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IN THE COURT OF SHRI SANJEEV JAIN :ADDITIONAL DISTRICT
JUDGE: (CENTRAL DISTRICT) DELHI
Suit no. 41/07
Date of Institution: 12.04.99
Final arguments heard: 11.07.09
Date of Decision: 27.07.09
M/s.Leatheroid Plastics (Pvt)Ltd.
Through its Director
Sh.Vipul Goel
s/o Sh.M.S.Goel,
having its Regd.office at
B II/31, Moan Cooperative Indl.Estate,
Badarpur, New Delhi.
.... Plaintiff.
Vs.
BSES Rajdhani Power Ltd.
Through its CEO
BSES Bhawan, Nehru Place,
New Delhi110010
.... Defendant.
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JUDGMENT
1 In brief plaintiff M/s.Leatheroid Plastics Pvt.Ltd. filed the suit for declaration and mandatory injunction through its director Sh.Vipul Goel. As per the plaintiff case, Sh.Vipul Goel being one of the director was duly authorised by the Board of Directors vide its Resolution dt.22.10.98 to institute the suit. As per the plaintiff case, plaintiff is a registered consumer of electricity vide K.No. X 10191001186/BS11/1 installed at premises no.B11/31, Mohan Cooperative Industrial Estate, Badarpur, New Delhi. It is disclosed in the plaint that under sect.31(A)of Air (Prevention & Control of Pollution) Act, 1981 vide letter dt.7.1.96, the factory premises of the plaintiff company was sealed w.e.f. 8.1.98. Delhi Pollution Control Committee revoked the direction of sealing of the premises of the 2 plaintiff vide letter dt.13.4.98 with immediate effect. As per the case of the plaintiff between 8.1.98 and 13.4.98 the factory premises remained sealed as per the direction of Delhi Pollution Control Committee and during the said period the plaintiff Co.was the incapacitated to run its business. It is stated that during the period of sealing, no electricity was consumed. Vide order Ex.PW1/2, at the time of sealing of the premises of the plaintiff, DVB was directed to disconnect the electricity supply, but still the electricity was not disconnected. The bills were continuously raised even for the period in which the premises remained sealed and no electricity was consumed. Despite legal notice, the matter was not referred to arbitrator by defendant and adjustments for the period in which factory premises remained sealed was not given. 3 2 Therefore, plaintiff has prayed the relief of declaration thereby declaring the impugned bill of Rs.4,61,416/ as illegal arbitrarily and void. Plaintiff has prayed for mandatory injunction thereby directing the defendant to refund the amount paid by plaintiff during the period of disconnection from the date of the sealing of premises I.e. 28.1.98. In view of the interim orders of the court and further directions to defendant to refinalized the bill on the basis of taking the disconnection date from the date of sealing of the factory premises. 3 In written statement, it was alleged that plaintiff has not approached the court with clean hands and suppressed the material facts. The electricity supplied was disconnected on 3.12.98 due to non payment of dues and an amount of Rs.7,61,391/ was outstanding against plaintiff as on 21.8.99. In preliminary objections, 4 it was alleged that suit is bad for non joinder to necessary parties as Delhi Pollution Control Committee (DPCC) has not been impleaded as a necessary party. It was alleged that relief of declaration was claimed by way of amendment of plaint at a highly belated stage and therefore, the relief of declaration is barred by limitation. It was also alleged that plaintiff has not affixed the proper court fee on the demand of Rs.7,16,391/. On merits, the fact that premises of the plaintiff was sealed as per direction of Delhi Pollution Control Committee was denied for want of knowledge. It was submitted that electricity supply of the plaintiff was not disconnected because of the orders of DPCC, but due to non payment of bills. Other material contents of the written statement were also denied. 4 On the basis of pleadings and material on record initially 5 following issues were framed by Ld.Civil Judge vide his order dt.22.8.2000.
1. Whether this court has pecuniary jurisdiction to try the present suit?(OPP)
2. Whether the suit is bad for nonjoinder of parties in view of preliminary objection no.3 of W.S?(OPD)
3. Whether the plaintiff is entitled to the relief of Permanent injunction as prayed for?(OPP)
4. Whether the plaintiff is entitled to relief of Mandatory Injunction as prayed for?(OPP)
5. Relief.
Vide order dt.2.11.04 Ld.Civil Judge framed following two additional issues, which were treated as preliminary issues. 6
1.Whether the suit of the plaintiff is not maintainable without seeking the relief of declaration?
2. Whether the plaintiff has valued his properly for the purpose of court fee and jurisdiction?
Vide order dt.14.11.06, an application under order 6 rule 17 CPC filed by the plaintiff for amendment of plaint was allowed by the court of Ld.Civil Judge. Amended plaint and thereafter written statement to the amended plaint were accordingly filed. Vide order dt.25.4.07 Ld.Civil Judge referred the matter to Ld.Distt.Judge while observing that suit has gone beyond the pecuniary jurisdiction of the court. Accordingly, the case was assigned to this court by Ld.District Judge.
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Vide order dt.11.9.07 following additional issues were framed.
4(a) Whether the relief of declaration is time barred? (OPD) 4(b) Whether the plaintiff is entitled to the relief of declaration, as prayed for?(OPP) 5 In order to prove its case PW1 Sh.Vipul Goel, one of the director of the plaintiff Co.appeared in the witness box. He proved his authorizing Ex.PW1/1, Letter dt.7.1.98 from DPCC Ex.PW1/2, letter from DPCC Ex.PW1/3, Final order given on 16.12.99 Ex.PW1/4, letter dt.23.3.98 written to DVB Ex.PW1/5, legal notice issued by plaintiff Ex.PW1/6, postal receipts pertaining to legal notice Ex.PW1/7. PW1 deposed that as per the direction of DPCC, the premises was sealed on 8.1.98 and was resealed vide letter 8 dt.23.398. He stated that despite directions of DPCC, bills were continuously raised by the defendant, though the premises was sealed and electricity was not used.
During cross examination, nothing material could be achieved. It was not disputed that the premises of the plaintiff was sealed by DPCC between the period from 8.1.98 to 23.3.98. There was no material cross examination on the other aspect of the testimony of PW1. The authenticity of documents proved on record was also not disputed during cross examination.
After giving sufficient opportunities evidence was closed by the Ld.Predecessor vide order dt.29.7.09.
6 I have heard the Ld.counsels for parties. I have carefully gone through the pleadings, testimony of witnesses, documents proved on 9 record and the written submissions filed by the parties. I have carefully considered the arguments advanced at bar. Issue wise discussions is as follows:
7 Issue no.:Whether this court has pecuniary jurisdiction to try the present suit?
Issue no.:Whether the plaintiff has valued his suit property for the purpose of court fee and jurisdiction?
In order to avoid repetition these two issues are taken together for discussion. As per the amended plaint, plaintiff has valued the suit for the purpose of court fee and jurisdiction at Rs.4,49,656/for the relief of declaration and advalorem court fee has been paid, whereas the relief of mandatory injunction has been valued atRs.130/ and the court fee has been paid. A preliminary objection 10 was taken in this regard in the written statement. No question was asked during cross examination of PW1 in respect of the valuation of the suit, pecuniary jurisdiction of the court or the court fee. No evidence has been lead from the side of the defendant. Allegations taken in preliminary objections has not been proved by the defendant. After careful consideration, in my opinion, as per the amended plaint the court has the pecuniary jurisdiction to entertain and try the suit. The suit has been valued properly for the purpose of court fee and jurisdiction and proper court fee has been paid. Issue is accordingly decided in favour of the plaintiff and against the defendant.
8.Issue:Whether the suit is bad for non joinder of parties in view 11 of preliminary objection no.3 of the written statement?
The onus of this issue was upon the defendant. No evidence has been lead by the defendant. During cross examination of PW1, nothing has been asked in this regard. The relief of declaration and mandatory injunction has been claimed by plaintiff against the defendant in respect of the electricity bill raised by the defendant, in which DPCC has no role to play. In my view, DPCC was not a necessary party in the suit. Objection has been taken by the defendant without any substance. Issue is accordingly decided in favour of the plaintiff and against the defendant.
9.Issue: Whether the suit of the plaintiff is not maintainable without seeking the relief of declaration?
This issue has no relevance as by way of amendment in the 12 plaint, the relief of declaration has been added in the plaint. The issue framed by Ld.Civil Judge is accordingly decided.
10.Issue: Whether the relief of declaration is time barred?
Onus of this issue was also upon the defendant. Neither any thing material question has been asked during cross examination of PW1 nor any evidence has been lead by the defendant. Ld.counsel for defendant submitted that relief of declaration could have been claimed within three years from the cause of action in accordance with Limitation Act. Ld.counsel for defendant has cited Kedar Nath Motani Vs. Prahlad Rai & Others, AIR 1990 SC 213. Ld.counsel for defendant also relied on Tarlok Singh Vs. Vijay Kumar Sabharwal (1996) 8 SCC 367. In the case of Tarlok Singh, it was held that, "Suit for perpetual injunction filed by respondent on 13 23.12.87 but application under order 6 rule 17 CPC filed by him on 17.7.89 for converting the suit into one for specific performance of the agreement of sale held, respondent's suit barred by limitation" I have carefully considered the submissions of Ld.Counsel for defendant. In my view, the case of Tarlok Singh was decided in different facts, where a suit for permanent injunction was converted in a suit for specific performance of contract. In the present suit, the dispute was pertaining to the impugned bill and originally suit for permanent and mandatory injunction was filed by the plaintiff. Objections were taken from the side of the defendant. A preliminary issue was framed by the court to the effect, whether without seeking the relief of declaration suit is maintainable, In view of the law laid 14 down by Hon.High Court of Delhi in the case of Sarjivan Singh Vs. DVB. An application under order 6 rule 17 CPC was filed by the plaintiff for seeking amendment in the plaint and thereby the relief of declaration was added. After careful consideration, in my opinion, by way of the amendment, neither the cause of action nor the nature of the suit was changed. The same relief was claimed in the original plaint in the form of mandatory and permanent injunction, but the material dispute was pertaining to the payment of court fee. In my opinion, judgment cited by Ld.counsel for defendant is not applicable in the facts and circumstances of the case. As the material relief was already claimed in the form of mandatory and permanent injunction, the suit for declaration is not barred by limitation. Issue is accordingly decided in favour of the plaintiff and against the defendant.
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11.Issue: Whether the plaintiff is entitled to the relief of declaration as prayed for?
Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?
For the sake of convenience and in order to avoid the repetition both the issues are taken together for discussion. Main case of the plaintiff is that as per the orders issued by Delhi Pollution Control Committee, the factory premises of the plaintiff remained sealed from 8.1.98 to 13.4.98. Between 8.1.98 to 13.4.98 the plaintiff Co.was incapacitated to run the factory premises or to use the electricity. As per the plaintiff case, despite directions to DVB by DPCC vide letter Ex.PW1/2, the electricity supply was not disconnected, rather the bills were continuously raised even for the period from 8.1.98 to 16 13.4.98. In written statement, the fact that premises of the plaintiff remained sealed between 8.1.98 to 13.4.98 was not specifically denied. Only it was denied for want of knowledge. During cross examination of PW1, the fact of sealing of the premises was not disputed. So, it has been proved on record by the plaintiff that premises of the plaintiff remained sealed from 8.1.98 to 13.4.98. Letter Ex.PW1/2 by DPCC is not in dispute. As per this letter, DVB was directed to disconnected the electricity supply. DVB and DPCC both are the agencies controlled by the Government. The directions of DPCC in respect of disconnection of electricity was not complied with by the defendant. Testimony of plaintiff could not be challenged on material points during cross examination. No evidence has been lead from the side of the defendant. Keeping in view the entire facts and circumstances and the testimony of witnesses, in my opinion, 17 plaintiff has been able to establish the material avernments of its case. It has been proved on record that electricity bills has been raised by the defendant even for the period from 8.12.98 to 13.4.98 in which the factory premises of the plaintiff remained sealed. In my opinion, the action of the defendant is not in consonance with the principal of natural justice and equities. Defendant can not be asked to pay the electricity bill for the period from 8.1.98 to 13.4.98 in which the factory premises remained sealed. Accordingly, in my view, plaintiff is entitled for the relief of declaration as well as for mandatory injunction. Issue is accordingly decided in favour of the plaintiff and against the defendant.
12 Relief:
In the light of the above findings, the suit is decreed in favour of 18 the plaintiff and against the defendant in following terms.
a) Suit is decreed and thereby the impugned bill of Rs.4,61,416/by way of bill for the month of Feb.1999 against K.No.X 10191001186/BS11/1 installed at premises no.BII/31, Mohan cooperative Indl.Estate, Badarpur, New Delhi is declared illegal, null and void.
b) By way of mandatory injunction, defendant, its officials and agents are directed to refinalise the electricity bills of the plaintiff, thereby deducting the amount of the electricity charges claimed for the period from 8.1.98 to 13.4.98 in which the factory premises of the plaintiff remained sealed and further directed to refund the excess amount, if any paid by the plaintiff Co.either directly or in pursuance to the interim orders of the court. Cost of the suit is awarded in favour of 19 the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to R/R.
(SANJEEV JAIN) Additional District Judge: Delhi (Central Dist) Announced in open court on 27.07.09.
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