Maheshwar Ferro Alloys (P) Ltd. vs Municipal Corporation Of Delhi ...
1992 Latest Caselaw 446 Del

JUDGMENT

C.M. Nayar, J.

(1) The petitioner has filed a petition under Section 20 of the Indian Arbitration Act, 1940, for directing the respondent Delhi Electric Supply Undertaking to file the original arbitration agreement in Court and for issuing appropriate orders and directions, directing the reference of the disputes existing between the parties, in terms of clause 25 of the said agreement and in accordance with the provisions of Arbitration Act, 1940.

(2) The present application has been filed under Order 39 Rules 1 and 2 and Section 151 C..C. for ad interim stay of the impugned bill raised by the respondents.

(3) The matter has been argued before me at length and it has been reiterated on behalf of the petitioner that there is no evidence of pilferage and no proper show cause notice has been issued by the respondents and. therefore, the demand raised is illegal. The alleged supplementary bill, claiming an amount of Rs.89.33,934.72 is without jurisdiction and is not tenable in law. No basis, whatsoever, for raising a demand of this huge amount with retrospective effect, i.e. from May 1988 to September, 1990. has been given by the respondents.

(4) Learned counsel for (he respondents states that the petitioner has caused loss of energy on account of fraudulent abstraction of energy and the same was detected by the joint team of Desu officials who visited the premises on August 2, 1991, and the demand raised of the alleged amount is just, fair and proper. It is submitted that a special raid was conducted on August 1, 1991, and although the factory was working, the factory Supervisor refused entry to the raiding staff. The petitioner was served with 24 hours notice on August I, 1991, and was directed to keep the premises open for inspection on August 2, 1991. The said notice was pasted on the main gate of the premises because the factory Supervisor refused to accept the same. In pursuance to the notice dated August 1, 1991. the special inspection was carried out by the Raiding Staff, which consisted of several officials, drawn from various Departments of the respondents and a Joint Inspection Report was prepared vide serial No. 9108 dated August 2, 1991, and Joint Inspection Report (Observation) vide Ir No. 656325 to 656328 dated August 2, 1991. It was inter-alia found. "(I)that the Sub-station shutter was opened by opening the substation lock and the consumer lock. (ii) the shutter was found fixed in such a way that the hinges were loose and the plaster of hinges was also found of different type and broken at few places. (iii) the sub-station shutter was accessible to the consumer for an unauthorised entry to the Desu ring main unit and they can easily tamper the sub-station equipment. (iv) the sub-station is having a single source of supply from M/s Krishna Forging, Okhla Phase-II. As such, if the consumer tampers/operates the incoming isolator, he can make the busbar of the ring main units dead. (v) the inspection cover fitted at the top of the isolator was found in loose condition. The bolts were found loose and could be opened by hand. The bolts were of different types. (vi) On opening the inspection window of the isolator the internal spotted marks were found inside the isolator plate. (vii) White-wash inside the Sub-station was of different types and in same places recently done."

(5) In view of the above, the respondents came to the conclusion that the Consumer was indulging in theft of energy by laying temporary cable/leads from the busbar of the incoming isolator through the inspection plate and taking the Ht cable/leads through the unauthorised entry by tampering the sub-station shutter from the upper side.

(6) Learned counsel for the respondents has further argued that the petitioner is relying on an agreement dated March 20, 1986 and he has referred to clause 16, the operative part of which reads as follows: "THE consumer shall pay the bill or bills within fifteen days from the date of their presentation, notwithstanding any difference or dispute which may occur as to the accuracy of the sums involved in any bill. If the consumer fails to pay the amount of any bill due under this agreement within fifteen days from the date of presentation of the bill referred to, he shall pay a surcharge of two per cent for each month or part of a month for which the bill remains unpaid from the date of presentation."

(7) Therefore, it is submitted that the petitioner ought to have deposited the entire amount of Rs. 89,33,934.72 before the matter could be referred to arbitration under clause 25.

(8) On the contrary. Learned counsel for the petitioner has contended that the petitioner shall only be required to pay regularly monthly bills, as envisaged in clauses 13 and 15 of the Agreement and the present demand relates only to the charge for fraudulent abstraction of electricity. This plea does not sound convincing as the petitioner himself is relying on clause 25 of the agreement and the agreement has to be read as a whole and it cannot be said that the Clauses, which support the case of the petitioner, have to be read and the other clauses have to be discarded. However, I do not propose to deal with this point, as it will not be necessary for me to do so for the purpose of disposing the present application.

(9) The present demand has been raised by Desu for loss of abstraction energy in view of the raid conducted by Desu officials on August 2, 1991. The huge demand, which has been raised by means of supplementary bill, relates to the period from May 1988 to September, 1990. There has been no sufficient explanation from the respondents as to why the factory premises of the petitioner were not inspected earlier to find out, whether, there was any theft, pilferage and fraudulent abstraction of energy. The demand, which is now sought to be raised is for a back dated period from May 1988 to September, 1990, as a result of the inspection conducted on August 2, 1991. It will be rather harsh on the petitioner to be asked to pay this huge amount with the threat of disconnection, when the respondents have themselves taken such a long period to detect the alleged fraudulent abstraction of electricity.

(10) On the other hand, the petitioner has been least co-operative and the charges against him are rather grave. The respondents have contended that the petitioner was found abstracting energy illegally and fraudulently. There was willful obstruction when the raid was conducted on 1st August, 1991. The notice for the subsequent raid on 2nd August, 1991, had to be pasted on the main gate of the factory of the petitioner. The balance of convenience, therefore, will not be in favor of the petitioner to entitle him for stay of the entire amount.

(11) On the facts and circumstances of the present case, the ends of justice will be met, if the petitioner is asked to deposit a sum of Rs. 25 lakhs. I order accordingly. The petitioner is directed to deposit the said amount within a period of four weeks from today. The amount so deposited shall be subject to the final decision of the case. Nothing herein contained will amount to an expression of opinion on the merits, which may cause prejudice to the parties in the pending suit I.A. 2284/92 stands disposed of.