M/S Radha Ballab Electricals vs B.S.E.S. Rajdhani Power Ltd. & ...
2012 Latest Caselaw 5946 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
13
+                               O.M.P. 120 of 2006

        M/S RADHA BALLAB ELECTRICALS                    ..... Petitioner
                     Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                     Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR.               ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                With
14
+                               O.M.P. 121 of 2006

        PRAMOD KUMAR SINGHAL AND ANR                  ..... Petitioners
                   Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                   Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR                ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                        With
15
+                               O.M.P. 122 of 2006

        M/S VISHWAKARMA ELECTRICALS                     ..... Petitioner
                    Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                    Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR.                ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                With
16
+                               O.M.P. 123 of 2006
OMP No. 120 of 2006 & connected petitions                         Page 1 of 9
         M/S. VISHWAKARMA ELECTRICALS                 ..... Petitioner
                     Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                     Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR               ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                With
17
+                               O.M.P. 124 of 2006

        M/S. RAJ ELECTRICALS                              ..... Petitioner
                       Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                       Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR.               ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                With
18
+                               O.M.P. 125 of 2006

        SANJAY KUMAR SINGHAL                            ..... Petitioner
                     Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                     Advocates.
                Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR                 ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                        With
19
+                               O.M.P. 126 of 2006

        M/S. RAJ ELECTRICALS                             ..... Petitioner
                       Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                       Advocates.
OMP No. 120 of 2006 & connected petitions                         Page 2 of 9
                         Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR                ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                With
20
+                               O.M.P. 127 of 2006

        ANIL KUMAR SINGHAL AND ANR                     ..... Petitioners
                     Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                     Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR                ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                With
21
+                               O.M.P. 128 of 2006

        M/S. VISHWAKARMA ELECTRICALS                   ..... Petitioner
                     Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                     Advocates.

                        Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR              ..... Respondents
                       Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                       Advocates.

                                And
22
+                               O.M.P. 129 of 2006

        M/S. RAJ ELECTRICALS                              ..... Petitioner
                       Through: Mr. Arpan Bahl with Mr. Sumeet Anand,
                       Advocates.
                  Versus

        B.S.E.S. RAJDHANI POWER LTD. & ANR                   ..... Respondents
OMP No. 120 of 2006 & connected petitions                          Page 3 of 9
                                 Through: Mr. M.S. Vinaik with Mr. A.K. Mishra,
                                Advocates.

        CORAM: JUSTICE S. MURALIDHAR

                                   ORDER

% 04.10.2012

I.A. No. 16244 of 2012 (for restoration) in OMP No. 120 of 2006 I.A. No. 17366 of 2012 (for restoration) in OMP No. 121 of 2006 I.A. No. 17369 of 2012 (for restoration) in OMP No. 122 of 2006 I.A. No. 17373 of 2012 (for restoration) in OMP No. 123 of 2006 I.A. No. 17367 of 2012 (for restoration) in OMP No. 124 of 2006 I.A. No. 17363 of 2012 (for restoration) in OMP No. 125 of 2006 I.A. No. 17368 of 2012 (for restoration) in OMP No. 126 of 2006 I.A. No. 17358 of 2012 (for restoration) in OMP No. 127 of 2006 I.A. No. 17364 of 2012 (for restoration) in OMP No. 128 of 2006 I.A. No. 17365 of 2012 (for restoration) in OMP No. 129 of 2006

1. For the reasons stated therein, these applications are allowed. The petitions are

restored to their files.

2. The applications are disposed of.

OMP Nos. 120 of 2006, 121 of 2006, 122 of 2006, 123 of 2006, 124 of 2006, 125 of 2006, 126 of 2006, 127 of 2006, 128 of 2006 and 129 of 2006

3. The central issue in all these petitions under Section 34 of the Arbitration and

Conciliation Act, 1996 ('Act') is the same. In each of the petitions, the challenge

is to an impugned Award of the learned sole Arbitrator rejecting the claim of the

Petitioners against the Respondent No. 1 (in all petitions) B.S.E.S. Rajdhani

Power Limited ('BRPL') praying for rebate towards transmission and

distribution ('T&D') losses and/or aggregate technical and commercial

('AT&C') losses arising out of single point delivery connection ('SPDC').

4. The SPDC was granted to each of the Petitioners by the Delhi Vidyut Board

('DVB'), predecessor-in-interest of BRPL by way of an agreement. Each of the

Petitioners was to provide electricity through the SPDC to the residents of

unauthorized colonies. Two clauses of the agreement relevant for the claim of

each of the Petitioners read as under:

"10. Minimum Revenue

The agency shall have to pay minimum revenue for 75% of the electricity energy as recorded in the meter(s) shall be provided by DVB for measurement of the bulk energy. The meter(s) shall be jointly read on monthly basis by the representative of DVB not below the rank of the Assistant engineer and an authorized representative of the agency.

13. Commission

For the services rendered, the agency shall be paid commission of twenty five per cent (25%) of the revenue paid to DVB for the bulk supply."

5. On 30th June 2002 DVB was unbundled and BRPL stepped into its shoes with

effect from 1st July 2002. The same SPDC agreements continued between the

Petitioners and BRPL. The case of the Petitioners was that they suffered huge

losses on account of T&D/AT&C in the range of 55% to 60%. It was stated that

since BRPL had been given a rebate by Delhi Transco Limited ('DTL') for T&D

losses, the same rebate should correspondingly be transferred to the Petitioners.

According to the Petitioners, the Chairman of the DVB had in various meetings

held with the Petitioners and other SPDC providers acknowledged that they

were suffering heavy losses on account of theft of electricity and distribution

losses. The Petitioners claim that it was agreed in the meetings that SPDC

Contractors should be treated as partners and not as agents.

6. Initially the Petitioners approached the Permanent Lok Adalat ('PLA'). By an

order dated 1st September 2003 the Presiding Officer of the PLA recommended

that a settlement of the disputes could be reached with the SPDC Contractors if

they were given a rebate of 15% in the form of T&D and AT&C losses.

However, when BRPL did not accept the suggestion, the disputes were referred

to arbitration.

7. Before the learned Arbitrator, the Petitioners filed an application under

Sections 24 and 25 of the Act for permission to lead evidence and direct BRPL

to produce documents referred in para 7 which included a copy of the

notification dated 31st May 2002 which fixed the opening levels of AT&C

losses, the agreement executed between the parties, concerned official from

BSES along with record and entire bills pertaining to meter of the Petitioners

and records pertaining of the minutes of meeting held on various dates between

Chairman of the DVB and SPDC Contractors. An application was also filed

under Section 27 of the Act for summoning the witnesses whose details were

given in para 5 of the application.

8. The learned Arbitrator rejected the prayers in both the applications. In the

impugned Award, the learned Arbitrator noted that the request for leading

evidence was declined primarily on the ground that the dispute between the

parties only required interpretation of a few clauses of the agreement. It did not

involve a finding on facts. The learned Arbitrator in the impugned Award then

proceeded to hold that there was no clause in the agreement which required the

BRPL to compensate the Petitioners for T&D and AT&C losses. It was held

that a reading of Clauses 10 and 13 of the agreement made it clear that the said

clauses were only to ensure minimum revenue and commission. Nowhere had

the Petitioners stated that in the meetings held with the Chairman of the DVB an

agreement had been reached that the Petitioners would be granted any with

further rebate and discount. Accordingly, the claims of the Petitioners were

rejected.

9. Learned counsel for the Petitioners first submitted that the learned Arbitrator

ought not to have rejected the Petitioners' application under Section 27 of the

Act for permission to summon the witnesses mentioned in the said application.

This would have enabled the Petitioners to prove the agreement between the

parties as regards rebate for the T&D/AT&C losses. It is submitted that the

learned Arbitrator also erred in the interpretation of the clauses of the agreement.

10. The central issue for the learned Arbitrator in all the petitions was whether

the Petitioners were entitled to rebate for the T&D/AT&C losses. The

relationship between the Petitioners on the one hand and the BRPL and its

predecessor-in-interest on the other was governed by the agreement entered into

between the Petitioners and BRPL/DVB. The parties were bound by the terms of

the said agreement. There was no clause in the agreement for providing the

compensation to the Petitioners in respect of T&D/AT&C losses. In the absence

of any written agreement between the parties the Petitioners could not possibly

claim that they were entitled to such compensation for losses. Reference by the

Petitioners to the meetings held with the Chairman of the DVB is only for the

limited purpose of stating that the Chairman acknowledged the losses that had

been suffered by the Petitioners on account of T&D/AT&C losses. Nowhere had

the Petitioners pleaded that in the said meetings, minutes of which had been

maintained, there was anything mentioned about the recording of any agreement

reached between the parties that the Petitioners would be compensated for

T&D/AT&C losses.

11. In the applications filed before the learned Arbitrator by them under Sections

24 and 25 of the Act and Section 27 of the Act there is no submission by the

Petitioners that there was any express agreement reached between the parties

regarding the compensation for AT&C/T&D losses suffered by the Petitioners.

In the said applications, there are several documents and circulars which should

be brought by the Petitioners in order to effectively adjudicate the claim. In the

absence of any averment by the Petitioners that there was an express agreement

between the parties for compensating the Petitioners for AT&C/T&D losses, the

allowing of merely summoning the witnesses along with the records would not

really serve any purpose. Rejection of the said request by the learned Arbitrator

cannot therefore be held to be erroneous.

12. As rightly pointed out by the learned Arbitrator, the decision on the claims of

the Petitioners only involved the interpretation of the clauses of the agreement.

There was in fact no clause which provided for rebate on account of

T&D/AT&C losses. The Petitioners ought to have necessarily based their claims

only on the agreement between the parties.

13. Consequently, the finding of the learned Arbitrator that the Petitioners were

not entitled to seek benefit of any T&D/AT&C losses from the BRPL, is

consistent with the clauses of the agreement and does not suffer from any patent

illegality. The rejection of the Petitioners' claim by the learned Arbitrator in the

impugned Award is accordingly upheld.

14. Consequently, there is no merit in these petitions and they are dismissed as

such, but in the facts and circumstances of the cases, with no order as to costs.

S. MURALIDHAR, J OCTOBER 04, 2012 Rk