North Delhi Power Ltd vs Indian Hydraulic Industries (P) ...
2012 Latest Caselaw 2044 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 12201/2009 & C.M.No.12423/2009(stay)

                                   Date of Decision: 26th March, 2012.

IN THE MATTER OF:

NORTH DELHI POWER LTD                                ..... Petitioner
                   Through:        Mr. K. Datta, Adv. for Mr.Manish
                                   Srivastava, Adv.

                  versus



INDIAN HYDRAULIC INDUSTRIES (P) LTD AND ANR ..... Respondents

Through: Mr. P.K. Malik, Adv. for R-1.

Mr. S.C. Gupta, Adv. for R-2.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J (Oral)

1. The petitioner/NDPL is aggrieved by the order dated 31.08.2009

passed by the Consumer Grievance Redressal Forum (CGRF) for NDPL

on a complaint filed by the respondent No.1/Consumer for refund of

the excess amount stated to have been recovered from it by the

predecessor-in-interest of the petitioner on account of the delay in

reduction of load from LIP to SIP category.

2. By the impugned order dated 31.08.2009, two preliminary

objections raised by the petitioner as to the maintainability of the

complaint filed by respondent No.1, firstly that the matter was liable

to be referred to arbitration in accordance with the terms and

conditions of the agreement governing the parties and secondly, that

the complaint was barred by limitation, were turned down.

3. Briefly stated, the facts of the case are that on 15.02.1980

respondent No.1/Consumer had entered into an agreement with the

predecessor-in-interest of the petitioner, namely, Delhi Electricity

Supply Undertaking (DESU) for the supply of bulk energy. The said

agreement contained an arbitration clause. On 27.07.1992,

respondent No.1/Consumer had approached DESU for reduction of

load. Correspondence was exchanged between the respondent No.1/

Consumer and DESU from the year 1992 to 1999 for completion of the

commercial formalities for reduction of load. As per the respondent

No.1/Consumer, in the year 1999, it had completed all the requisite

commercial formalities and its load was reduced accordingly. It is the

case of respondent No.1 that thereafter, it exchanged voluminous

correspondence with the petitioner/NDPL till May, 2005 seeking refund

of the purported excess charges recovered from it by the predecessor-

in-interest of the petitioner.

4. The stand of the respondent No.1/Consumer is that vide letter

dated 21.07.2005, the petitioner had informed it that as per the

records, the load had not been converted from LIP to SIP due to non-

completion of some commercial formalities. Respondent No.1/

Consumer was, therefore, directed to contact the office of the

petitioner for resolving the said issue. Respondent No.1/Consumer

claims that meetings took place between its officers and the petitioner

and finally in the year 2008, it approached the Monopolies and

Restrictive Trace Practices (MRTP) Commission claiming a refund of

the excess amount of `23,90,162.51 with interest from the petitioner.

5. As per the records, the aforesaid complaint filed by respondent

No.1/Consumer before the MRTP Commission was disposed of vide

order dated 02.09.2008 observing inter alia that there was an

Authority appointed under the Electricity Act, 2003 to deal with such

matters. As a result, the respondent No.1/Consumer was granted

liberty to approach the said Authority. Thereafter, respondent No.1/

Consumer filed a complaint case before the Consumer Grievance

Redressal Forum (CGRF) praying inter alia for refund of the excess

amount of `23,90,162.51 with interest @ 18% payable from December,

1997 and a further amount of `70,821/- with interest @18% payable

from September, 1996 and a sum of `10,00,000/- as compensation.

6. Upon notice being issued to the petitioner/NDPL in the aforesaid

complaint case, preliminary objections were raised by the

petitioner/NDPL as regards the maintainability of the said petition.

One of the objections raised was that the dispute related to the year

1993 and, therefore, the case was hopelessly barred by limitation.

7. The preliminary objections raised by the petitioner/NDPL were

considered and overruled by the CGRF in the impugned order dated

31.08.2009. Aggrieved by the aforesaid order, the petitioner/NDPL

has approached this Court in this petition.

8. Counsel for the petitioner/NDPL submits that the impugned order

is erroneous and liable to be set aside for the reasons that the CGRF

failed to appreciate the fact that the limitation for taking any action

against the petitioner for refund of the alleged excess amount paid by

respondent No.1/Consumer had expired in the year 1995 itself for the

reason that the limitation prescribed for taking such an action for

recovery of money is three years and the cause of action in the

present case had accrued in favour of respondent No.1/Consumer in

the year 1992-93. He further urged that reliance placed by respondent

No.1/Consumer on the letter dated 21.07.2005 issued by the

petitioner to it to come for a meeting for settlement of the grievance,

cannot be treated as an acknowledgement of dues within the meaning

of the Limitation Act and in any case, the said letter only referred to

the non-completion of some commercial formalities on the part of

respondent No.1/Consumer for converting the connection from LIP to

SIP. Further, it is submitted that it is not the case of respondent

No.1/Consumer that the conversion of the load had taken place in the

year 2005 rather, it is the stand of respondent No.1 in its complaint

that the petitioner had converted the load from LIP to SIP in the year

1999.

9. This court has heard the counsels for the parties and perused the

impugned order. The facts of the case as narrated above are

undisputed and, therefore, need not detain the Court. The only issue

that has been argued on behalf of the petitioner is that while

dismissing the objections raised by the petitioner/NDPL with regard to

limitation, no reasons whatsoever have been assigned for the same by

the CGRF.

10. A perusal of the impugned order reveals that after taking note of

the stand of both the sides as also the decisions relied upon by the

counsels for the parties, the CGRF had observed that prima facie the

case indicated that the request for reduction of load had been initially

made by the complainant in July, 1992 and the tariff had been

changed from LIP to SIP in the month of March, 1999. It was further

observed that the complainant (respondent No.1 herein) had sought

relief to the extent of `80 lacs approximately in the case.

Immediately thereafter, comes the operative para of the impugned

order wherein the CGRF has overruled the preliminary objections

raised by the petitioner/NDPL with regard to the arbitration clause

governing the parties and the limitation aspect and then proceeded to

adjourn the case for hearing arguments on merits.

11. There is no discussion, much less any reasoning reflected in the

impugned order for arriving at the aforesaid conclusion. The stand

taken by the petitioner/NDPL that the complaint filed by respondent

No.1/Consumer was barred by limitation as the cause of action had

arisen in the year 1993 whereas, it had not filed any claim before any

judicial forum till as late as the year 2008 when it approached the

MRTP Commission for the first time, is borne out from the records and

the same has not even been disputed by the respondent

No.1/Consumer.

12. The submission of the counsel for respondent No.1/Consumer

that the letter dated 21.07.2005 issued by the petitioner/NDPL gives a

fresh cause of action to the respondent No.1/Consumer is untenable

for the reason that a perusal of the aforesaid letter reveals that the

petitioner had only replied to the request made by the respondent

No.1 for refund of the security and the purported excess charges

deposited by it, in the light of the completion of the commercial

formalities and it was not as if the petitioner/NDPL had acknowledged

that any outstanding dues were to be refunded by it to the respondent

No.1/Consumer.

13. It is also relevant to note that the cause of action for filing a

claim of recovery against the petitioner/NDPL had accrued in favour of

respondent No.1/Consumer way back in the year 1993. Even if, the

period of three years is reckoned from the year 1999, i.e., the year

when the connection was apparently converted from LIP to SIP, it

would have taken the respondent No.1/Consumer upto the year 2002

and not beyond that. Respondent No.1, however, approached the

MRTP Commission after a period of six years therefrom, i.e., in the

year 2008 and it approached the CGRF after a period of seven years

therefrom, i.e., in the year 2009. While the complaint of the

respondent No.1/Consumer filed before the MRTP Commission was

rejected with liberty granted to it to approach the appropriate forum

under the Electricity Act, it is a matter of record that respondent No.1

approached the CGRF only in the year 2009, after about six months

after the order of the MRTP Commission was passed. Even in the

complaint filed before the CGRF, respondent No.1 had again claimed

that the period of limitation stood extended in its favour by predicating

its case on the letter dated 21.07.2005 addressed by the petitioner to

it.

14. The fact remains that for the purpose of calculating limitation,

only the complaint filed by the respondent No.1/Consumer is required

to be examined and a perusal of the application filed by it before the

CGRF reveals that the respondent No.1 had itself acknowledged in

paras 27 and 30 thereof that the petitioner/NDPL had converted the

connection from LIP to SIP in March, 1999 and it had installed a new

meter on the basis of completion of commercial formalities, that had

taken place long ago. In such circumstances, the complaint of

respondent No.1/Consumer was not maintainable before the CGRF, the

same being hopelessly barred by limitation.

15. At this stage, counsel for respondent No.1/Consumer states that

if the petitioner/NDPL had a grievance against the order of the CGRF,

it was for it to have approached the Ombudsman by preferring an

appeal instead of filing the present petition. The aforesaid submission

is, however, devoid of merits for the reason that sub-section 6 of

Section 42 of the Electricity Act, 2003 prescribes that a consumer, who

is aggrieved by non-redressal of grievance before the CGRF can

approach the Ombudsman in appeal but the said provision does not

give any such option to the Discom like the petitioner herein. In such

circumstances, reliance placed by learned counsel for respondent

No.1/Consumer on the Delhi Electricity Regulatory Commission

(Guidelines for establishment of Forum for Redressal of Grievances of

the Consumers and Ombudsman) Regulations, 2003 cannot be of any

assistance as the Regulations have been framed under the Act. In any

case, even Regulation 19, referred to by the counsel for the

respondent No.1/Consumer, does not empower the Ombudsman to

entertain an appeal filed by a Discom as the said forum is empowered

to receive representations only from the complainants aggrieved by an

order of the Forum.

16. In view of the aforesaid facts and circumstances, the present

petition succeeds and the same is allowed. The impugned order dated

31.08.2009 passed by the CGRF is quashed and set aside and it is held

that the complaint filed by the respondent No.1/Consumer is

hopelessly barred by limitation and, therefore, rejected.

17. Parties are left to bear their own costs.

(HIMA KOHLI) Judge MARCH 26, 2012 'anb'/sk