Dakshin Haryana Bijli Vitran Nigam v. Hissar Metal Industries Limited

CM stands disposed of. RSA No.1808 of 2010 (O&M) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for declaration to the effect that memo dated 6.11.2000 issued by the appellant and addition of Rs.2,10,630/- in their account and Bill No.89 dated 10.11.2000 issued by the appellant were illegal and liable to be set aside and with consequential relief of permanent injunction restraining the appellant from disconnecting the electricity supply for non-payment of amount of Rs.2,10,630/-, was decreed. As per averments made by the plaintiff-respondent in the suit, it was consumer of the defendant-appellant having account No.A-85/LS and was making the payment of electricity dues regularly. The plaintiff- Company received a bill dated 10.12.1999 for a sum of Rs.9,86,071/- which was payable upto 16.12.1999. In this bill, a sum of Rs.1,72,786/- was shown as sundry charges without giving any details. On enquiry, it came to the knowledge of the plaintiff-Company that the aforesaid amount of Rs.1,72,786/- was added by the appellant to their account which pertained to some other company known as M/s Jindal Metal Limited, Hisar. It is the further case of the plaintiff-Company that it had no concern with the M/s Jindal Metal Limited, Hisar and the plaintiff-Company was an independent legal entity. It was further pleaded that there was no privity of contract between the parties that the dues of other consumer could be recovered from the plaintiff-Company. Since, the appellant was adamant to disconnect the electricity supply of the plaintiff-Company, Civil Suit No.56-C dated 15.12.1999 was filed in which stay of recovery and disconnection was granted by the Civil Judge (Sr. Division), Hisar. The appellant in that civil suit had claimed that the amount was charged from the plaintiff on the basis of Audit report. The said Audit report was cancelled by the then SDO of the appellant and the cancellation report dated 16.8.1993 of the SDO was produced in the Civil Court. Thereafter, the appellant withdrew the addition of the amount in question and made a statement in the Civil Court, Hisar on 17.10.2000. Accordingly, the plaintiff withdrew the aforesaid civil suit. It was further pleaded by the plaintiff-respondent that the defendant-appellant again issued memo dated 6.11.2000 whereby an amount of Rs.2,10,630/-(i.e. Original demand of Rs.1,72,786/- + surcharge etc.) was demanded from the plaintiff-respondent and it was threatened that if the amount was not paid within 7 days further action will be taken. As per the plaintiff-Company, the appellant was requested to withdraw the aforesaid notice but they paid no heed on the request of the plaintiff. Hence, the present suit. Upon notice, the defendant contested the suit raising various preliminary objections in the written statement. On merits, it was admitted that the plaintiff was a consumer of the defendant. It was further submitted that earlier there was an electric connection No.AA-21/1220 in the name of M/s Jindal Metal Limited, Hisar installed in the same premises. The above said account number was disconnected permanently in the month of January, 1997 and an amount of Rs.1,72,786/- was payable by M/s Jindal Metal Limited, Hisar after overhauling the account on the basis of consumption. The above said amount was pointed out by the Audit party by raising objection dated 5.7.1993 and the aforesaid amount of Rs.1,72,786/- was transferred in the account of the plaintiff being in the same premises and sister concern of the plaintiff-respondent. The above said amount had increased to Rs.2,10,630/- after adding surcharge. The aforesaid amount could not be charged earlier as the then SDO had written to the plaintiff that the amount was not chargeable. The aforesaid SDO was not competent to set aside the amount as pointed out by the Audit party and now the competent Authority has held that the amount was chargeable and, thus, the plaintiff-respondent was liable to pay the aforesaid amount. Other allegations were denied and it was submitted that the suit was liable to be dismissed. After completion of the evidence of the parties, the trial Court heard both the counsel for the parties and returned its findings on issues No.1 and 2 in favour of the plaintiff-respondent. Issues No.3, 4 and 5 were decided against the appellant. Issue No.6 was not pressed and consequently, the suit of the plaintiff-respondent was decreed. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellant filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 5.12.2009. Challenging the aforesaid judgment and decrees of the Courts below, learned counsel for the appellant has vehemently argued that the judgment and decrees of the Courts below have been passed without appreciating the evidence on record and are liable to be set aside as the appellant was entitled to recover the amount in question on the basis of audit objection from the plaintiff, it being sister concern and also situated in the same premises of M/s Jindal Metal Private Limited, Hisar from whom the amount in question was recoverable and thus, the following substantial questions of law arise in this appeal: “(a) Whether the judgment and decrees passed by the Ld. Courts below are based upon erroneous presumption of facts and law and are thus liable to be set aside? (b) Whether the observations of the Ld. Courts below are based upon mis-appreciation/non-appreciation of the evidence on record? (c ) Whether the documents exhibited in normal course is admissible in evidence unless the same is disproved? (d) Whether the onus to disprove the documents is on the plaintiff who has filed a suit for declaration?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The argument raised by the learned counsel for the appellant is without any merit. Admittedly, the alleged recovery pertains to M/s Jindal Metal Private Limited which was having electric connection No.AA-21/1220 and was disconnected permanently. It is also not in dispute that except the fact that the electric connection of the plaintiff-respondent is installed in the same premises where electric connection of M/s Jindal Metal Private Limited was installed earlier, there is nothing common between the parties. The appellants have failed to prove on record any instructions of the Department on the basis of which any amount recoverable from an independent legal entity could be recovered from another legal independent entity . The alleged undertaking (Ex.D2) given by the M/s Jindal Metal Private Limited, Hisar is an unilateral document and the same cannot bind the plaintiff-respondent. The appellant has not produced any undertaking/document whereby the plaintiff-respondent had assured the appellant to make the alleged payment. Moreover, there is no evidence on the file that the plaintiff- respondent is a transferee/successor of the premises from M/s Jindal Metal Private Limited. The plaintiff-respondent is an independent entity and it has taken new connection installed in the premises in question from the appellant-Department. Even before this Court, learned counsel for the appellant was unable to cite any law and rule which permits the recovery of an amount which is not recoverable by them otherwise. No substantial question of law arises. No other point has been urged. Thus, I find no merit in this appeal. Dismissed. May 12, 2010 (RAKESH KUMAR GARG) JUDGE