Maharashtra Hybrid Seeds Company vs Seeta Badrinath
2018 Latest Caselaw 6833 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 661/2006

%                                                  16th November, 2018

MAHARASHTRA HYBRID SEEDS COMPANY
                                                          ..... Appellant
                          Through:       Mr. Ankit Swarup, Advocate
                                         with Mr. Suraj R. Kesherwani,
                                         Advocate (M. No.7705870873).
                          versus

SEETA BADRINATH
                                                       ..... Respondent

                          Through:       Mr. Abinash Kumar Mishra,
                                         Advocate (M. No.9811235958).

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the trial court dated 20.07.2006 by which

the trial court has decreed the suit of the respondent/plaintiff for

recovery of Rs.3,45,597/- alongwith interest at 9% per annum simple

from 08.06.2001 till the date of payment. The suit amount is the

amount which are the electricity dues which were payable for the

period for which the appellant/defendant was a tenant in the

tenanted/subject premises belonging to the mother of the

respondent/plaintiff, and after the death of the mother of the

respondent/plaintiff, the respondent/plaintiff has inherited the

property. The property is 25 bighas (25,000 sq.yards) of land

alongwith a farm house in village Satbari, Mehrauli, Tehsil Hauz

Khas, New Delhi.

2. The facts of the case are that respondent/plaintiff pleaded

that the appellant/defendant was inducted as a tenant in the subject

farm house in terms of the Lease Deed dated 01.12.1990 for a period

of 10 years w.e.f. 01.06.1990 at rent of Rs.4,000/- per acre for the first

three years and thereafter a 10% increase for three years and a further

increase of 10% for the balance period. It was further pleaded by the

respondent/plaintiff that in June, 1997, i.e. during the period of

tenancy, an electricity bill was received for a sum of Rs.76,921/- and

the respondent/plaintiff asked the appellant/defendant to correspond

with the local electricity authority as to the amount of the bill. On the

expiry of the lease, the appellant/defendant handed over possession on

03.07.2000 and at the time of handing over possession a document

was executed by the appellant/defendant, i.e. a possession letter,

which stated that all the dues which stood relating to the subject

premises have been cleared by the appellant/defendant. The

respondent/plaintiff however pleaded that subsequently on 29.05.2001

she was informed by the local electricity authority/Delhi Vidyut Board

(DVB) that there was a bill due for Rs.2,21,152.53/- for a period

comprised in the tenancy of the appellant/defendant, and this bill the

respondent/plaintiff paid because the respondent/plaintiff had in the

meanwhile agreed to sell her property to a buyer Sh. Ashok Shroff and

this bill was to be paid so that there is no dispute with the proposed

buyer Sh. Ashok Shroff. One more electricity bill was issued by

DVB for a sum of Rs.1,68,405.96/- and which was also paid by the

respondent/plaintiff on 08.06.2001 and which was also towards

electricity charges for a period within the tenancy period of the

appellant/defendant. Thus two bills totaling to Rs.3,89,558.49/- were

paid by the respondent/plaintiff and which covered period from

25.02.1992 to 01.06.2001 i.e. essentially within the lease period of

1990 to 2000. Since the suit premises were vacated in 03.07.2000,

hence the respondent/plaintiff did not claim the entire amount of Rs.

3,98,069/- from the appellant/defendant but only claimed a sum of

Rs.3,45,597/- alongwith interest. On account of non-payment by the

appellant/defendant of the amount due towards electricity dues, the

respondent/plaintiff ultimately issued a Legal Notice dated

17.08.2002, and which was replied to by the vague and evasive denial

by the appellant/defendant by its Reply dated 04.09.2002, and to

which the respondent/plaintiff gave a Rejoinder Notice dated

14.10.2002. Thereafter the subject suit was filed for recovery of

Rs.3,45,597/- with interest.

3. The appellant/defendant contested the suit by filing it's

written statement. It was pleaded by the appellant/defendant that no

doubt the appellant/defendant was liable to pay charges for the

electricity consumption but they had regularly paid all bills towards

electricity connections in the suit property. The electricity connection

was for agricultural power. It was also pleaded by the

appellant/defendant that the parents and relatives of the

respondent/plaintiff in fact used to regularly visit the farm house. It

was also pleaded by the appellant/defendant that the

respondent/plaintiff at the time of taking possession on 03.07.2000

had signed the document that no dues were pending of the

appellant/defendant. Appellant/defendant pleaded that the

respondent/plaintiff instead of verifying the exact liability, paid the

electricity bills, and therefore, the appellant/defendant is not liable to

reimburse the respondent/plaintiff.

4. After completion of pleadings, trial court framed the

following issues:-

"1. Whether the Plaintiff is entitled to a decree claimed. If so, to what amount? OPP.

2. Whether the DVB is a necessary party to the suit? OPD.

3. Whether the Defendants are not liable towards the bills in view of the annexure P-6 and the interest accruing thereon? If so, to what amount?

4. Relief."

5. The evidence which was led by the parties is that as

partially elaborated by the trial court in paras 19 to 22 of the impugned

judgment, and these paras read as under:-

"ISSUE NO.1

19. In her testimony as PW-1, Plaintiff deposed on oath the above mentioned facts of her plaint and proved on record the relevant documents as Ex.PW1/1 to Ex.PW1/25-B. She categorically deposed that the farm had been leased out by her mother in favour of the Defendant in the year 1990 for a period of 10 years and the Defendant vacated the farm

on 3.7.2000. As per clause 2(c) of the lease deed, charges of the electricity and water consumption in and around the farm were to be paid by the Defendant. PW-1 categorically deposed that the farm house remained vacant during the entire period since her parents were residing in Vasant Vihar. As such, the only electricity consumption on the farm was in the form of agricultural power by way of A.P. line. She also deposed that the Defendants kept her in dark about the outstanding electricity dues at the time of execution of document of handing over possession. Subsequently, as per WP-1 she received the two unpaid bills of agricultural power which she had to pay under pressure of litigation pending in the High Court and in view of assurance given by the Defendant. That they would reimburse the same. She also proved on record the entire correspondence that took place between her and the Defendants pertaining to the reimbursement of the said two bills. Although PW-1 was cross examined at length, her testimony as regards the issue under consideration remains unshaken.

20. PW-2 is an assistant finance officer of BSES, who proved the three unpaid bills (two for A.P. connection and one for DL connection) and a detailed calculation sheet of dues furnished by the DVB to the Plaintiff. PW-2 stated that the bills had been raised on the basis of load and not as per actual meter reading since the meter was defective. He stated that being new to the seat, he could not explain the basis of calculation made in the calculation sheet by the DVB. PW-2 volunteered that the bills had been prepared on the basis of sanctioned load with minimum billing.

21. PW-3 is an assistant in BSES, who had prepared the calculation sheet of DVB Ex.PW1/22. He deposed that the calculation sheet had been prepared by him on the advise of assistant finance officer Mehrauli because since 25.2.1992 there was no consumption pattern available due to the defective meters he proved on record as Ex.PW3/1 the site report dated 1.6.2001. He stated that the payments had been made by the plaintiff as per records available in their office. In his cross examination, he placed on record as Ex.PW3/X1, copy of his instructions to depose in this case.

22. Shri Sanjay Deshpandey, Manager of the Defendant company appeared as DW-1 in the witness box and in his testimony admitted that the farm had been given on lease to the defendant for a period of 10 years from 1.6.1990 and the defendant company thereafter handed over possession of the farm to the plaintiff after executing the

document Ex.PW1/6. He stated that at the time of taking back possession of the farm, plaintiff had specifically agreed having settled all the dues. DW-1 stated that o dues of electricity charges were pending against the defendant company, which had paid all the bills directly to the authorities. As per DW-1, the electricity department issued also bills against the plaintiff which were paid by her under coercion and defendant is not liable to reimburse the same. In his cross examination, DW-1 admitted that the calculation sheet Ex.PW1/22 of the DVB correctly reflects the details of the agricultural power connection being used by the defendant at the relevant time. He admitted that at the time of handing over possession of the farm, the defendant handed over only one electricity bill to the plaintiff, which was the last bill. He also admitted that the plaintiff paid the electricity bills twice after intimating the defendant. DW-1 also stated that the defendant had taken up the dispute of defective billing with the DVB but were told that the bills were correct and had to be paid.

(Underlining added)

6. On going through the two subject bills Ex.PW1/7 and

Ex.PW1/12, it is seen that these bills are claims of electricity bills as

on account of non-payment for the billing month upto and of February

1997 and dues from February 1992 . The bills are identical in nature

except that the second bill Ex.PW1/12 corrects the typed portion of the

bill Ex.PW1/7 stating the liability to be only Rs.1,68,405/-. A

reference to the cross-examination of the two employees of

the electricity department who deposed as PW-2 and PW-3,

namely Ms. Saroj Badhan the Assistant Finance Officer and Mr.

K.S.Chauhan the Assistant to PW-2, shows that the bills in

question were not issued on actual meter reading but because the

meters were defective hence the bills were issued on load basis. I may

note that it is in terms of the rules of the local electricity authority

where the meters are found defective, it is not as if the consumer is not

liable to pay the charges, and that in such a case the consumer is liable

to pay charges as per the load for which the meter has been

sanctioned. Also it is not the case of the appellant/defendant that the

meters were not defective and the appellant/defendant took steps to get

defective meters replaced. The meters were defective for many years

of tenancy and remained so without replacement.

7. Though learned counsel for the appellant/defendant

argued that the Assistant Finance Officer/PW-2 deposed that she was

new to the seat and she did not know the basis of calculation made in

Ex.PW1/22 showing the due amount from 25.02.1992 to 01.06.2001

as Rs.3,87,069/-, however in my opinion this statement of PW-2

cannot help the appellant/defendant in view of the proved position on

record that the meters were defective and since no meter reading was

recorded the bills issued were provisional bills, and were issued on

load basis. In fact, there is no reason to believe the

appellant/defendant of there not being a liability towards the two bills

Ex.PW1/7 and Ex.PW1/12, and the detailed calculations which are

proved as Ex.PW1/22, showing an amount due of Rs.3,87,069/-,

inasmuch as if the case of the appellant/defendant was that the

appellant/defendant had paid all electricity bills i.e. bills for the period

of tenancy from the year 1992 to 2000, then what was the difficulty

for the appellant/defendant in proving from its own record for the

payments made to the DVB for the tenancy period or in summoning

records of the DVB to show payments of bills during the tenancy

period. In fact, in the cross-examination of the witness of the

appellant/defendant namely Sh. Sanjay Deshpandey/ DW-1, and who

was the Manager of the appellant/defendant, he admitted in his cross-

examination on 16.02.2006 that he did not know if the bill for

agricultural power connection was paid by the appellant/defendant.

Mr. Sanjay Deshpandey/ DW-1 admitted that they had been receiving

the bills from DESU, however it is not deposed by DW-1 that

appellant/defendant had made all payments of the electricity bills for

the period of the tenancy, and that if bills were paid then what was the

documentary proof of payment of the bills be it from the accounts of

the appellant/defendant or by filing the paid bills. DW-1 has also

admitted in Cross-examination on 16.02.2006 that through the subject

agricultural power connection they were consuming electricity as a

tenant in the subject property.

8(i) Learned counsel for the appellant/defendant argued that

the subject bills have been received after handing over possession in

03.07.2000, and since the bills have been paid by the

respondent/plaintiff only in the year 2001 i.e after handing over of

possession, there cannot be any liability of the appellant/defendant

towards the bills raised after the possession of the tenanted premises

was handed over.

(ii) I however cannot agree with this argument urged on

behalf of the appellant/defendant inasmuch as it is not unknown that

there can be lethargy in issuing of the electricity bills but the mere fact

that there is lethargy of issuing of electricity bills for a period cannot

in any manner mean that a tenant who stays in the property is not

liable to pay the electricity bills for the period for which the tenancy

continued. In this regard there is no doubt of the liability of

appellant/defendant because Clauses 2(b) and (c) of the admitted

Lease Deed dated 01.02.1990 entered into between the parties

specifically provides that the appellant/defendant shall be liable to pay

all electricity and water charges consumed with respect to the subject

property taken on lease.

9. The trial court has rightly concluded that the

appellant/defendant was liable to pay electricity bills by observing as

under:-

"24. Learned counsel for plaintiff took me through the entire documentary evidence. Ex.PW1/1 is the original lease deed executed between the defendant and mother of the plaintiff. Ex.PW/13 is the domestic line electricity bill of Rs.76,921/-. Ex.PW1/4 and 5A & B are the correspondence done by the defendant company pertaining to the bill Ex.PW1/3. Ex.PW1/6 is the document of handing over possession. Ex.PW1/7 colly is the A.P.connection bill of Rs.2,21,152.53 ps and copies of cheque and receipt pertaining to payment thereof. Ex.PW1/12 is the A.P.connection bill for Rs.1,68,405.96 ps and Ex.PW1/12A & B are copies of cheque and receipt pertaining to the payment thereof. Ex.PW1/22 is the calculation sheet issued by the DVB pertaining to the agricultural power connection on the farm. Learned counsel also took me through the remaining exhibits which are the correspondence exchange between the parties.

25. As reflected from the documentary evidence available on record, bills Ex.PW1/7 for Rs.2,21,152.53 ps and Ex.PW1/12 for Rs.1,68,405.96 ps were paid by plaintiff only. Both the bills pertained to the period when the farm was under the tenancy with the defendant. Ex.PW1/22 is the calculation sheet issued by DVB pertaining to the agricultural power connection on the farm for the period between 25.2.1992 and 1.6.2001. As per the same, the total electricity dues came to the tune of Rs.3,87,069.74ps till 1.6.2001 at a rate of Rs.3,455.97ps per month. Despite an elaborate cross examination of all the witnesses, the correctness of calculation Ex.PW1/22 could not be unsettled by the learned counsel for defendant. Since the farm was vacated by the defendant on 3.7.2000 and Ex.PW1/22

reflects dues till 1.6.2001, the plaintiff has on her own restricted her claim to Rs.3,45,597/-

26. During final arguments, learned counsel for defendants argued that the bill Ex.PW1/3 had been paid by the defendant only. But admittedly defendant did not bring any evidence as regards the same. Similarly, there is no evidence in support of argument of learned counsel for defendant that plaintiff had been taking money from the defendant towards electricity charges. Rather, the correspondence exchanged between the parties shows otherwise, I fail to agree with the learned counsel for defendant that since plaintiff paid the said bills under duress, she is not entitled to reimbursement. It cannot be denied that the defendant utilized the agricultural power, for which they were under duty to pay in terms with the lease deed Ex.PW1/1. Argument of the defendant that the bills were disputed also fails to convince. For, there is no evidence to show any effort done by the Defendant to get the bills rectified during the entire decade long tenancy. Defendant kept enjoying the electricity for 10 years, that too the agricultural power and now seeks to wriggle out, which cannot be permitted.

27. Plaintiff has also claimed interest on the outstanding bill amount at a rate of 18 per cent per annum with effect from 8.6.2001 when she paid the same. Rate of interest claimed is on higher side. I the overall circumstances of this case, interest at a rate of 9 per cent per annum would be reasonable and sufficient to meet the ends of justice.

28. In view of above discussion, issue no.1 is decided in favour of the plaintiff and I hold it proved that plaintiff is entitled to recover a sum of Rs.3,45,597/- with interest thereon at a rate of 9 per cent per annum from 8.6.2001 onwards."

(Underlining added)

10. It is therefore seen that the appellant/defendant company,

which is financially a huge company having turnover of crores and

crores of rupees, is harassing a legal heir of a landlady by not paying

the electricity bills which were issued for the period for which

appellant/defendant was a tenant. As already stated, no evidence has

been led by the appellant/defendant that if all the bills for the tenancy

period were paid by the appellant/defendant, and thus showing that

except taking false excuses the appellant/defendant has failed to show

that the necessary charges towards electricity dues stood paid, with the

fact that the appellant/defendant would have known that since the

meters were defective and regular bills were not being issued, a

provisional bill would ultimately be raised, and that the

appellant/defendant took no steps to get the meter corrected by getting

installed a new meter or getting the regular bills issued.

11. In view of the aforesaid discussion, there is no merit in

the appeal. The appeal is dismissed with costs. Respondent will file

certificate of costs within a period of four weeks from today, and such

costs will be the costs in favour of the respondent and against the

appellant/defendant with respect to this appeal.

12. Amount deposited in this court by the appellant/defendant

be released to the respondent/plaintiff, alongwith interest accrued

thereon, in appropriate satisfaction of the judgment and decree.

NOVEMBER 16, 2018                           VALMIKI J. MEHTA, J
Ne