North Delhi Power Limited ( Now Known As Tata Power Delhi Distribution Limited) v. M/S Mahindra Cold Storage

RAJIV SAHAI ENDLAW, J. JULY 17, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th July, 2018 + EX.S.A. 4/2014 & CM No.9650/2014 (for stay). NORTH DELHI POWER LIMITED ( NOW KNOWN AS TATA POWER DELHI DISTRIBUTION LIMITED)..Appellant Through: Mr. Manish Srivastav, Mr. Ankit Agrawal, Advs. and Mr. Adib K. Khan, Sr. Manager, Tata Power – DDL. versus MAHINDRA COLD STORAGE ..... Respondent Through: Mr. B.P. Agarwal, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Execution Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (CPC) read with Order XLII Rule 1 of the CPC, impugns the order [dated 22nd April, 2014 in MCA-24/12 of the Court of Additional District Judge-12 (Central), Tis Hazari Courts, Delhi] of dismissal of Execution First Appeal filed by the appellant against the order [dated 13th December, 2011 in Execution No.56/2007 of the Court of Civil Judge-01 (North), Delhi] of dismissal of objections filed by the appellant to the execution sought by the respondent of the decree dated 17th October, 2002 in Suit No.183/1999 of the Court of Civil Judge, Delhi. 2. The appeal came up before this Court first on 29th May, 2014 when notice thereof was ordered to be issued and stay granted of execution proceedings. The said interim order has continued till now. The counsel for the appellant / defendant and the counsel for the respondent / plaintiff have been heard. 3. The respondent / plaintiff instituted the suit, from execution of judgment and decree wherein this appeal arises, for declaration that the bill raised by the Delhi Vidyut Board (DVB), being the predecessor-in-interest of the appellant, for the sum of Rs.17,12,545.58p was illegal, null and void and for permanent injunction restraining the DVB from disconnecting the electric supply to the premises of the respondent / plaintiff for non-payment of the said bill. 4. The said suit was decided vide judgment dated 17th October, 2002; the bill for Rs.17,12,545.58p, raised on 4th January, 1999, for the period from September, 1990 to December, 1991, was declared as null and void and not payable by the respondent / plaintiff and the DVB was restrained by a decree of permanent injunction from disconnecting electric supply to the premises of the respondent / plaintiff for non-payment of the said bill. It was further ordered that "outstanding amount be returned or adjusted in future bills". No appeal was preferred against the said judgment and decree which attained finality. 5. The respondent / plaintiff, in or about February, 2002, pleading that North Delhi Power Limited (NDPL) was the successor-in-interest of DVB against which the decree had been passed, applied for execution of the aforesaid judgment and decree and in column 10 of the Execution Application, as to the manner in which the Court's assistance was required, it was pleaded "by attachment of chair of C.E.O of NDPL". Else, nothing was pleaded in the Execution Application, as to execution of which part of the judgment and decree was being sought, whether of the decree of declaration or of the decree of permanent injunction or of the decree insofar as directing outstanding amounts to be returned or adjusted in future bills and if so, what amount and in what manner. 6. The appellant/defendant filed objections to the Execution Application, pleading that the respondent / plaintiff had not made any payment of the bill for Rs.17,12,539.58p and thus no monies were due for refund or for adjustment. 7. The respondent / plaintiff did not file any reply. Though the counsel for the respondent/plaintiff contends that a reply was filed but neither is he possessed of any copy thereof nor does a perusal of the Execution file requisitioned in this Court shows the respondent/plaintiff to have filed any reply to the aforesaid objections. 8. The Executing Court however, dismissed the objections and directed the appellant/defendant to refund or adjust the impugned amount, reasoning (i) that it was the contention of the counsel for the