Shiv Industries vs Tata Power Delhi Distribution Ltd
2015 Latest Caselaw 1636 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                                 R.S.A. No.156/2014

                                      Decided on : 25th February, 2015

SHIV INDUSTRIES                                      ...... Appellant
              Through:              Mr. V.K. Goel, Advocate.

                         Versus

TATA POWER DELHI DISTRIBUTION LTD                      ...... Respondent
             Through: None.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant against the

judgment dated 22.3.2014 passed by Sh. Pankaj Gupta, the learned

Additional District Judge in R.C.A. No.59/2013 by virtue of which the

judgment and the decree dated 13.8.2013 passed by Ms. Ruchi Aggarwal

Asrani, the learned Civil Judge was upheld.

2. Briefly stated the facts of the case are that the present appellant,

M/s. Shiv Industries, a proprietary concern had filed a suit through its

sole proprietor Vinod Kumar Gupta for permanent and mandatory

injunction. The prayer in the suit was that the respondent, that is, North

Delhi Power Limited be restrained from raising and realizing the amount

of theft bill in respect of electricity connection No.K-002-1267367-IP and

002-1267376-IL installed at premises No.A-9, Group Industrial Area,

Wazirpur, Delhi-52. It may be pertinent here to mention that in the year

1998, an inspection of the premises was conducted and it was found that

he was indulging in fraudulent abstraction of electricity. The main

ground on the basis of which the restraint order was sought, is that these

are stale claims.

3. The respondent filed its reply and contested the claim.

4. On the pleadings of the parties, issues were framed and the trial

court dismissed the suit of the appellant solely on the ground that the

present appellant, in support of its case, had examined only one witness

Ram Kumar Gupta in the capacity of an attorney while as Vinod Kumar

Gupta, the proprietor, had not entered into the witness box at all. The

learned trial judge dismissed the suit holding that the attorney could

testify only with regard to filing of the suit and not with regard to the

matters in respect of which he had no personal knowledge. So far as the

report of inspection, which was conducted in the year 1998 is concerned,

it was observed that as he was not a signatory to the inspection report,

therefore, he would not be deemed to have the knowledge about the

inspection when the fraudulent abstraction of electricity was found.

Accordingly, the suit was dismissed.

5. Feeling aggrieved, the appellant preferred the first appeal which

affirmed with the judgment and the decree passed by the learned civil

judge dismissing the suit.

6. Still not feeling satisfied, the present regular second appeal has

been filed. I have heard the learned counsel for the appellant who has

sought to urge before this court that a substantial question of law which

arises for consideration before this court is whether the respondent could

raise a bill on the basis of alleged theft of electricity in respect of the

inspection conducted in the year 1998 when a notification has been issued

by the Lieutenant Governor in the year 2007 giving immunity of raising

the claim in respect of arrears of electricity charges pertaining to

erstwhile DESU or DVB.

7. In this regard, the learned counsel has also sought to place reliance

on case titled Lalit Gulati vs. Government of NCT of Delhi; 176 (2011)

DLT 1 where this court had upheld the validity of the notification passed

by the Lieutenant Governor on 16/19.5.2008 issued by the Department of

Power, Government of NCT of Delhi in exercise of powers conferred

under Section 108 of the Electricity Act, 2003 read with Notification

dated 20.2.2004 issued by the Ministry of Home Affairs, Government of

India. Accordingly, it is stated that the respondent could not raise a stale

claim and this is a substantial question of law arising in the present

appeal.

8. So far as the aforesaid judgment in Lalit Gulati's case (supra) is

concerned, this is not applicable to the facts of the present case for two

reasons. Firstly, in the said case the issue was as to whether the aforesaid

notification was discriminatory in nature or not. The reason for the

discrimination which was sought to be nullified by the judgment was that

some people had challenged the electricity bills pertaining to erstwhile

suppliers, namely, DESU and DVB and their matters were pending before

the court. The benefit of the notification was sought to be given to such

persons whose matters were pending in court with regard to these bills. It

was in this context that the Hon'ble High Court observed that the

notification was sought to be applied in a discretionary manner by raising

an artificial distinction between those persons who had gone to the court

challenging their dues and those who had not approached the court and

accordingly, the notification was stated to be applicable to all the persons

across the Board.

9. There is no such question involved in the present appeal. On the

contrary on the basis of the aforesaid judgment the question sought to be

raised is that the claim which is sought to be raised by the respondent is a

stale claim and, therefore, he should not be made to pay without realizing

the fact that it was not the respondent who had gone to the court but it

was the present appellant who had sought an injunction, both permanent

and mandatory, against the respondent and it is his suit which has been

dismissed by the two courts below by a concurrent finding.

10. Moreover in a suit unlike in a writ petition as in Lalit Gulati's case

(supra), a party has to plead and thus prove by adducing evidence, unlike

in a writ where which is treated not only as a pleading but also the proof

of that fact as it is filed by way of affidavit.

11. In the present case, there is not even an iota of averment that the

claim in respect of which injunction is being sought by the appellant is a

stale claim much less is a proof which has been produced, therefore, this

argument of desperation raised by the appellant to wriggle out of the

payment which is being demanded by the respondent. In my considered

opinion because of these defects, the judgment of Lalit Gulati's case

(supra) would not be applicable to the facts of the present case.

12. On the contrary, the trial court as well as the first appellate court

have rightly dismissed the suit of the appellant because its sole proprietor

Vinod Kumar Gupta has not entered into the witness box. The Supreme

Court in Vidhyadhar vs. Mankikrao & Another; AIR 1999 SC 1441 has

clearly held that where a party to the suit does not appear into the witness

box and states his own case on oath and does not offer himself to be

cross-examined by the other side, a presumption would arise that the case

set up by him is not correct. Based on the same analogy, as Vinod Kumar

Gupta, the sole proprietor has not entered into the witness box in the

instant case, consequently, the case which has been set up by him cannot

be deemed to have been proved and accepted by the court.

13. The concurrent finding returned by the two courts below is a

question of fact and it does not raise, in my considered opinion, question

of law much less a substantial question of law and accordingly, the

present appeal is dismissed.

V.K. SHALI, J.

FEBRUARY 25, 2015/'AA'