Kathuria & Sons vs Municipal Corporation Of Delhi
1998 Latest Caselaw 674 Del

JUDGMENT

S.N. Kapoor, J.

1. This CM(Misc.) petition has been filed against an order dated 14th July, 1995 passed by Sh. V.K. Maheshwari, Civil Judge, Delhi refusing to grant injunction and holding that the plaintiff/petitioner was legally bound to pay fuel adjustment charges on demand of Delhi Electric Supply Undertaking (Predecessor-in-interest of Delhi Vidyut Board, hereinafter called "the DESU" for short) and the plaintiff/petitioner had no prima facie case.

2. The impugned order was challenged on two grounds, namely, the fuel adjustment charges could not be charged at the Will by the erstwhile DESU or on account of non-payment of the late payment surcharge.

3. In so far as the fuel adjustment charges are concerned, learned Counsel for the plaintiff/petitioner submits that a sum of Rs. 83,389.11p. had already been deposited in terms of order dated 10th October, 1995. There is dispute regarding unpaid fuel adjustment charges. In this regard, it appears that so far as fuel adjustment charges are concerned, the matter is covered by not one but several judgments, namely, in M/s. Sagar International Pvt. Ltd. Vs. Municipal Corporation of Delhi, Suit No. 2512/92,Delhi Cloth & General Mills Co. Ltd. Vs. Rajasthan State Electricity Board & Ors., , D.C.M. Limited Vs. M.C.D., AIR 1989 Delhi 30 and the plaintiff/petitioner is liable to pay the same.

4. In so far as the second point relating to dispute of late payment surcharge @ 3% per month is concerned, the parties have been heard at length. Clause (f) LIP Consumers reads as under :

"(f) Payment.

The above rates are net. In the event of the monthly bill not being paid in full within the time specified in the energy bill,a surcharge @ 3% on the amount of the bill not paid shall be levied for each 30 days successive period of part thereof until the amount is paid in full, without prejudice to the right of the Undertaking to disconnect supply after the due date in the event of non-payment in accordance with the Section 24 of the Indian Electricity Act, 1910."

5. It provides for 3% surcharge on the amount of the bill not paid before 30 days' successive period. In the year the rate of surcharge up to period 1985-86 was 2% per month only. It was increased by 1% from the year 198687. The tariff of DESU had statutory force and statutory nature as rightly submitted by the learned Counsel for the defendant/respondent. The judgment in M/s. Ashok Soap Factory & Another Vs. Municipal Corporation of Delhi and Others, supports these submissions. In that case, it was held that fixation of tariff was a legislative function and the only challenge to the fixation of such levy could be on the ground of unreasonableness and arbitrariness and not on demonstrative grounds. Here learned Counsel for the plaintiff/petitioner did not challenge this tariff on the ground of unreasonableness or arbitrariness. It is not in dispute. Rather it is submitted that the bill (Annexure-B) related to period from 1st April, 1991 to February, 1992. The bill was payable by 22nd July, 1992. It included late payment surcharge @ 3% amounting to Rs.5,003.34p. Undisputedly, the amount has not been paid within period. Therefter on 24th September, 1995, a notice (Annexure-C) was issued to dis-

connect the electric connection and this notice made the plaintiff/petitioner to approach the Court for permanent injunction and seeking ad interim injunction.

6. Learned Counsel for the plaintiff/petitioner referred to the judgmentin M/s. Kwality Steel Vs. Municipal Corporation of Delhi, FAO(OS) 13/95. I have sent for the file of FAO(OS) 13/95 and perused the judgment dated 10th February, 1995. But this order does not indicate that surcharge @ 3% per month could not be charged. Rather payment was ordered to be made taking into 36% surcharge which was worked out roughly to Rs. 13.7 lacs. As such,this judgment does not support the ntention of the petitioner. Rather it goes against the petitioner. Since the late payment surcharge is being harged in terms of the tariff referred to above, it does not appear plausible to accept the contention of the learned Counsel for the plaintiff/petitioner that he is not liable to pay late payment surcharge 3% per month i.e. 36% per annum. Seeing the tariff, the judgments referred to by the learned Civil Judge and the judgment in M/s. Ashok Soap Factory Vs. M.C.D. (supra), it appears that in this petition there is neither prima facie case nor balance of convenience is in favour of the plaintiff/petitioner and question of irreparable loss could not be imagined in the present case. It is apparent, therefore, that this petition has got no force. It is dismissed with costs in favour of the respondent.