Delhi High Court
Birla Textiles vs Municipal Corporation Of Delhi ... on 25 February, 2003
Equivalent citations: 2003 IIAD Delhi 476, 2003 (2) ARBLR 155 Delhi, 103 (2003) DLT 449, 2003 (67) DRJ 534, 2003 (2) RAJ 140
Author: R Jain
Bench: R Jain
JUDGMENT
R.C. Jain, J.
1. Mr. Justice S. Joshi (Retd.) a retired Judge of this Court was appointed as Sole Arbitrator vide order dated 29.9.81 in suit No.31-A of 1981 to adjudicate upon the disputes between the Birla Textiles formally knows as the Birla Cotton Spinning & Weaving Mills Ltd and the petitioner/objector and the MCD in regard to certain surcharge levied by the MCD for alleged misuse of the electrical energy by the petitioner during the periods September to December 1980. The Sole Arbitrator entered the reference and made his award dated 6.9.85. On being noticed about the filing of the award, the petitioner has filed a petition/objection under Section 30 of the Arbitration Act 1940 (in short the "Act") thereby challenging the award of the Arbitrator and praying that the same be set aside on the ground that there are errors apparent on the face of the record and the Arbitrator has misconducted the proceedings inasmuch as it has failed to consider the true scope of Section 283 of the Municipal Corporation Act read with Section 23 of the Indian Electricity Act providing that the charges can be levied on the supply of electricity by the Corporation at such rates as may be fixed by the Delhi Electric Supply Committee and that the licensee may charge for energy supplied by him to a consumer either for the actual amount of energy so supplied or for the electrical quantity contained in the supply or by such other levy as may be approved by the State Government; the Arbitrator failed to consider the main point if there was an excessive load on 25th October 1980 as according to the petitioner the total connected load with the DESU was 5059.25 HP but the learned Arbitrator held that it was 6021 H.P. without assigning any reason; the learned Arbitrator failed to consider that the bills for the month of September-October had already been paid in full and thereafter a combined bill for the months September-October and October-November 1980 were sent by the Corporation in which the surcharge for both the months was included; the learned Arbitrator also failed to consider that no late payment charge was payable on the bills already paid and inspite of that the Arbitrator has held that surcharge of 2% was payable on the amount of remaining unpaid amount.
2. The respondent-MCD contested the objections by filing its reply. Various grounds on which the award of the Sole Arbitrator is sought to be challenged have been controverter and it is denied that there is any error apparent on the face of the award or any ground on the strength of which the award is liable to be set aside.
3. I have heard Shri T. K. Ganju, learned counsel for the petitioner/objector but did not have the advantage of hearing the arguments of the counsel for the respondent as there was no representation on behalf of the respondent since past several hearings.
4. The main thrust of the arguments of the learned counsel for the petitioner/objector is that the learned Arbitrator failed to consider that the bills for the months of September-October 1980 had been paid in full and thereafter the respondent was not entitled to send a combined bill for the months of September-October and October-November 1980 therein including the surcharge for even the months of September and October although the correspondence exchanged between the parties would show that the surcharge was to be levied only for one month. This ground was controverter by the respondent on the premises that it was no raised before the learned Arbitrator put at the same time conceding that if there was any accounting mistake, the respondent is willing to reconcile the same.
5. The Arbitrator had framed a number of issues in order to adjudicate upon the disputes raised before me. Issue No.3 read as under:
" Whether the provisions as to 25% surcharge in the tariff constitutes penal stipulation and cannot be enforced?"
6. Arbitrator has answered this issue in negative thereby holding that due to peculiar circumstances of electric energy supplied, the provisions cannot be said to be penal. Learned counsel for the petitioner/objector has not challenged this finding of the Arbitrator but has contended that there is in fact a mistake in calculations so far as the combined bill is concerned. In this connection attention has been invited to the bill for October and November 1980. A perusal of this bill would show that the bill takes into account the consumption of electric energy during the period 25.9.80 to 30.11.80 being Rs.36,01,602/ and the charges have been worked out by adding 25% surcharge amounting to Rs.3,82,452.68 paisa. After adjusting the payment of Rs. 8,79,937.07/-paisa in respect of the bill of October, 1980, the bill for the balance amount for Rs.12,29,747.65 paisa has been drawn. Learned counsel for the petitioner/objector has vehemently urged that once the bill for the month of October amounting to Rs. 7,73,631.70/- had been paid the respondent was not entitled to add a surcharge of Rs. 1,93,407.77/- paisa at the rate of 25% on the said bill and at best the petitioner was liable to pay the surcharge on the bill of November 1980 only. There seems to be force in this argument because even as per the respondent's plea in respect of ground (8) of the petition the respondent had offered to correct any calculation, mistake in working out the exact amount payable. It seems that the attention of the Arbitrator has escaped to take note of this factual position and had it been considered the Arbitrator would have certainly given a credit of this amount to the petitioner. This Court, is therefore of the considered opinion that the petitioner/objector was not liable to pay the entire amount of surcharge amounting to Rs. 3,82,452.63 paisa at the rate of 25% for the months of October and November 1980 and was only liable to pay the surcharge for the month of November, 1980, the inspection of the premises, having being conducted and misuse detected only towards the end of October 1980. Accordingly the award is liable to be set aside/modified to the above extent.
7. In the result the objections are partly allowed and the Award of the Arbitrator is hereby partly set aside/modified to the extent that the petitioner was liable to pay the surcharge of Rs.1,89,050.80/-paisa i. e. on the bill of November 1980 and he was not liable to pay the surcharge of Rs. 3,82,452.63 paisa and consequently the petitioner/objector is entitled to a credit of Rs. 1,93,407.77 paisa. The award will stand modified to this extent and the so modified award is accordingly made a rule of the Court. Let a decree sheet be drawn in terms of the modified award.
