Delhi Bottling Co. Ltd. vs Mcd (Desu)
2003 Latest Caselaw 1353 Del

JUDGMENT

R.S. Sodhi, J.

1. These appeals are directed against the judgment and order of the Additional District Judge, Delhi dated 11th March, 1996 in RCA Nos. 50/95 to RCA No. 80/95 by which the Additional District Judge has dismissed the appeals arising out of the judgment and decree dated 1st July, 1995.

2. The facts of the case as noted by the Additional District Judge are as under :

''Facts of the case as stated in the appeal are that appellants are carrying on business of aerated water and carbonated bewerages at their premises No. 60, Najafgarh Road, New Delhi and that for carrying the said business, they were granted an industrial power load of 530 H.P., 3 KV of commercial power and 17 KV lighting since 1-8-85. It is also stated that Central Board for Prevention and Control of Water Pollution directed that appellants vide letter dated 4/12/87 to install an affluent Treatment Plant (hereinafter to be referred as E.T.P.). It is also stated that ETP needed 50 to 60 H.P. Electrical energy which plaintiff utilised out of the existing load granted, by slashing the production. It is further stated that an application was however made to Delhi Administration for grant of additional load of 250 H.P., but before that an application was made to the MCD for amending the Municipal license so as to incorporate the running of factory on 780 H.P. Load and they were also requested to make recommendation for grant of additional load. It is pleaded that the Delhi Administration sanctioned the additional load of 250 H.P. And thus, total sanctioned load came to 780 H.P. The respondent/defendant vide their letter dated 2-3-89 directed compliance of commercial formalities by way of deposit security amounting to Rs. 18,700/-, installation charges etc. But despite completing all the formalities, additional load was not energised. In the meanwhile, the license and sanction granted by the Delhi Administration lapsed which was got revalidated. Some additional formalities were also fulfillled as desired by the respondent/defendant vide their another letter but still respondent did not energise the additional load. Again demand was raised for a sum of Rs.38,583/- which has also met as plaintiff deposited the money but still additional load was not energised.

4. It is alleged that while the matter relating to energisation of additional load was being processed, the respondent carried out an inspection on the premises on 9/10/91 without any prior notice and after inspection, the defendant pointed out three violations

(i) excess load connected since connected load was found to be 7.11.38 H.P.

(ii) Subletting of the load sanctioned.

(iii) Lower Power Factor due to non-installation of shunt capacitor of adequate capacity.

It is also alleged that there was no violation regarding consumption of energy rather it was just an excuse for not energising the additional load sanctioned and the plaintiff immediately refuted the allegations and submitted that load was within the sanctioned limit and that there was no misuse of energy by subletting; that, Power Factor was also being maintained with installation of adequate capacity shunt capacitor. Plaintiff also got prepared a test report from Government Approved Electrical Contractor and then requested the defendant for re-inspection of the premises. But the respondent/defendant struck to the pleas that appellant had violated the consumption of energy as per their inspection report dated 9-10-91.

5. The defendant had consistently been raising bills for every month on the basis of inspection report and then plaintiff had to file a separate suit against every bill raised by the defendant and in this way in all 36 suits were filed.

6. It is pleaded that since the appellant/plaintiff also lost patience with the postponement and dilatory tactics adopted by the respondent/defendant in energising the additional load of 250 H.P., the plaintiff filed Writ Petition No. 807/94 before Delhi High Court which was contested by the defendant. Ultimately, Hon'ble High court vide its order dated 14-2-95 directed for energisation of the additional load and now load is stated to have been energised in the premises in terms of the orders passed by Hon'ble High Court. It is further pleaded that the plaintiff had led cogent evidence in support of his claim for perpetual injunction. But the learned trail court dismissed all the suits by misconstruing and misinterpreting the documents produced on record by the plaintiff, while accepting the ipse dixit on behalf of the respondent inspite of the contradictions and improbabilities.''

3. Vide order dated November 8, 2000, the controversy in these appeals had been narrowed down to whether the appellant was guilty of any load violation. The respondent had withdrawn the other disputed issues regarding misuse charges and low power factor charges with effect from 24th February, 1992 to 12th August, 1996 respectively.

4. Counsel for the appellants submits that having entered into an agreement with the respondent on 7th April, 1989, for enhancement of power load to 780 H.P. instead of 530 H.P. and the Executive Engineer directed to release the load vide communication dated 28th September, 1989, the inspection dated 9th October, 1991, where the appellants herein were found using load in excess of 530 H.P. could not have been held to be a violation of the load. He submits that non-energising could not entail penalty.

Counsel for the respondent on the other hand submits that although agreement had been entered into on 7th April,, 1989 to the effect that load had been increased from 530 to 780 H.P., but due to a letter written by the company to the DESU dated February, 1990, that the company was not in a position to accept the load of 780 H.P., the grid was not energised to the increased load. The appellants having used the load of 780 H.P. without system being energised for the same has opened themselves to pay load violation charges.

5. I have heard learned counsel for the parties and find from the material on record that vide an agreement dated 7th April, 1989 the electric load had been increased from 530 H.P. to 780 H.P. Further by a letter dated 28th September, 1989 the Executive Engineer had been directed to release the aforesaid 780 H.P. but it appears that the aforesaid load was not realised. It is true that a letter from the company (appellant herein) to the effect that company was not in a position to utilise the 780 H.P. load was written, yet when an inspection had taken place on 9th October, 1991 and the appellants were found using load up to 710 horse power, which was within the agreed additional load although not connected, there was no reason why DESU should not have raised a bill on the load of 780 H.P. prior to 9th October, 1991. The company was bound to pay on the basis of 780 H.P. plus penalties as was imposed. However, subsequent to 9th October, 1991 the charge of load violation is not justified. Since the DESU knew the company was using their agreed additional load which DESU was prepared to energised but were prevented from doing so by the companies they should have charged them on the increased additional load namely 780 H.P. but no penalty could be imposed for violation of load subsequent to the inspection dated 9th October, 1991. It would not be out of place to mention that the company had to file a writ petition to enforce the agreement dated 7th April, 1989. Therefore, according to me, the DESU could not capitalise on its own wrong, namely, after 9th October, 1991, knowing fully well that the company was utilising the additional lad yet by not energising the same, continue to charge the penalty and force the company to come to the Court and seek directions.

6. In this view of the matter, I hold that the charges levied or imposed by the respondent prior to 9th October, 1991 are legitimate and payable however charges on the basis of load violation subsequent to 9th October, 1991 are quashed. However, the DESU will be entitled to charge after 9th October, 1991 at the rate for sanctioned load of 780 H.P. The order under challenge dated 11th March, 1996 and the judgment and decree dated 1st July, 1995, are modified accordingly. RSA Nos. 37-72/1996 are disposed of. No order as to costs.