Rakesh Kumar Sharma & Sons (Huf) vs Bses Rajdhani Power Ltd. & Anr.
2014 Latest Caselaw 4640 Del

$~SB-3
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Review Petition No.30/2012 & CM Nos.605-606/2012 (both for
        condonation of delay) in W.P.(C) No.5208/2010

        RAKESH KUMAR SHARMA & SONS (HUF)                                ..... Petitioner
                    Through: None.

                                                Versus

    BSES RAJDHANI POWER LTD. & ANR.              ..... Respondents
                  Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
                            Nikhil Sharma & Mr. Rahul Kinra,
                            Advs. for R-1 / Review Applicant.
                            Mr. John Mathews with Mr. Ranjan
                            Kumar & Mr. Harsh Vardhan, Advs.
                            for R-2 along with Mr. Neeraj Saraf
                            of R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                          ORDER

% 19.09.2014

1. On the last date of hearing i.e. 12th September, 2014, the following

order was made in these proceedings:-

"1. Inspite of earlier directions Mr. Neeraj Saraf is not present in the Court. The counsel appearing on his behalf has argued that the respondent BSES Rajdhani Power Ltd. (BSES RPL) can recover the electricity dues in the manner available to them and in any case the review sought by them is beyond the scope of review.

2. It is not disputed that the said Mr. Neeraj Saraf was a tenant in the property to which this petition pertains and consumed the electricity of which the demand is raised by the respondent BSES RPL and on account of which demand, the respondent BSES RPL claims a right to disconnect the electricity supply of that premises which has since been vacated by the said Mr. Neeraj Saraf.

3. I have enquired from the counsel for Mr. Neeraj Saraf as to where

Mr. Neeraj Saraf is now residing and in what capacity.

4. The counsel informs that Mr. Neeraj Saraf is residing at second floor of D-44, Kalkaji, New Delhi but is unable to tell in what capacity.

5. The counsel for Mr. Neeraj Saraf to on the next date also address this Court on as to why BSES RPL which is also supplying electricity to the premises at Kalkaji should not be directed to disconnect the electric supply to that property or any other property which Mr. Neeraj Saraf is presently occupying.

6. The senior counsel for the respondent BSES RPL states that the electricity bills of 904, Surya Kiran Building, 19 Kasturba Gandhi Marg, New Delhi are also in the name of Saraf Projects Pvt. Ltd. of which Mr. Neeraj Saraf is a Director.

7. The aspect of disconnection of electric supply to the said premises shall also be addressed on the said date inasmuch as the conduct of Mr. Neeraj Saraf is prima facie dishonest and no advantage of technicalities can be taken.

8. Renotify on 19th September, 2014 for personal presence of the said Mr. Neeraj Saraf and for hearing, including as aforesaid."

2. Mr. Neeraj Saraf has appeared today and his counsel on instructions

states that Mr. Neeraj Saraf was earlier a tenant in 904, Surya Kiran

Building, 19 Kasturba Gandhi Marg, New Delhi but has vacated the same

and is no longer in enjoyment / occupation of the said premises. The

counsel further states that Mr. Neeraj Saraf along with his family is residing

on the second floor of D-44, Kalkaji, New Delhi as a tenant under one Ms.

Madhu Jain, owner thereof.

3. Arguments on the aspect of disconnection of electricity supply to the

said premises at Kalkaji have been heard.

4. It is the contention of the counsel for Mr. Neeraj Saraf:

i) that the order if made, of disconnection of electricity supply to

the Kalkaji premises, would be beyond not only the scope of

the review petition which alone is under consideration but also

beyond the scope of the writ petition against the judgment dated

1st June, 2011 wherein review is sought;

ii) that the respondent no.1 / review applicant BSES Rajdhani

Power Ltd. (BRPL) has not made any demand on Mr. Neeraj

Saraf for electricity charges for which the electricity supply to

the premises at Kalkaji is sought to be disconnected and has

also not taken any proceedings for recovery of the said charges

and in the circumstances, the said Mr. Neeraj Saraf cannot,

under threat of disconnection of electricity supply to the

premises at Kalkaji, be made to pay the said electricity charges;

iii) that the order if any of disconnection of electricity supply to the

premises at Kalkaji would be beyond the jurisdiction of this

Court.

5. To appreciate the matter in correct perspective, a narration of the past

events is necessary:

(a) M/s Saraf Projects Pvt. Ltd. (SPPL) (respondent no.2 in the writ

petition) was a tenant under the writ petitioner M/s Rakesh

Kumar Sharma & Sons (HUF) on the first floor of property

No.E-5, South Extension Part-II (Market), New Delhi and the

said SPPL had obtained an electricity connection in the said

tenanted premises in its own name from the respondent no.1 /

review applicant BRPL;

(b) in CS(OS) No.842/2009 filed by the writ petitioner for eviction

of SPPL from the tenanted premises, SPPL agreed to vacate the

said premises on or before 7th January, 2013;

(c) this writ petition was filed contending that SPPL had

outstanding arrears of over Rs.55,00,000/- towards electricity

charges of the meter got installed in the tenanted premises and

that if the respondent no.1 / review applicant BRPL did not

recover the same from SPPL prior to 7th January, 2013, the writ

petitioner would be saddled with the liability thereof in

accordance with the Full Bench judgment of this Court in

BSES Rajdhani Power Ltd. Vs. Saurashtra Color Tones Pvt.

Ltd. AIR 2010 Delhi 14 and seeking a direction to the

respondent no.1 / review applicant BRPL to recover the said

charges from SPPL and to ensure that upon SPPL vacating the

premises and the writ petitioner being put back into possession

thereof, the writ petitioner is not saddled with the said liability;

(d) the writ petition was disposed of vide judgment dated 1 st June,

2011, without issuing notice thereof to SPPL, directing

respondent no.1 / review applicant BRPL to either immediately

recover its electricity dues from the said SPPL or to secure dues

qua the same and clarifying that if it failed to do so, it shall not

be entitled to deny electricity connection in the said premises to

the writ petitioner or to any other transferee of the said

premises, for the reason of the said dues;

(e) review has been sought by respondent no.1 / review applicant

BRPL of the said judgment dated 1st June, 2011 inter alia

pleading:

(I) that supply of electricity to the premises aforesaid could

not be disconnected due to the grant and operation of an

interim stay order dated 23rd August, 2006 by the State

Consumer Disputes Redressal Commission in a

complaint filed by SPPL and which complaint was

ultimately, vide order dated 16th December, 2008,

decided in favour of SPPL;

(II) on appeal by respondent no.1 / review applicant BRPL to

the National Consumer Disputes Redressal Commission

(NCDRC), the order dated 16th December, 2008 of the

State Commission was set aside vide order dated 7 th

August, 2009;

(III) SPPL preferred SLP(C) No.25343/2009 against the order

dated 7th August, 2009 of the NCDRC; during the

pendency thereof respondent no.1 / review applicant

BRPL issued a disconnection notice to SPPL on 7th

August, 2010 and since electricity charges were not paid

inspite thereof, electricity supply to the said premises

was disconnected on 15th September, 2010;

(IV) the SLP aforesaid was also dismissed vide judgment

dated 8th November, 2010.

(f) the review application was entertained and notice thereof issued

to the writ petitioner as well as SPPL.

(g) during the hearing of the review application on 20th July, 2012,

this Court was informed that in Contempt Case being Cont.

Cas. (C) No.48/2011 filed by the writ petitioner, SPPL had on

26th July, 2011 admitted that the liability towards electricity

dues was of SPPL. In this view of the matter, vide order dated

20th July, 2012 Mr. Neeraj Saraf and his two sisters who were

informed to be the Directors in SPPL were directed to remain

present in the Court on the next date of hearing;

(h) however on the next date i.e. 17th August, 2012, Mr. Neeraj

Saraf appeared and informed that besides himself his wife Ms.

Riya Saraf is the only other Director of SPPL; Mr. Neeraj Saraf

further stated that he intended to challenge the demand of

respondent no.1 / review applicant BRPL before the appropriate

forum under the electricity laws and sought time for the said

purpose; while the senior counsel for the respondent no.1 /

review applicant BRPL on 17th August, 2012 informed that the

dues as on that date were in the sum of Rs.63,29,992.69, Mr.

Neeraj Saraf contended that the dues would not be more than of

Rs.5,00,000/- to Rs.7,00,000/-; it was further the contention of

the senior counsel for the respondent no.1 / review applicant

BRPL on 17th August, 2012 that SPPL had also lied in

Contempt Case being Cont. Cas. (C) No.48/2011 on 26th July,

2011 by representing that the SLP against the order of the

NCDRC (supra) was then still pending when in fact the said

SLP stood dismissed on 8th November, 2010; a perusal of the

order dated 26th July, 2011 also disclosed that SPPL on that

date had while admitting the liability qua the electricity dues,

also sought an outer limit of three months to clear all the

electricity dues of respondent no.1 / review applicant BRPL;

in these circumstances, SPPL vide order dated 17th August,

2012 was directed to deposit a sum of Rs.7,00,000/- with

respondent no.1 / review applicant BRPL and Mr. Neeraj Saraf

and his wife Mrs. Riya Saraf were also directed to show cause

as to why they should not be directed to deposit the balance

amount and also as to why they should not be proceeded

against for making wrong statements before the Court;

(i) Mr. Neeraj Saraf failed to deposit the amount of Rs.7,00,000/-

within the time directed and vide order dated 24th August, 2012

further time was granted subject to a deposit being made of

Rs.10,00,000/- instead of Rs.7,00,000/-;

(j) thereafter the proceedings in the review petition were adjourned

from time to time;

(k) on 16th April, 2013, the counsel for SPPL sought a clarification

that the pendency of these proceedings shall not come in the

way of a challenge being made by SPPL to the demand of

respondent no.1 / review applicant BRPL before the Consumer

Grievance Redressal Forum (CGRF); the same was opposed by

the senior counsel for the respondent no.1 / review applicant

BRPL; vide detailed order of that date, SPPL was informed that

such clarification could be given subject to SPPL either

depositing the disputed amount before this Court, subject to the

outcome of the proceedings before the CGRF and / or subject to

SPPL giving security for the same; the same was not acceptable

to SPPL;

(l) on 13th May, 2013, it was informed that CGRF had since closed

the proceedings; the counsel for SPPL stated that he will be

taking legal recourse against the order of the CGRF and sought

adjournment;

(m) however no challenge before any fora was made by SPPL

against the order of CGRF; on the contrary, on 9th May, 2014,

the counsel for SPPL stated that if adjudication without pre-

deposit is permitted of the demanded amount, SPPL in

accordance with the said adjudication, will pay whatever

liability is found due.

6. It was in the aforesaid state of affairs that the order dated 12 th

September, 2014 reproduced hereinabove came to be made.

7. The senior counsel for respondent no.1 / review applicant BRPL has

highlighted that SPPL and the Sarafs are guilty of making a wrong / false

statement in the contempt proceedings aforesaid, of the SLP being still

pending till then when the same stood dismissed long back and of being in

breach of undertaking to clear the electricity dues within three months, also

given in the said contempt proceedings.

8. I have considered the mattes.

9. I am conscious that I am exercising review jurisdiction, the scope

whereof is limited. There is also merit to some extent in the arguments

aforesaid noted of the counsel for SPPL and Mr. Neeraj Saraf. However

what compels me to still hold that this Court should direct disconnection of

electricity supply to the premises at Kalkaji now in occupation of Mr. Neeraj

Saraf and his family is:

i) that the Courts, in legalese and though bound by the rules and

procedures, cannot forget the very purpose of their creation i.e.

to do justice. If in a case of gross abuse, as the aforesaid facts

would also disclose the instant case is, the Courts fail to pass an

order / direction necessary for doing justice, citing the reason of

their hands being tied by such legalese and procedural

restrictions, the same would be nothing but injustice and a

failure to perform their duty;

ii) justice in the aforesaid facts would be, to take every step which

is necessary to compel SPPL and Mr. Neeraj Saraf to either pay

the electricity dues or if interested in contesting the demand

therefor by BRPL, to file appropriate proceedings therefor; and,

iii) what is found is that SPPL and Mr. Neeraj Saraf are taking

advantage of the situation which is of their own creation by

abusing the process of law by first obtaining interim stay on

payment of electricity dues and / or of disconnection of

electricity supply in a proceeding which was ultimately held to

be misconceived and dismissed and then inspite of dismissal

thereof not paying the dues which had accumulated over the

time and simply leaving the premises to which the dues

pertained; not only so, thereafter when faced with contempt,

SPPL and Mr. Neeraj Saraf again gave an undertaking to the

Court to clear the dues within three months and are in breach

thereof also.

10. This Court at this stage is not merely exercising review jurisdiction

but has also as aforesaid issued notice to Mr. Neeraj Saraf and his wife Mrs.

Riya Saraf to show cause as to why they should not be punished for their

aforesaid conduct, falsehood and abuse of the process of this Court. I am of

the considered opinion that in exercise of such jurisdiction, this Court can

direct to be done what the person in contempt ought to have done.

11. As would be obvious from the above, SPPL and Mr. Neeraj Saraf

inspite of informing this Court that they would be challenging the demand,

have not done so till date, being conscious that if they do so, they, as per law

applicable, would be required to make a pre-deposit. They cannot be

allowed to so sit pretty and to the prejudice of others.

12. As far as the argument that respondent no.1 / review applicant BRPL

has not taken any proceedings for recovery against SPPL and Sarafs is

concerned, the spirit behind the judgment of the Full Bench of this Court in

Saurashtra Color Tones Pvt. Ltd. (supra) is of not compelling the

distribution companies as BRPL to take recourse to lengthy legal

proceedings for recovery of dues and to ensure recovery thereof by denying

electricity; it is a natural corollary thereof that if the person from whom

recovery is due shifts to another premises, electricity thereto be also denied.

13. I therefore permit respondent no.1 / review applicant BRPL to

forthwith disconnect electricity supply to the second floor of D-44, Kalkaji,

New Delhi in occupation of Mr. Neeraj Saraf and his family.

14. It is however clarified that the said disconnection is to be only for the

reason of the said premises being in occupation of Mr. Neeraj Saraf from

whom electricity charges are due and the said disconnection would not

affect the rights of Ms. Madhu Jain or any other person having ownership or

occupation rights to the said premises and in the event of Mr. Neeraj Saraf

and his family members vacating the said premises, the electricity supply

thereto shall be immediately restored.

15. List on 10th October, 2014 for further consideration. Mr. Neeraj Saraf

to also remain present on all further dates unless specifically exempted.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 19, 2014 'gsr'