Delhi High Court
Hari Kishore vs B.S.E.S.Yamuna Power Ltd. on 29 August, 2011
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3263/2007
Decided on 29.08.2011
IN THE MATTER OF :
HARI KISHORE ..... Petitioner
Through: Mr. P.K.Puri, Advocate
versus
B.S.E.S.YAMUNA POWER LTD. ..... Respondent
Through: Mr.K.Dutta and Mr.Manish Srivastava
Advocates
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may
be allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
HIMA KOHLI, J. (Oral)
1. This case has been returned by the Secretary, Delhi High Court
Legal Services Committee with an observation made in the proceeding
dated 17.02.2011 to the effect that none was present for the petitioner.
2. Counsel for the petitioner states that this case was never forwarded
to the Continuous Lok Adalat. He also draws the attention of this Court to
the order dated 14.02.2011 to state that the present writ petition was
never directed to be placed before the Secretary, Delhi High Court Legal
Services Committee, along with the other petitions.
3. Perusal of the order dated 14.02.2011 reveals that the present writ
petition does not find any mention in the aforesaid order. Furthermore,
as per the proceedings recorded in the order dated 16.12.2010, this case
was renotified for 14.02.2011. It appears that the orders passed on
14.02.2011 in some other batch of matters came to be erroneously
placed in the proceeding sheets of the present file. In any event, counsel
for the parties state that this is not a fit case for being sent to the
Continuous Lok Adalat to explore a settlement and the case may be heard
and decided on merits.
4. The present petition is filed by the petitioner praying inter alia for
issuance of a writ in the nature of certiorari, for quashing the speaking
order dated 11.4.2007 passed by the respondent pursuant to an
inspection carried out at the premises of the petitioner on 6.11.2006 and
a demand raised on account of theft of electricity, for a sum of
`4,84,500/-, with due date of payment as 26.4.2007.
5. Counsel for the petitioner states that the impugned speaking order
and the impugned demand raised by the respondent on the basis of theft
assessment are liable to be quashed for the reason that the respondent
had arrived at a settlement with the petitioner before the Mediation
Centre, Tis Hazari Courts on 19.2.2007, which was duly accepted by the
learned ADJ vide order dated 20.2.2007 passed in a civil suit instituted by
the petitioner. He states that under the settlement, the petitioner had
agreed to pay a sum of `4,43,424/- to the respondent, after it was agreed
between them that the respondent would waive the late payment
surcharge, as indicated in the bill for February 2007.
6. Counsel for the respondent opposes the present petition on the
ground that the bill sought to be quashed by the petitioner in the present
proceeding was raised only in April 2007, whereas the settlement arrived
at before the Tis Hazari Courts, Delhi was in a suit instituted by the
petitioner on 09.01.2007 for declaration, mandatory and permanent
injunction against the respondent. In the suit proceedings, a bill of
`4,88,900 raised by the respondent for the billing month of December
2006 was assailed by the petitioner(plaintiff in the suit proceedings) on
the ground that the said bill did not give the details of the arrears
amounting to `1,38,077.25 paise shown therein. He therefore states that
the cause of action arising out of the speaking order dated 11.4.2007,
pursuant to which the impugned bill of `4,84,500/- with due date of
26.04.2007 was raised, could not have been the subject matter of
settlement before the Mediator in the suit proceedings initiated by the
petitioner in January 2007.
7. Counsel for the petitioner however insists that the speaking order
dated 11.04.2007 and the bill raised pursuant to an inspection dated
6.11.2006 were also the subject matter of settlement before the
Mediation Centre and the same came to be fully settled between the
parties upon the petitioner agreeing to pay a sum of `4,43,424/- to the
respondent.
8. This Court has heard the counsels for the parties and perused the
documents placed on record.
9. In the first instance, a perusal of the plaint filed by the petitioner, in
the trial court, for declaration, mandatory and permanent injunction
shows that in para 19, which is the para setting out the cause of action,
there is no mention of the inspection carried out by the respondent at the
premises of the petitioner on 06.11.2006. As far as para 3 of the plaint is
concerned, there is a passing reference of BSES YPL (defendant in the suit
proceedings) having removed the meter on 06.11.2006 and installing
another meter therein. It is clear from a conjoint reading of the
averments made in the plaint that the bill impugned by the petitioner in
the suit proceedings was raised for the month of December 2006 and the
same was for a sum of `4,88,900/-. It is further averred in the plaint that
the said bill showed that a late payment surcharge of `51,283.42 paise
was imposed, which related to the old meter reading.
10. A perusal of the proceedings sheet dated 19.2.2007 before the
Mediation Centre, Tis Hazari Courts shows that the subject matter of
mediation was only the cause of action as mentioned in the suit instituted
by the petitioner for injunction. It is in that context that the settlement
was reached between the parties to the effect that the respondent would
waive the late payment surcharge in the bill raised for the month of
February 2007, with a due date of 2.3.2007 and the net amount to be
paid by the petitioner(plaintiff in the suit) would be `4,43,424/-. There is
no mention in the mediation proceedings of any other dispute between
the parties, which was referred or required to be settled between them.
Furthermore, the order dated 20.2.2007 passed by the learned ADJ and
placed on record also shows that the trial court accepted the settlement
as recorded before the Mediator in the proceedings held on 19.2.2007, as
a complete settlement of all disputes between the parties for which the
suit was instituted and based on this settlement, the suit was disposed of.
11. In the aforesaid background, the submission of the counsel for the
petitioner that the impugned demand raised by the respondent on the
petitioner by virtue of the bill with due date of 26.4.2007, for a sum of
`4,84,500/- was also the subject matter of the settlement before the
Mediator appointed in the suit proceedings, initiated earlier to the passing
of the impugned speaking order dated 11.4.2007, is untenable and
rejected. In fact, the speaking order dated 11.4.2007 came to be passed
by the respondent after issuance of a notice to show cause to the
petitioner on 3.3.2007, subsequent to the passing of the order dated
20.02.2007 by the learned ADJ in the suit proceedings. The challenge
laid by the petitioner to the speaking order dated 11.4.2007 and the
impugned bill for the amount of `4,84,500/- on the above ground
therefore fails and the petition is dismissed, while leaving the parties to
bear their own costs.
12. At this stage, counsel for the petitioner states that the petitioner be
given one last opportunity to explore the possibility of arriving at a
negotiated settlement with the respondent in respect of the bill for
`4,84,500/- before the Continuous Lok Adalat. While maintaining the
order passed above, parties are directed to appear before the Continuous
Lok Adalat on 7.9.2011, on which date both the parties shall be present
along with their respective counsels. The Registry shall forward the file of
this case before the Continuous Lok Adalat to assist it in understanding
the background of the dispute between the parties.
(HIMA KOHLI)
AUGUST 29, 2011 JUDGE
mk
