Delhi District Court
New Delhi Municipal Council vs World Agriculture Fair Memorial Trust on 27 August, 2012
Suit No. 947/2005
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 947/2005
New Delhi Municipal Council
Palika Kendra,
Parliament Street,
New Delhi
Through :
Its Director (Commercial)
Sh. S.M. Ali
..............Plaintiff
Versus
1. World Agriculture Fair Memorial Trust,
DBlock, Connaught Place,
New Delhi.
2. Ms. Sudesh Kumari
DBlock, Connaught Place,
New Delhi.
...........Defendants
Date of institution : 13.10.2005
Arguments heard on : 26.07.2012
Date of decision : 27.08.2012
JUDGMENT: This is a suit for recovery of Rs 85,587/. The brief facts as NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 1/13 Suit No. 947/2005 averred in the plaint are as follows:
1. Plaintiff is a statutory body constituted under New Delhi Municipal Council Act, 1994 and Shri S.M. Ali, Director (Commercial) being head of the Department is duly authorized to sign, verify and institute the present suit on behalf of the plaintiff. Defendant no. 1 is the registered consumer of water vide consumer No. 1006712 vide water connection No. S8990, bill no. P15411871006713 and defendant no. 2 is the actual user of water connection. Plaintiff has been issuing the bills of water consumption in the name of defendant no. 1. In spite of regular bills issued in favour of defendant no. 1, the defendant no. 1 made the last payment on 11.04.2002 i.e the satisfaction of demand raised upto billing cycle March, 2002 and thereafter no payment was received from the defendant no. 1 and an amount of Rs. 1,20,587/ is due for the bill cycle of May, 2002 till January, 2005. Plaintiff issued and served 15 day demand notice upon the defendant no. 1 requiring defendant no. 1 to make the payment within stipulated period of notice but neither any reply nor any payment was received from the defendant no. 1. Thus the water connection/supply was disconnected on 28.12.2004 due to non payment of water consumption charges. Defendant no. 2 being actual consumer and tenant of defendant no. 1 filed a petition under Section 45 of DRC NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 2/13 Suit No. 947/2005 Act against the defendant no. 1 and the plaintiff which was listed before the Hon'ble Court of Shri Sanjeev Aggarwal, ARC, Delhi vide petition No. 6/05 titled as Ms. Sudesh Kumar Sharma Vs. world Agriculture Fair memorial Trust and NDMC. On 11.03.2005, the Ld. Court directed the defendant no. 2 to deposit Rs 35,000/ with the plaintiff pertaining to water connection No. S8990 registered in the name of defendant no. 1 within 15 days from the date of order and thereafter defendant no. 1 issued No Objection Certificate in the name of defendant no. 2. Consequently defendant no. 2 deposited Rs 35,000/ on 28.03.2005 and same has been credited in the name of defendant no. 1. A sum of rs 85,587/ suit stands due and recoverable from the defendants which the defendants have not paid in spite of repeated reminders.
2. Therefore, plaintiff has filed the present suit praying that a decree of Rs 85,587/ be passed in favour of the plaintiff and against the defendants jointly and severally along with pendentelite interest @ 24% p.a from the date of institution of the suit till its realization.
3. In the written statement filed by defendant no. 1, it is stated that there are more than two users of water connection but the plaintiff never inquired as to how many consumers there are and the ratio of consumption of water by each consumer. Hence the plaint is liable to be NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 3/13 Suit No. 947/2005 dismissed.
It is stated that defendant no. 1, World Agriculture Fair Memorial Trust, Farmers' trust Society is a charitable society registered under the Societies Registration Act, 1960. The aims and objects of the society include financing projects and activities of Bharat Krishak Samaj. Defendant no. 1 had purchased the property at DBlock, Cannought Place for discharge of its activities to achieve the aims and objects of the society. Before the building was handed over to the Society, some portions thereof comprising some small shops and one residential flat had already been leased to certain people. These lessees continued to occupy their allotted shops etc. The World Agriculture Fair Memorial Trust being a charitable institution and there being a number of lessees in the building, desired not to get involved in avoidable administrative work and possible disputes pertaining to water, electricity supply, billing etc. Therefore, defendant no. 1 through its then Trust Secretary, Jagdeesh Kodesia informed the lessees by a letter dated 02.05.1994 that they should get installed separate water supply connections in their own names from the NDMC and for facilitating this a No Objection Certificate as required by the Council was issued to them. They were subsequently reminded by letters dated 19.04.1997 and 05.07.1999. NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 4/13 Suit No. 947/2005 But several lessees continued to draw water from the water connection sanctioned in the name of defendant no. 1. NDMC sent a bill for water consumed amounting to Rs 2,00,953/ for 9 years from 199495 to 200203. In the defendant no. 1's letter dated 14.07.2003 all the 8 actual consumers of water from that connection were requested to pay their proportionate share of the bill to reimburse the World Agriculture Fair Memorial Trust of the payment made by it in good faith in the interest of consumers to avoid disconnection of water supply. In the meantime another bill for water charges amounting to Rs 1,20,587/ for the period May, 2002 to January, 2005 was received. However, the consumers did not made any payment towards this bill also. The NDMC disconnected the water supply on 28.12.2004. After the water supply was disconnected, one of the consumers defendant no. 2 herein who is occupying one residential flat filed a petition before the Hon'ble rent Controller, Delhi for restoration of water supply. As stated in the plaint, Ld. ARC, Delhi ordered the defendant no. 2 to make a deposit of Rs 35,000/ after which defendant no. 1 would give a No Objection Certificate to her for getting a separate connection. Even though defendant no. 2 had paid only Rs. 35,000/ and Rs 89,077/ is still due from her NOC was given by defendant No. 1 to enable her to get separate water connection. She has not yet paid the balance of Rs 54,077/ on account of water charges. The lessees who are actual NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 5/13 Suit No. 947/2005 consumers of water and are paying a very negligible amount as lease money for malafide reasons did not get separate water connections installed despite NOC by defendant no. 1.
4. In the written statement filed by defendant no. 2, it is stated that the suit is barred by law of limitation. Further defendant no. 2 is not a registered consumer of water connection No. S8990 and defendant no. 1 being a registered consumer has been collecting water charges along with rent from defendant no. 2 and therefore only defendant no. 1 is liable to pay arrears, if any. It is admitted that defendant no. 2 was an actual user of water along with other tenants. It is stated that the suit is barred by provisio appended to Section 363 of NDMC Act, 1994. The plaint was admitted to the extent that the defendant no. 2 was directed to deposit Rs 35,000/ with the plaintiff without prejudice to her various rights and contentions raised in the petition against defendant no. 1. it is specifically denied that either the demand of the plaintiff is legal or that the defendant no. 2 is liable to pay the outstanding dues amounting to Rs. 85,587/.
5. Following issues were framed by my ld. Predecessor on 27.07.2006 :
1) Whether the plaintiff is entitled to decree of Rs. 85,587 as prayed NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 6/13 Suit No. 947/2005 for? OPP
2) Whether the plaintiff is entitled to interest if so at what rate and for what period? OPP
3) Whether the suit is barred by limitation? OPD
4) Whether the suit is barred u/s 363 of NDMC Act 1994? OPD
5) Whether defendant no.2 is the registered consumer of water connection No. S8990 with the plaintiff? OPD
6) Relief.
6. Defendant no.1 was proceeded exparte on 03.08.2011 and no evidence was led by it.
7. In its support, plaintiff examined only one witness. PW1, Ms. Kanchan Bahri, Section Officer, NDMC, entered the witness box on 07.07.2008 and tendered her affidavit Ex P1 in evidence, which states the same facts as were stated by the plaintiff in its written statement. She relied on Ex PW1/1 which is the copy of delegation of power to sign, verify and institute the present suit. Ex PW1/2 which is the copy of water for the period of January 1900 to July 2008. Ex PW1/3 is the copy of demand notice to the defendant no.1. Ex PW1/4 is the certified copy of order dated 11.05.2005 in the petition under Section 45 Delhi Rent Control Act. Ex PW 1/5 is the bill for the month of February 2005. NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 7/13 Suit No. 947/2005 In her cross examination, she could not say how many lessees of defendant no. 1 were using water over the property.
8. Defendant no.2 also examined only witness in her support. D2W1, Sh. Atul Sharma, entered the witness box on 23.09.2011 and tendered his affidavit Ex D2W1/A in evidence, which states the same facts as were stated by the defendant no.2 in her written statement.
In his cross examination, he stated that the defendant no.2 vacated the property on 25.02.2008.
9. I have heard both the parties and have perused the record carefully.
10.Issue wise findings are as under:
Issue no.3: Whether the suit is barred by limitation? OPD This issue is preliminary in nature and is, therefore, being decided before issue no.1 and 2. The onus of proving this issue was on the defendant. It is the admitted case of plaintiff that the last payment was received for the bill cycle of March 2002 on 11.04.2002. Plaintiff is claiming bills due between 20.06.2002 (May 2002 cycle) to 22.02.2005 (January 2005 cycle). The present suit has been filed in the month of October 2005. A suit for recovery of money can be filed within three years of the amount becoming due. Therefore, plaintiff can only claim amount falling due from October 2002 that is for the bill cycle of NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 8/13 Suit No. 947/2005 September 2002 which fell due on 22.10.2002. The entire suit is however, not barred by limitation. This issue is accordingly decided.
11. Issue no.4: Whether the suit is barred u/s 363 of NDMC Act 1994? OPD This issue is preliminary in nature and is, therefore, being decided before issue no.1 and 2. The onus of proving this issue was on the defendant. As per Section 363 of NDMC Act, any sum due to the council may be recoverable as arrears of tax, provided no proceedings for recovery of any sum shall be commenced after the expiry of three years from the date on which such sum becomes due. It is the case of plaintiff that bills raised from May 2002 onwards have not been paid by the defendants. The present suit was filed in October 2005. Thus in view of the proviso under Section 363 NDMC Act, plaintiff can only claim bills falling due within three years of October 2005, that is amount due from October 2002 (bill cycle of September 2002 which fell due on 22.10.2002.) However, the entire suit is not barred under Section 363 of NDMC Act. This issue is accordingly decided.
12. Issue no.1: Whether the plaintiff is entitled to decree of Rs. 85,587 as prayed for? OPP The onus of proving this issue was on the plaintiff. Plaintiff has NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 9/13 Suit No. 947/2005 relied on Ex PW1/2 to show that the last payment was received for the cycle of March 2002 in the month of April 2002. Thereafter no payment, except the amount of Rs 35,000/ received in the month of March 2005, has been received from the defendants as against various bills raised by the plaintiff. Plaintiff has further shown by Ex PW1/5 that amount due by 22.02.2005 from the defendants was Rs. 1,20,587/. Defendants have not denied the raising of these bills or any the legality of the amount so calculated. The only objections that the defendants have taken to the bills is that there were other consumers of water connection and another objection is regarding the liability to pay, that is, each of the defendants is claiming it to be the liability of the other defendant. There is therefore, no dispute as regards the bill so raised.
There is concurrence between all the parties that defendant no.1 was the registered consumer and defendant no.2 was the actual consumer of the water connection No. S8990. The main dispute in the present suit is whether it is the registered consumer/defendant no. 1 or the actual consumer/defendant no.2 that is liable to pay the amount of the bill. Section 170 of NDMC Act resolves this dispute. Section 170 of NDMC Act states that if any offence relating to water supply is committed on any premises connected with the municipal water works, NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 10/13 Suit No. 947/2005 the owner, the person primarily liable for the payment of property tax and occupiers of the said premises shall be jointly and severally liable for such offence. Thus NDMC Act makes no difference between the registered owners and occupiers of water connection. Especially in the present case where defendant no. 2 admits that she was the actual consumer, there is no reason why she should not be held liable. Merely by saying that defendant no.2 deposited the bill amount with defendant no.1 does not absolve her of her liability, more so when there is not a single document to support her contention. In any case the rights inter se the defendants are not be adjudicated in a suit by the plaintiff.
Further more merely because there were other consumers of water connection does not entail that defendants are not liable. If that was the case, defendants were at liberty to pursue their remedies against other consumers.
However, plaintiff is claiming an amount of Rs. 85,587 as becoming due from May 2002 till January 2005 from which the bills for the month May 2002 and July 2002 are barred by limitation. Therefore, plaintiff is not entitled to realization of two bills in the amount of Rs 5,278/ and Rs 5,489/ raised for that period.
Accordingly, plaintiff is entitled to recovery of sum of Rs NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 11/13 Suit No. 947/2005 74,820/ from the both the defendants who are jointly and severally liable. This issue is decided in the favour of plaintiff and against the defendants.
13. Issue no.2: Whether the plaintiff is entitled to interest if so at what rate and for what period? OPP The onus of proving this issue was on the plaintiff. As a matter of policy, as reflected in Ex PW1/5, a surcharge of 1.5% for a period of 30 days is levied on late payments. Therefore, plaintiff is further entitled to interest at the rate of 19% per annum over and above the principal amount of Rs 74,820/ against the defendants. The interest is to be calculated from the date of filing of the suit to realization thereof.
Accordingly, this issue is decided in the favour of plaintiff and against the defendants.
14. Issue no.5: Whether defendant no.2 is the registered consumer of water connection No. S8990 with the plaintiff? OPP The onus of proving this issue was on the plaintiff. The parties are at admitted position that defendant no. 2 is not the registered consumer of the water connection No. S8990. They are at admitted position that defendant no.1 is the registered consumer while defendant no.2 is the actual user of the water connection. Therefore, defendant no. NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 12/13 Suit No. 947/2005 2 is not the registered consumer of water connection no. S8990.
Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
15. Issue no.6: Relief The suit of the plaintiff is partly decreed. Both the defendant are jointly and severally liable to pay Rs 74,820/ to the plaintiff along with interest at the rate of 19% per annum calculated from the date of filing of the suit to realization thereof. Costs of the suit awarded in the favour of plaintiff and against the defendants. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the Open court today on 27.08.2012 at 04:00 PM (Richa Gusain Solanki) Civil Judge (West) THC, Delhi/27.08.2012 NDMC Vs. World Agriculture Fair Memorial Trust & Ors. 13/13