled to the relief of permanent injunction restraining defendant no.1 from installing any new connection in the name of the defendant no.2 as prayed? OPP.
3) Whether the plaintiff is entitled to damages from the defendant 6/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd no.1 and 2 as prayed for? OPP.
4) Relief.
7) Plaintiff led evidence in order to establish his case who examined himself as PW-1 by filing evidentiary affidavit Ex. PW-1/A and relied upon the following documents i.e Site Plan exhibited as Ex. PW-1/1, General Power of Attorney exhibited as Ex. PW-1/2(OSR), copy of complaint dated 31.10.2007 and 03.11.2007 exhibited as Ex. PW-1/3 (OSR) and Ex. PW1/4(OSR) and the acknowledgment and assurance given by the defendant no.1 dated 03.11.2007 exhibited as Ex. PW-1/5(OSR). The said PW-1 was discharged after being cross examined on behalf of both the defendants. Thereafter, the plaintiff's evidence was closed on recording of plaintiff's statement. The Defendant No.2 examined himself as D2W1 by filing evidentiary affidavit Ex. D2W1/A who was partly cross examined and his evidence was closed by Ld. Predecessor Court on 11.07.2013 directing that his evidence will not be read as defendant no.2 did not appear for further cross examination despite various opportunities. As defence of defendant no.1 had already struck off, defence evidence was closed for both the defendants by the Ld. Predecessor Court on 11.07.2013 and matter was fixed for final arguments.
8) I have carefully gone through the material available on record and heard the arguments advanced by Ld. Counsel for parties. The issue wise findings are as under:-
Issue No.1 Whether the plaintiff is entitled to the mandatory injunction directing the defendant no.1 to disconnect electricity connection of the defendant no.2 installed in the suit premises? OPP.7/14
Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd Issue No.2 Whether the defendant no.2 is entitled to the relief of permanent injunction restraining defendant no.1 from installing any new connection in the name of the defendant no.2 as prayed? OPP.
Issue No.3 Whether the plaintiff is entitled to damages from the defendant no.1 and 2 as prayed for? OPP.
All the issues no.1 to 3 are being decided together as they are interconnected. Onus to prove all the aforesaid issues was on the plaintiff who deposed in the evidentiary affidavit Ex. PW- 1/A in tune with the plaint that he is the owner/ lessor of the property bearing no. 1, Block No.8 and 13, Dakshinpuri Extension, Delhi, that he had first let out half of his aforesaid shop to defendant no.2 in January 2004 at a sum of Rs. 3600 per month excluding electricity and other charges which were fixed separately at Rs. 1800/- per month, that at request of defendant no.2 half of the remaining portion of the aforesaid shop was given to defendant no.2 in January 2005 and the total rent of the premises was agreed at Rs. 6500/- per month excluding electricity and other charges which was also revised from Rs. 1800 to Rs. 3000 per month and the rent of the said premises was later on increased to Rs. 7500/- per month excluding electricity and other charges, that the defendant no.2 despite repeated requests never paid or tendered the electricity charges as alleged since January 2006 to the February 2007, that the defendant no.2 was solely consuming the electricity from CRN No. 2510097905 and with malafide intention did not pay the electricity charges since January 2006, that the defendant no.1 after serving notice disconnected the electricity on 27.04.2007 on the grounds of non-payment of rent, that subsequently defendant no.2 and 1 colluded with each other as the defendant no.2 without making any payment towards the electricity dues which had mounted to Rs. 75,000/-8/14
Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd forged the paper like NOC, affidavit, power of attorney etc on behalf of the plaintiff and submitted the same in the office of the defendant no.1 alongwith application no. N251107070304 dated 07.07.2007 to get a new connection, that the defendant no.2 though a tenant in the suit property in his application for new meter connection intentionally gave the address as 8/15, Dakshinpuri Extension, New Delhi-62 which is owned by one Sh. Nanak Chand and wherein the defendant no.2 had never been a tenant, that the defendant no.1 being in collusion with defendant no.2 without even verifying the documents and address or the earlier dues installed the new electricity connection at the suit premises on 26.10.2007, that the defendant no.1 did not take any action either for disconnecting the connection or against the defendant no.2 for filing forged and fabricated documents for procuring the alleged connection despite several complaints, visits and follow up made by the plaintiff, that acts of both the defendants are illegal as defendant no.2 not only avoided the payment of the electricity consumed by him but also forged and fabricated documents beside making false statement for taking new connection, that the defendant no.1 in collusion with defendant no.2 installed a new electricity connection without verifying the documents and even the address where they were installing the new connection, that the documents submitted by the defendant no.2 to defendant no.1 contain false statement and are forged as the plaintiff has neither given any NOC nor power of attorney to defendant no.2 in his favour, that the new connection has been installed at the premises of the plaintiff where as the address given by defendant no.2 in his fabricated application is of the shop that belonged to Sh. Nanak Chand, that the defendant no.2 has no legal right to keep and take new electricity connection in the premises of the plaintiff in the aforesaid manner and defendant no.1 is under legal obligation to disconnect the 9/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd electricity connection, that the conduct of defendant no.2 of making false statement, fabricating and forging documents and taking electricity connection in such fraudulent manner at the premises of the plaintiff and the conduct of the defendant no.1 in providing the electricity connection to defendant no.2 at the premises of the plaintiff without verification of the documents and the address has caused mental agony and torture to the plaintiff which was further aggravated due to the callous and indifferent attitude of the defendant no.1 in not taking any action despite complaints of the plaintiff to that effect and that the defendants are both liable to pay damages to the plaintiff @ Rs. 10,000/- per month each for causing mental agony and torture to the plaintiff since October 2007.
In the cross examination the plaintiff firmly testified that remaining half portion of the shop no.1 was also given to the defendant no.2 in January 2005 which shows that the defendant no.2 is a tenant of the plaintiff in the suit shop as averred in the evidentiary affidavit and plaint. The plaintiff firmly denied the suggestions of the defendants thereby affirming his version. The defendant no.2 got it affirmed by the plaintiff during his cross examination that in the suit no. 124/2007 the defendant had admitted that he was the only person who was consuming electricity in the property bearing no. 8/15 followed by unrebutted voluntary clarification that the property bearing no. 8/15 has been wrongly described by defendant no.2 in that suit and that it is none other than his shop no.1 which has been given on rent to defendant no.2 which shows that the plaintiff has been able to establish that the defendant no.2 was his tenant in the suit premises who was solely consuming the electricity in the said premises. The deposition of the plaintiff that he asked the defendant no.2 orally to pay the electricity dues has gone unrebutted amounting to its admission on behalf of defendant no.2. The aforesaid unrebutted 10/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd testimonies show that the defendant no.2 is liable to pay the electricity dues as he was consuming the same in the capacity of a tenant which he did not pay. The plaintiff firmly testified that he had paid the electricity bill till the time he was using the electricity which has also gone unrebutted amounting to its admission by the defendant no.2 which further substantiates that the defendant no.2 and not the plaintiff was liable to pay the alleged dues. It thus substantiates the plaintiff's case that the electricity was disconnected by defendant no.1 for non-payment of the dues of the power consumed by defendant no.2 which further probablizes the case of the plaintiff. Furthermore, it is admitted by the defendant no.2 in the written statement that he had obtained the alleged electricity connection in the suit premises by giving the correct address as per his knowledge. So, the factum of installation of the electricity meter by the defendant no.2 by giving an address different from that of the suit premises stands established as it is beyond imagination that defendant no.2 was not having the knowledge of the correct address of the suit premises which implies that defendant no.2 deliberately concealed the correct address and obtained the connection by furnishing wrong address. The deposition of the plaintiff that the defendant no.1 in collusion with defendant no.2 installed a new electricity connection without verifying the documents and even the address where they were installing the new connection, that the documents submitted by the defendant no.2 to defendant no.1 contain false statement and are forged as the plaintiff has neither given any NOC nor power of attorney to defendant no.2 in his favour, that the new connection has been installed at the premises of the plaintiff whereas the address given by defendant no.2 in his fabricated application is of the shop that belonged to Sh. Nanak Chand has gone unrebutted as no suggestion negating the same was put to the plaintiff on behalf of defendant no.1 or 11/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd defendant no.2 amounting to its admission by the said defendant. It indicates that the new connection has been installed in the premises of the plaintiff without his permission as well as without verification of the address which in itself reflects malafides on behalf of defendant no.2 who is the tenant and defendant no.1 also.
Perusal of the record reveals that the defence of defendant no.1 was struck off by the Ld. Predecessor Court under order 11 rule 21 CPC on 16.02.2010 for not producing the documents sought by the plaintiff in respect of the connection obtained by defendant no.2. It is also apparent that right of the defendant no.2 to lead evidence was closed vide order dated 11.07.2013 as he did not appear for further cross examination despite various dates/ opportunities and it was directed that his evidence will not be read. So, in effect there is no defence evidence at all on behalf of any of the defendants which means that the plaintiff's version goes uncontroverted and unrebutted. Furthermore, the failure of the defendant no.1 to produce the documents in respect of the alleged connection and the fact that no plausible explanation for non-production had been given indicates that something is fishy in the manner in which the alleged connection was installed in the premises of the plaintiff which probablizes the plaintiff's version that the defendant no.1 in collusion with defendant no.2 installed a new electricity connection without verifying the documents and even the address where they were installing the new connection and that the documents submitted by the defendant no.2 to defendant no.1 contain false statement and are forged as the plaintiff has neither given any NOC nor power of attorney to defendant no.2 in his favour. Thus, it stands established that the defendant no.1 has installed the electricity connection of defendant no.2 at the suit premises in an illegal and arbitratory manner which infringes with the rights of the plaintiff being 12/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd owner of the suit premises thereby entitling the plaintiff to the relief of injunction as sought. So, in view of the afore-discussed consistent testimony of the plaintiff and the omissions on the part of the defendants, the issue no.1 that plaintiff is entitled to the mandatory injunction directing the defendant no.1 to disconnect electricity connection of the defendant no.2 installed in the suit premises and issue no.2 that defendant no.2 is entitled to the relief of permanent injunction restraining defendant no.1 from installing any new connection in the name of the defendant no.2 at the suit premises till payment of electricity consumed by him, are decided in favour of the plaintiff and against the defendants.
The plaintiff has not explained the manner and basis on which he is making a claim of Rs. 10,000/- per month on each defendant as damages towards mental agony and harassment as neither any document substantiating the expenses incurred, if any, for avoiding the said mental agony and harassment have been filed nor any other evidence has been led to justify the aforesaid claim.
The omission on the part of the plaintiff to substantiate his claim of damages based on the aforesaid allegations by furnishing any document i.e medical record etc or other consistent evidence render his claim as vague and bald which can not be believed in the present facts. It thus shows that the plaintiff has failed to raise a preponderance of probability showing that the illegal act on the part of the defendants has caused great mental, physical harm and agony to the plaintiff which further renders the plaintiff's claim of damages alongwith interest thereon as nugatory. So, in view of the aforesaid discussion, this Court is not inclined to grant the relief of damages towards mental agony and harassment as claimed by the plaintiff. In view of the aforesaid omissions on the part of the plaintiff the 13/14 Kailash Chand Aggarwal @ Kailash Gupta Vs BSES Rajdhani Power Ltd issue no.3 that the plaintiff is entitled to damages from the defendant no.1 and 2 is thus decided in favour of the defendants and against the plaintiff.
Issue No.4 Relief In view of the findings on the issue no. 1 and 2, suit of the plaintiff is partly decreed whereby Defendant no.1 is directed to disconnect electricity connection of the defendant no.2 installed in the suit premises and is further restrained from installing any new connection in the name of the defendant no.2 in the suit premises till payment of electricity consumed by him.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (VIPLAV DABAS)
today i.e on 29.03.2014 CJ-11/CENTRAL/DELHI
29.03.2014
14/14