Kwatity Steel vs Municipal Corporation Of Delhi
1995 Latest Caselaw 390 Del

JUDGMENT

R.C. Lahoti, J.

(1) This is a petition under Section 20 of the Arbitration Act, 1940.

(2) The petitioner is a large scale industrial power (LIP) consumer and enjoying electricity supply from the respondent. According to the petitioner its meter became defective in the month of August, 1991. On a complaint being made it was removed by the officials of the respondent on 7.5.92, on which date the respondent also installed a new meter. The defective meter is still lying with the respondent, but the petitioner has been billed provisionally for the period for which the meter has remained defective.

(3) The petition was filed alleging meter having gone defective in the month of August, 1991 and seeking appointment of arbitrator under Section 20 of the Arbitration Act consistently with the arbitration clause contained in the agreement for adjudicating upon the correctness of the bill for the month of August, 1991. During the pendency of the petition bills for the subsequent months up to 7.5.92 have been raised and served on the petitioner and the petitioner has filed interlocutory applications seeking reliefs in respect of those bills.

(4) The existence of the arbitration clause in the agreement between the parties is not denied.

(5) In the written statement, it is denied that the meter of the plaintiff had become defective. It is stated that it was only Mdi resetting device which was reported to be defective. Such defect did not at all affect the reading of the meter on Kwh and KVAH. The reading was taken in the presence of the petitioner. Details of the reading taken for the period in question have been set out in the written statement. Vide para 7 of the written statement, the defendant has set out in details its plea demonstrating how the reading recorded by the defendant is correct.

(6) Learned counsel for the petitioner has relied on Section 26 of the Indian Electricity Act and decision of this Court in H.B.Shourie VS. M.C.D., 1987 (32) Dlt 73 to submit that the respondent should have referred the dispute raised by the petitioner for the decision of the electric inspector which having not been done, the respondent is not entitled to raise any bill for the period for which the meter had remained defective. According to the learned counsel for the respondent availability of remedy under Section 26(6) of the Electricity Act excludes the applicability of arbitration clause the remedy of referring the dispute to electric inspector was available as welt to the petitioner too which having not been availed by him, he is liable to pay according to the reading recorded by the respondent and cannot take shelter behind the arbitration clause.

(7) Section 26(6) of the Indian Electricity Act, 1910 provides as under :- "(6)Where any difference or dispute arises as to whether any meter referred to in sub-Section (1) is or is not correct, the matter shall be decided, upon the application of cither party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate- the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity: Provided that before either a licensee or a consumer applies to the Electrical Inspector- under this sub-Section, he shall give to the other party not less than seven days' notice of his intention so to do."

(8) Three decisions have been brought to the notice of the Court. They arc M.P.E.B. VS. Basanti Bai, , H.D. Shouri VS. Mod and Sriram Industrial Enterprises Ltd. VS. Mcd, (S.No.39]193) decided on 28.11.94. In H.D. Shouri's case (supra) Clause 22(d) of the conditions of supply has been quoted which reads as under :- "(D)If at any time the meter belonging to the Undertaking and installed at the consumer's premises is found defective, the same shall be replaced by Undertaking. For the period during which the meter remained defective, the consumption shall be determined as follows : (i) Average recorded for the previous three Season months for all consumers including perennial factories except those as brought out under item (ii) below. (ii) For seasonal factories and licensees either average of previous three months as in (i) above or last year's consumption for a similar period whichever is considered suitably by the Undertaking".

(9) From the above said provisions, it is clear that with respect to a defective meter there may be two situations. Party may allege a meter to be defective which allegation the other party may admit or not. If the meter is admitted to be defective it has to be removed and replaced, if it be a meter belonging to the undertaking. If the factum of the meter having remained defective is admitted, for the period during which the meter had remained defective, the consumption has to be determined consistently with Clause 22 (d) of the Conditions of Supply. If the meter having been defective is not admitted then the difference or disputes as to whether the meter was or was not defective has to be referred for decision by the Electrical Inspector. If the Electrical Inspector opines the meter had ceased to be correct then the Inspector shall estimate the amount of energy supplied during the period of defect (not exceeding six months). Subject to such conditions the reading registered by the meter is binding on the partics.

(10) In Shriram Industrial Enterprises case (supra) this Court has held that either party may refer the dispute under Section 26(6) for the decision of Electrical Inspector. In the case at hand there is a dispute whether the meter was defective or not. It was open to the petitioner to have sought for decision of dispute by the Electrical Inspector. That having not been done, the reading recorded by the meter would bind the parties. It is still open to the petitioner to take benefit of Section 26(6) of the Electricity Act. But in any case petition under Section 20 of the Arbitration Act is incompetent.

(11) The learned counsel for the petitioner submitted placing reliance on H.D.Shouri's case (supra) that so long as the meter remains defective, the Desu cannot raise a supplementary bill. I have already pointed out hereinabove what would be the method of charging the consumption during the period for which the meter remains defective. If the Desu is making departure from the prescribed mode and making an arbitrary demand, remedy is available to the petitioner hut before an appropriate forum, in a duly constituted proceedings, and not by a petition under Section 20 of. the Arbitration Act.

(12) For the foregoing reasons, the petition is dismissed.

(13) All interim orders passed in this petition stand vacated.