Super Auto Centre v. Bses Rajdhani Power Ltd

SANJIV KHANNA, J SEPTEMBER 14, 2011 'raj'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 14th September, 2011 + SUPER AUTO CENTRE .....APPELLANT Through: Ms. Radhika Chandrashekhar, Adv. versus BSES RAJDHANI POWER LTD .....RESPONDENT Through: Mr.Deepak Pathak and Mr.Krishnanu Adhikari, Advs. for Mr. Sunil Fernandes, Standing Counsel for BSES, RPL. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes CHIEF JUSTICE The present appeal preferred under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 2nd February, 2011 in CS(OS) No. 298/2004. 2. The plaintiff/appellant (hereinafter referred to as "the appellant") initiated a civil action seeking for declaration and permanent injunction. The averments basically in the plaint are that the appellant is a registered consumer of the defendant, namely, BSES, Rajdhani Power Ltd. (hereinafter referred to as the "Defendant-respondent") in respect of electricity supplied through K. No. 009/0888987 installed at its petrol pump at Ring Road, Sriniwas Puri, New Delhi. On 11th April, 2003, some officials of the respondent company came to the premises of the appellant and took notes about the machines and equipments installed there. As pleaded, on the basis of the inspection, certain irregularities were noticed and a proceeding for fraudulent abstraction of energy was initiated. Accordingly, a bill was issued on 17th June, 2003. The appellant challenged the same in the writ petition forming the subject matter of WP(C) No. 4147/2003. The writ court by an order dated 27th August, 2003 directed that the defendant-respondent shall afford an opportunity of personal hearing to the plaintiff/appellant and pass a speaking order. Thereafter, a speaking order came to be passed on 10th September, 2003 whereby the objections raised by the appellant were rejected. 3. After the rejection of the same, the plaintiff/appellant filed the present suit assailing the speaking order and sought a declaration that the aforesaid order is null and void. Apart from the prayer for declaration, an injunction was sought as a consequential relief. It was stated that a re-inspection was carried out on 30th December, 2003 and at that time the connected load was found to be 48.59 KW which was within the sanctioned load. 4. The defendant-respondent entered contest and took a preliminary objection that the suit was not maintainable in view of the provision contained in Section 145 of the Electricity Act, 2003 (for short "2003 Act"). That apart, objection was taken with regard to the pecuniary jurisdiction and other defences were also put forth as regards the merits of the case. 5. The learned Single Judge framed as many as seven issues. Issue No.1 reads as follows: "1. Whether the suit filed by the plaintiff for declaration and permanent injunction is maintainable in view of Section 145 of Electricity Act, 2003?" 6. The learned Single Judge adverted to issue no.1 and came to hold that the suit was not maintainable and, therefore, there was no necessity to give any finding on the other issues. Being of this view, he dismissed the suit as not maintainable and gave liberty to the plaintiff to file an appropriate application under Order VII Rule 10A(2) of the CPC. 7. We have heard Ms.Radhika Chandrashekhar, learned counsel for the appellant and Mr. Deepak Pathak, learned counsel for the respondent. 8. The core issue that emanates for adjudication in this appeal is whether the finding recorded by the learned Single Judge with regard to the maintainability of the suit is tenable. In this context, we may profitably refer to Section 145 of the 2003 Act reads as under:- "Section 145. Civil court not to have jurisdiction.— No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an