Municipal Corporation Of Delhi ... vs Asian Art Printers
1991 Latest Caselaw 339 Del

JUDGMENT

M.C. Jain, J.

(1) These eight appeals are directed against the judgment dated November 21, 1990 delivered by the learned Single Judge whereby the eight petitions under Section 20 of the Arbitration Act treated as suits (Suit Nos. 2026, 2233, 2286, 2273, 2291, 2348, 2642 and 2646 of 1990) were allowed and a direction was given that the arbitration agreements be filed in Court and the learned Single Judge appointed Shri Dalip Singh, Advocate as the sole arbitrator and referred the dispute for his decision.

(2) The dispute that has been referred relates to the question as to whether under the tariff issued by the appellant for the year 1990-91, the appellant can charge minimum guarantee charges in addition to the actual consumption charges.

(3) According to the learned Single Judge the dispute is covered under Clause 15 of the agreement. The respondent is a consumer of mixed load (HT) and the tariff in respect of mixed load (HT) regarding demand charges and another charges is as under :- Mixed'Load H.T. (a) ... (b) ... (e) Tariff Demand Charges: Rs 40000 per month per Kva or part thereof of the committed load (as per load in the test report) plus Energy Charges; 67 paise per Unit : The above shall be without prejudice to the minimum demand laid down in (d) below and adjustment clause at (xviii) under General Conditions of Application. (d) Minimum Bill: The amount of the demand charges based upon the Kva of billing demand.

(4) The respondent's contention is that the respondent is not liable to tariff charges even when actual consumption charges exceeds the demand charges According to the respondent the word plus is to be read Along with the subse auent tariff condition to the effect that-the above shall be without prejudice to the minimum demand as laid down-in (d)' and clause (d) deals with minimum bill.

(5) According to the learned counsel for the appellant, the tariff calls for no interpretation. It is clear that the consumer is also required to pay energy charges. Even if the energy charges are more than the demand charges still demand charges are to be paid by the consumer, i.e. if actual consumption of energy is much more or higher to the demand charges, still demand charges are liable to be paid by tue consumer. Demand charges have to be paid by the consumer over and above the actual compensation of energy charges.

(6) The learned Judge has found that the above tariff conditions need to be interpreted and as such dispute arises between the parties regarding the interpretation of the tariff and so the dispute is referable to the arbitation.

(7) We agree with the view of the learned Single Judge. The learned Single Judge was right and justified to hold that the dispute is covered under clause 15 of the agreement and as such the dispute is referable to arbitration.

(8) These appeals, therefore, in our opinion, have no force so they are hereby dismissed with no order as to costs.

(9) Cross objections have been filed in Appeals (FAO (OS) Nos. 224 to 230 of 1990) relating to Suit Nos. 2233, 2286, 2273, 2291,2348, 2642 and 2246 of 1990.

(10) The cross objections relate to two matters which the learned Single Judge declined to refer for arbitration. The first relates to the question of increasing of the billing demand from certain Kva to higher KVA. According to the respondent, up to March 1990 in all these cases the Kva was much less and suddenly in the month of April 1990 it was raised under the new tariff 'coming into effect w.e.f. April 1990. The relevant tariff for the year 1990-91 is as under: Demand Charges: Rs.48.00 per month per Kva or part thereof for the committed load (as per the load in the test report). (d) Minimum bill: The amount of charges based upon the Kva of the billing demand.

(11) According to the learned counsel for the respondents, the billing demand is not committed load. The billing demand is an average demand and as such the billing demand could not be increased by the appellant w.e.f. 1st April 1990.

(12) This question has been examined by the learned Single Judge in the manner that according to the tariff the mode of billing has been changed in the new tariff and clause (d) has been introduced to the effect that the amount of the demand charges shall be based on the Kva of the billing demand. Kva of billing demand would be committed load. Tariff is not liable to be assailed before the arbitrator. As such the arbitrator has no jurisdiction to decide about the legality of the tariff.

(13) In the above view of the matter, the learned Single Judge found that the dispute is not referable to arbitration. We agree with the learned Single Judge that so far as the tariff is concerned, its legality cannot be gone into by the arbitrator and in the tariff the minimum bill would be in accordance with the Kva of the billing demand.

(14) Another cross objection pertains to the dispute relating to fuel adjustment charges. The formula relating to fuel adjustment charges is not assailable before the arbitrator as the formula is introduced in exercise of the statutory authority. With regard to the formula it is urged that sale of energy to N D.M.C., Military Services and to Agricultural Units have not been taken into consideration. Our attention has been brought to the counter filed by the appellant. From that counter it is clear that energy is being sold to the aforesaid bodies and that has gone into consideration while fixing the formula. In view of the pleadings of the appellant in the counter in respect of which no specific objection was taken by the petitioners in the suit. this question does not arise for consideration at all. Even otherwise we find that the appellants have come out with a specific case that energy has been sold to the above bodies and that has been taken into account in the chart appended to the counter showing the energy sold. So factually it cannot be found that sale of energy to these bodies have been ignored.

(15) It has also been urged by the learned counsel for the respondents that the energy generated and the energy produced has been shown in the annexures and the energy sold is much less than the total of energy generated and purchased. It has not been shown as to how the energy has been consumed.

(16) In this connection suffice It would be to say that the difference shows transmission losses or other losses. Energy generated and energy purchased minus the energy sold would be only loss of energy until and unless any specific case is alleged as to how the energy has been used it cannot be taken that the difference has been ignored to be taken into consideration. The accounts of the appellants are not open to challenge. The figures given by the appellants in the charts which have to be taken as they are and on that basis the fuel adjustment charges has been determined and all factors have taken into consideration while arriving at the formula in respect of which no specific objection has been taken before us except on the above factors.

(17) On this dispute as well the learned Single Judge has taken the view that it is not a dispute which can be said to arose under clause 15 of the agreement and as such is not referable to arbitration. As a matter of fact no bonafide dispute arises on this account.

(18) In the result, in our opinion, cross objections also have no force, so they are hereby dismissed. No order as to costs.