Punjab-Haryana High Court
Amarjti Kaur vs Uttar Haryana Bijli Vitran Nigam ... on 9 December, 2022
CR-6785-2018 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-6785-2018 (O&M)
Date of pronouncement: 09.12.2022
AMARJTI KAUR
...Petitioner
Versus
UTTAR HARYANA BIJLI VITRAN NIGAM AND ANR
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S. MADAAN
Present: Mr. Brijender Kaushik, Advocate for the petitioner.
Ms. Ruchita Garg, Advocate for
Mr. Vishal Garg, Advocate for the respondents.
*****
H.S. MADAAN, J.
Briefly stated facts of the case are that plaintiff Amarjit Kaur
had brought a suit against Uttar Haryana Bijli Vitran Nigam, Panchkula
(for short 'UHBVN'), and its SDO seeking a declaration that checking
report dated 16.04.2010 and demand of Rs.6,31,246/- against electricity
connection bearing No.SU42-1100-X/WSP-247 served upon the plaintiff
is wrong, illegal, arbitrary etc., and the plaintiff was not liable to pay the
said demanded amount but had deposited it under protest and compulsion
on 20.04.2010 besides carving for grant of mandatory injunction
directing the defendants to refund the said amount.
2. On being given notice, the defendants had put in appearance
and an application under Section 8 of the Arbitration & Conciliation Act
was filed by them for referring the parties to arbitration in view of such
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agreement between them. In the application, the applicants/defendants
contended that the electricity connection to plaintiff/respondent was
released under an agreement duly executed between them, which contains
an arbitration clause i.e. Clause No.29 providing that every dispute,
difference, question, matter or claim arising out of or concerning or
relating to the supply of electricity between the Nigam and consumer
shall be referred to the sole arbitrator of Chief Engineer (Planning and
Construction) of the Nigam or his nominee not below the rank of
Superintending Engineer. It is further provided that decision of the
arbitration shall be final and binding on the consumer and the Nigam.
Therefore, application be accepted.
3. This application was opposed by the plaintiff/respondent
contending that the dispute involved is not covered under the arbitration
clause. Even otherwise, the applicants/defendants are estopped from
filing the present application by their own act and conduct. The plaintiffs
had challenged the demand in question firstly in the year 2010 by
approaching the Consumer Forum by filing a complaint under Section 12
of the Consumer Protection Act, which was disposed of by DCDRF,
Ambala, vide order dated 23.07.2013. That complaint was hotly contested
without invoking arbitration clause. The defendants had appeared in the
Court on 03.03.2014 and on 01.07.2014, they filed an application under
Order 7 Rule 11 CPC and after contesting, the case hotly for about eight
years, filed the application in question, which is not maintainable when
there are serious allegations of theft, the matter cannot be referred to
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Arbitrator and it cannot be adjudicated by him, therefore, application be
dismissed.
4. After hearing arguments, vide detailed order dt. 14.08.2018,
the trial Court allowed the application, referring the matter to Arbitrator
to be appointed by applicant/defendants after giving proper notice to the
plaintiff.
5. This order left the plaintiff aggrieved and the present
revision petition has been filed and its notice was given to the
respondents who have put in appearance through counsel.
6. I have heard learned counsel for the parties besides going
through the record.
7. On perusal of the impugned order passed by the trial Court
goes to show that it has observed that plaintiff does not deny herself to be
consumer of electricity supplied by the UHBVN and having entered into
an agreement with the defendant No.1 in view of Clause 29 of the
agreement, the jurisdiction of Civil Court to entertain and try the suit is
barred. The trial Court has relied upon two judgments Hindustan
Petroleum Corporation Ltd. Vs. Pinkcity Midway Petroleums, 2003
(3) RCR Civil 686 (SC) and Regent Automobile Vs. Indian Oil
Corporation Ltd., 2008(3) RCR Civil 752 to the effect that once it is
admitted/established that there is an Arbitration clause in the agreement,
it is mandatory for the Court to refer the dispute to arbitration. Dealing
with the objections raised by the plaintiff that the application filed by the
defendants is highly belated, they had not invoked it before consumer
forum where the matter was hotly contested and before the trial Court
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also, it had been filed after gross delay. However, the trial Court referring
to judgment Rashtriya Ispat Nigam Ltd., Vs M/s Verma Transport
Company, 2006(4) RCR Civil 478 (SC), has observed that in this case,
the applicants have filed the present application before filing the written
statement and no statement on the substance of the dispute has been filed
by the defendants in the suit and in fact the earlier application U/o 7 Rule
11 CPC was also filed on the ground that jurisdiction of the Civil Court is
barred. District Consumer Forum had also dismissed the complaint for
the reason of the same being not maintainable. Therefore, it cannot be
said that the defendants have waived their right to seek arbitration and
subjected themselves to the jurisdiction of the Court causing any delay
amounting to waiving of right. With regard to objection that since there
are serious allegations of theft against the plaintiff, the matter cannot be
adjudicated upon by the Arbitrator, however, Clause 29 of the arbitration
agreement does not exclude the matters with regard to theft of electricity
from its preview. Therefore, such type of dispute can definitely be
adjudicated upon by the Arbitrator.
8. Learned counsel for the revisionist referring to judgments
Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. & Ors., in
Civil Appeal No.5440-2002 decided on 15.04.2011, Rashtriya Ispat
Nigam Ltd., and Anr., Vs M/s Verma Transport Company, 2006(4)
RCR Civil 478 has submitted that the matter could have been referred to
Arbitrator since the application for doing so was not filed at the first
instance to say before the Consumer Forum, however, such contention is
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without any merit. The judgments cited does not help the petitioner in any
manner. One has to see the things in proper context, when the dispute
between the parties was pending before the District Consumer Forum.
The complaint had been dismissed being not maintainable and thereafter,
in the suit, the defendants had filed an application which was allowed. No
fault can be found with the Court in making reference of dispute to
arbitration. There is no illegality or infirmity in the order passed in that
regard. The revision petition is found to be without any merit and is
dismissed accordingly.
09.12.2022 (H.S. MADAAN)
sumit.k JUDGE
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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