Standing Conference Of Public ... vs Bses Rajdhani Power Limited & Ors.
2013 Latest Caselaw 233 Del

       *         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment reserved on: 09.01.2013
                                         Judgment pronounced on: 16.01.2013.

+      LPA 778/2012
       STANDING CONFERENCE OF PUBLIC ENTERPRISES .... Appellant
                                   Through:       Mr.Jayant Nath, Sr.Adv.               with
                                                  Mr.B.C.Pandey, Advs.
                     versus
       BSES RAJDHANI POWER LIMITED & ORS.                             ..... Respondents
                              Through:      Mr.K.Datta,     Adv.     with    Mr.Manish
                                            Srivastava, Adv. for BSES Rajdhani Power
                                            Ltd. Mr.Sumeet Pushkarna, CGSC for R-
                                            2/DPCL. Ms.Pratima Gupta, Adv. with
                                            Mr.Ankit Goel, Mr.Sandeep Gupta, Advs.
                                            for R-3. Mr.Nitin Saluja, Adv. for Mr.Najmi
                                            Waziri, Standing Counsel for R-4/GNCT of
                                            Delhi.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

The appellant obtained two electric power connections from erstwhile Delhi

Vidyut Board (DVB) and had been making payment of the electricity bills, first to

the erstwhile DVB and, thereafter to BSES Rajdhani Power Limited (BSES), which

is respondent No. 1 in this appeal. The case of the appellant is that till July, 1999,

the billing used to be on the basis of Two Part Tariff, comprising of the demand

charges corresponding to the maximum demand in the first part and Energy

Charges for the aggregate consumption in the second part. Thereafter, DVB started

clubbing the maximum demand of two meters for calculating billing demand and

demand charges against each connection. In view of clause No. 17 of the

agreement, which the appellant had with DVB and which required it to pay the bills

notwithstanding any difference or dispute as to the accuracy of the sums involved

in the bills and which entailed disconnection of the supply in the event of non-

payment of the bills, the appellant continued to pay bill on the revised basis from

July, 1999 to May, 2001 though under protest. According to the appellant, an

excess amount of Rs 1,81,55,924/- was thus recovered from it. This is also the

case of the appellant that the liability to refund the aforesaid amount was admitted

by BSES in a letter dated 25.09.2004 which it wrote to Delhi Transco Limited.

Since the aforesaid amount was not refunded to the appellant, a writ petition filed

by it, claiming the aforesaid amount along with interest at the rate of 18% per

annum, amounting to Rs 3,10,46,630/-. The appellant also claimed a direction to

the respondents to pay Rs 25 lakh to it being the expenditure incurred by it in

hiring the services of experts and consultants and towards damages.

2. The writ petition was contested by BSES, inter alia, on the ground that writ

was not the remedy available to the appellant since the agreement between the

appellant and DVB contained an arbitration clause, writ petition does not lie for

recovery of an amount under a contract and claim of the appellant/writ petitioner

were barred by limitation.

3. The learned Single Judge vide impugned order dated 04.10.2012, dismissed

the writ petition, inter alia, holding that the writ petition was not maintainable to

enforce a civil liability arising out of a breach of a contract unless the liability arose

out of statutory functions of the State and the claim of the petitioner/appellant did

not fall in the said exception, the writ petition for refund of money could not be

entertained and there was a serious issue on the question of limitation. The learned

Single Judge also took the view that the claim for damages cannot be the subject

matter of a writ petition. Being aggrieved, the writ petitioner is before us by way

of this appeal.

4. The first question which arises for consideration in this appeal is as to

whether a civil suit for recovery of the amount claimed in the writ petition, had it

been filed by the appellant on the date of filing of the writ petition, would have

been barred by limitation. The learned Single Judge, on going through various

Articles in the Schedule to the Limitation Act, 1963, came to the conclusion that

since there is no specific Article governing the suits for recovery of such an

amount, the residuary Article 113 would apply to such a suit and the period of

limitation would be three years from the date when the payment was made. The

plea taken in the appeal is that it is Article 26 of Limitation Act which would apply

to a civil suit of this nature. Article 26 of the Schedule to the Limitation Act

prescribes limitation period of three years in respect of the suit for money payable

to the plaintiff for money found to be due from the defendant to the plaintiff on

accounts stated in them and the period of limitation commences when the accounts

are stated in writing signed by the defendant or his agent duly authorized in this

behalf, unless where the debt is, by a simultaneous agreement in writing signed as

aforesaid, made payable at a future time, and then when that time arrives. Stating

the account means settlement of accounts. Article 26 of the Limitation Act refers

to a case where a balance is struck after adjusting several items of credit and debit,

constituting the account between the parties. Mere making of claim by one party

and its admission by the other would not be governed by Article 26 of Limitation

Act though it would be a case of admission or acknowledgement of the debt by the

other party. This Article refers to an account containing items both on credit and

debit side, where the figures on both the sides are adjusted between the parties and

a balance is struck, the consideration for the payment of balance being the

discharge of items on each side. Reference in this regard can be made to Gordon

Woodroffe and Co. (Madras) Ltd. v. Shaik M.A. Majid and Co. AIR 1967 SC 181

and Bishun Chand v. Girdhari Lal AIR 1934 PC 147. In an account, which is

stated or settled within the meaning of this Article, it is not open to the parties to

prove that a higher or lesser amount was due. Such an account when stated in

writing and signed by the defendant or its agent may tantamount to a new contract,

possibly constitute a substantive cause of action in itself and a suit may possibly be

maintained on it. Such account can be reopened only on the grounds of fraud of

mistake which would justify setting aside any other agreement. In fact, the view

taken by Goa and Madras High Court in Prabhakar Fatoo Dessai v. Vassudeva

Narayan Sarmalkar AIR 1976 Goa 53 and N. Ethirajulu Naidu v. K.R.

Chinnikrishnan Chettiar AIR 1975 Madras 333 (DB) is that where the entire debt

has become time barred by the time when the settlement of accounts are made, the

same would not amount to a cause of action nor could it provide a fresh starting

unless it amounts to express promise within the meaning of Section 25(3) of the

Contract Act. We, however, need not delve further into this aspect since, as stated

hereinbelow, this is not a case of stating/settlement of account envisaged in Article

26 of Limitation Act.

5. The case of the appellant is that DVB had wrongly started clubbing the

maximum demand of the two meters for calculating billing demand and the

demand charges against each connection and it was forced to make payment of the

wrong bill so as to avoid disconnection of the electricity on account of non-

payment of amount demanded from it. The appellant is claiming a specific

identified amount, alleged to have been paid under protest, along with interest on

that amount. This amount was known at the time of payment itself, since the

appellant claims to have paid it under protest. No taking and settling of accounts

was, therefore, required to arrive at the excess amount alleged to have been paid by

the appellant. Such a claim cannot be said to be a claim for the money found due

from the defendant 'on accounts stated' between them and, therefore, the reliance

upon Article 26 of the Schedule to Limitation Act is wholly misplaced. We are in

agreement with the learned Single Judge that it is Article 113 of Limitation Act

which would govern the claim of this nature, if filed before a Civil Court.

6. In Shri Vallabh Glass Works Limited Vs Union of India [1984 3 SCC 362],

the Supreme Court took a view that Article 113 of Limitation Act applies to a suit

for recovery of excess duty paid and a suit for recovery of the said amount needs to

be filed within three years from the date of payment. In the case before us, the

excess payment is alleged to have been made between June, 1999 to May, 2001.

The prescribed period of limitation, therefore, clearly expired by May, 2004.

The case of the appellant is that the letter dated 25.9.2004 written by BSES

to Delhi Transco constitutes „acknowledgment‟ within the meaning of Section 18

of the Limitation Act. However, a fresh period of limitation from the date of the

acknowledgment of debt or liability starts only in a case the said acknowledgment

is made before the expiry of the period of limitation prescribed in the statute. This

would be evident from a bare perusal of the Section itself which opens with the

words "Where the expiration of the prescribed period for a suit or an application

in respect of any property or right an acknowledgment of liability in respect of

such property or right has been made in writing". The legal proposition in this

regard was approved by the Supreme Court in J.C. Budhraja v. Chairman, Orissa

Mining Corporation Ltd. and Anr. (2008) 2 SCC 444, though the statutory

provisions itself being quite explicit, no reference to any precedent is really

required.

7. The next question which arises for consideration is as to whether in a writ

petition, the Court can direct payment of an amount, recovery of which has

otherwise become barred by limitation. The public policy behind the period of

limitation being prescribed by the statute has been explained as under in Halsbury‟s

Law of England (Third Edition, Vol 24), Article 330 at p. 18:

"The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim and (3) that person with good causes of action should pursue them with reasonable diligence."

8. In M/s. Tilokchand Motichand & Ors.vs. H.B. Munshi and another

1969(1) SCC 110, which is a Constitution Bench decision of the Supreme Court,

the petitioners realized sales tax from their customers outside Bombay. The Sales

Tax Officer vide order dated May 17, 1956, forfeited the amount under Section

21(4) of the Bombay Sales Tax Act, 1953. On March, 28, 1958, the petitioners

filed a writ petition seeking to restrain the Sales Tax Officer from recovering the

said amount. They also challenged the vires of Section 24(4) of Bombay Sales Tax

Act and impugned the order of forfeiture as violative of Article 19(1)(f) and 365 of

the Constitution. The writ petition having been dismissed, an appeal was filed by

them against the order whereby the petition was dismissed. On dismissal of their

appeal, the amount in question was paid by them. Thereafter, the provisions of

Section 12(a)(4) of the Bombay Sales Tax Act were struck down in another matter

and a writ petition was, therefore, filed claiming refund of the amount which the

petitioners had paid on the assumption that Section 21(4) of Bombay Sales Tax Act

was also liable to be struck down on the same ground on which Section 12(a)(4)

was held to be unconstitutional. The questions which arose for decision by the

Supreme Court were as to whether the claim of the petitioners would be barred by

limitation if it were the subject matter of a suit in February, 1968 and if so were the

petitioners entitled to relief in a petition under Article 32 of the Constitution. 3

Judges, constituting the majority of the Bench took the view that the petitioners

were not labouring under any mistake of law when they made the payment and,

therefore, the payment which they made was under coercion and the period of

limitation under Article 24 of Limitation Act, therefore, would be three years from

the date when money was received by the respondent and accordingly the suit for

recovery of the aforesaid amount would be barred by limitation. As regards the

second question, the Court noted that no period of limitation was prescribed for a

petition under Article 32 of the Constitution and the technical rules like the

provisions of Section 80 of CPC would not apply but held that this would mean

that in giving relief under Order 32, the Court must ignore and trample on foot of

loss of procedure, evidence, limitation, res judicata and the like. Dismissing the

petition, the Apex Court [Bachawat, J], inter alia, held as under:

"40. The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. Article 32 and 226 of the Constitution provide concurrent remedy in respect of the same claim. The extraordinary remedies under the Constitution are not intended to enable the claimant to recover monies, the recovery of which by suit is barred by limitation. Where the remedy in a writ application under Article 32 or Article 226 corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the court in its writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the summary remedy in the writ jurisdiction. On similar grounds the Court of Chancery acted on the analogy of the statutes of limitation in disposing of stale claims though the proceeding in a Chancery was not subject to any express statutory bar, see Halsbury‟s Laws of England, Vol.14, Page 647, Article 1190, Knox vs. Gye. Likewise, the High Court acts on the analogy of the statute of limitation in a proceeding under Article 226 though the statute does not expressly apply to the proceedings. The Court will almost always refuse to give relief under Article 226 if the delay is more than the statutory period of limitation, see State of Madhya Pradesh vs. Bhailal Bha (supra) at pp.273-274.

41. Similarly, this Court acts on the analogy of the statute of limitation in respect of a claim under Article 32 of the Constitution though such claim is not the subject of any express statutory bar of limitation. If the right to a property is extinguished by prescription under Section 27 of the Limitation Act, 1963, the petitioner has no subsisting right which can be enforced under Article 32. In other cases where the remedy only and not the right is extinguished by limitation, it is on grounds of the public policy that the court refuses to entertain stale claims under Article 32. The statutes of limitation are founded on sound principles of public policy. As observed in Whitley Stoke‟s Anglo-Indian Codes, Vol. 11, p.940, "The law is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence, and to prevent oppression. ...The other ground of public policy upon which the statutes of limitation are founded is expressed in the maxim "ingilantibus non dormientibus jura subveniunt" (2. Co. Inst. 690) the laws aid the vigilant and not those who slumber. On like grounds the court acts on the analogy of the statutes of limitation in the exercise of its jurisdiction under Article 32. It follow that the present petition must be dismissed."

Concurring with the above referred view, the Hon‟ble Mr. Justice J.K. Mittar

held that a claim based on infraction of fundamental right ought not to be

entertained if made beyond the period fixed by Limitation Act for enforcement of

the right by way of suit and that ordinarily the period fixed by the Limitation Act

should be taken to be a true measure of the time within which a person can be

allowed to raise the plea successfully under Article 32 of the Constitution. He also

took the view that a claim for money paid under coercion would be covered by

Article 113 of the Limitation Act.

In State of Madhya Pradesh vs. Bhai Lal Bhai [(1964) 6 SCC 261], the

Supreme Court, inter alia, observed that the "maximum period fixed by the

Legislature as the time within which the relief by a suit in a civil court must be

brought may ordinarily be taken to be a reasonable standard by which delay in

seeking remedy under Article 226 can be measured".

9. In view the authoritative pronouncement of the Constitution Bench of the

Supreme Court, we have no hesitation in holding that since the suit for recovery of

amount in question, had it been filed on the date the writ petition was filed, would

have been barred by limitation, it would not be appropriate for us to direct payment

of the aforesaid amount, in exercise of our discretionary jurisdiction under Article

226 of the Constitution. Taking a contrary view would result in a situation where

callous and negligent parties, who are not vigilant enough to pursue their claims

would come to the Court by way of a writ petition, wherever the claim is directed

against government or any other entity which is State within the meaning of Article

12 of the Constitution. Also we would like to refer to the well-known maxim

"delay defeat equity" and the law does not help those who are not vigilant to

protect and enforce their rights.

10. In Messrs Burmah Construction Co.Vs. The State of Orissa and others[

1962 SCR Suppl.(1) 242, a Constitution Bench of Supreme Court held as under:

"....The High Court normally does not entertain a petition under Art. 226 of the constitution to enforce a civil liability arising out of a breach of contract or a tort to pay and amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the constitution against the State or against an officer of the State to enforce a statutory obligation."

However, in the present case, the appellant is disputing the method of

computation of demand and is not seeking to enforce some statutory obligation on

the part of the respondents. The case, therefore, does not fall in the exception

carved out by the Apex Court, in the abovereferred case.

11. In Suganmal Vs. State of Madhya Pradesh and others [AIR 1965 SC

1740], the Supreme Court, inter alia, held as under:

"6. On the first point, we are of opinion that though the High Court have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the state to refund taxes illegally collected, but all such had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under Article 226 simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions. We do not consider it proper to extend the principle

justifying the consequential order directing the refund of amounts illegally realised, when the order under which the amounts had been collected has been set aside, to cases in which only orders for the refund of money are sought....." xxxx

9. We, therefore, hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil Court for claiming the amount and it is open to the State to raise all possible defenses to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction."

In the case before us, the only prayer made by the appellant is for refund of

the money alleged to have been paid under protest and no statutory provision or the

tariff fixed by DVB was challenged. Here the refund has not been claimed as a

relief consequential to the striking down of a statutory rule. This is also not the

case of the appellant that DVB had no jurisdiction to collect the amount in question

from it. The recovery of excess electricity charges is not a case of acting without

jurisdiction. It can only be a wrong application of the tariff fixed by DVB. Since

DVB had the authority of law to recover the electricity charges, it cannot be said

that it was acting without authority of law, while collecting amount in question

from the appellant.

12. The learned counsel for the appellant has refereed to Bihar State Electricity

Board and another versus M/s. Usha Martin Industries and Another,

1997(5)SCC 289 where the Supreme Court observed that tariff is fixed by exercise

of statutory power and not as a result of any bargaining by and between the Board

and the consumer who has no option but to pay the tariff fixed by the Board in

exercise of the statutory power conferred upon it. The next judgment relied upon

by him is Ashok Soap Factory and Anr. versus Municipal Corporation of Delhi

And Ors. 1993(2) SCC 37 where the Supreme Court again observed that fixation

of tariff is a legislative function and the only challenge to the fixation of such levy

can be on the ground of unreasonableness or arbitrariness. Neither of these

judgments is of help to the appellant, for the simple reason, that in the case before

us, it is not the tariff which is under challenge but the method of computation of

bill which is being challenged. This is not the case of the appellant that the tariff

fixed by DVB was illegal or unreasonable and was liable to be struck down. As

noted earlier, the case of the appellant is that the clubbing of the maximum

demands of two meters for calculating billing demand and demand charges against

each connection was wrong and the load violation charges were levied wrongly.

The case of the respondents, on the other hand, is that since the summation

metering was dismantled on 30th July, 1999 and individual meters were installed on

7th September, 1999, load violation charges were levied against both the

connections after dismantling of summation metering and installation of individual

meters by earth mechanical summation of maximum demand as indicated by both

the meters. The case of the appellant before us is that the amount of the bills was

paid under protest whereas the case of the respondents is that there was nothing on

record to indicate that the payment was made under any protest or reservation.

Therefore, the reliance upon these judgments is wholly misplaced.

13. During the course of arguments, the learned counsel for the appellant also

referred to the following observations made in Shri Vallabh Glass Works (supra)

"Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the Court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances, touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. "

In our opinion, the abovereferred view of the Supreme Court does not help

the appellant because the period of limitation prescribed in the Limitation Act for

recovery of the amount being claimed by the appellant expired on May, 2004 and

there has been no reasonable explanation from the appellant not approaching either

the civil court or the writ court for as much as about six years.

14. The learned counsel for the appellant has also referred to the decision of the

Supreme Court in Madras Port Trust versus Hymanshu International by its

Proprietor V. Venkatadri (Dead) by L.R.s AIR 1979 Supreme Court 1144 where

the Court, inter alia, observed that the Government and public authorities should

adopt the practice of not relying upon the technical pleas for the purpose of

defeating legitimate claims of the citizens and do what is fair and just to the

citizens. It was further observed that if a government or public authority takes a

technical plea, the Court has to decide it and if the plea is well-founded, it has to be

upheld by the Court, though ordinarily, such a plea should not be taken unless the

claim is well-founded and by reasons of delay in filing it, the evidence for the

purpose of registering such a claim has become unavailable. In the case before

Supreme Court, the claim of the respondent for refund of the amount of demurrage

and transit charges etc. paid to the appellant had become barred by Section 10 of

the Madras Port Trust Act. It was noted by Supreme Court that it was a just claim

supported as it was by the recommendations of the Assistant Collector of Customs.

It was, in these circumstances, that the Apex Court declined to interfere with the

order of the High Court granting the refund to the respondent, in exercise of its

extraordinary jurisdiction under Article 136 of the Constitution. This judgment, in

our view, does not apply to the facts of the present case because the claim of the

appellant is being disputed on merits and one plea taken by the respondent is that

no record available with them indicates that the payment of amount in question was

made under protest.

For the reasons stated hereinabove, we find no merit in the appeal. The same

is hereby dismissed, without any order as to costs.

V.K. JAIN, J

CHIEF JUSTICE

JANUARY 16, 2013 bg/rd/sn