Case: M/S. Shree Om Enterprises Pvt Ltd Vs. Bses Rajdhani Power Ltd

behalf of the plaintiff in the telegram dated 01.04.1992 (Ex.P-12) was, therefore, an after thought. In so far as the oral evidence of PW 1 is concerned it is submitted that the said witness had been inconsistent inasmuch as while denying that any inspection was carried out on 14.06.1991 in his examination-in-chief, the said witness in cross-examination had admitted that such an inspection had taken place. In this regard learned counsel has pointed out that in the evidence of DW 1 there is a clear reference to the fact that the representative of the plaintiff, though present at the time of inspection, had refused to sign the inspection report. Merely because DW 1 was not aware of the status of the person representing the plaintiff Company at the time of inspection, will not cast any doubt with regard to the holding of the inspection itself. Lastly, it is submitted that the plaintiff having exceeded the maximum permissible load for SIP consumers was liable for payment of surcharge and higher tariff in accordance with the terms and conditions of supply of electric power by the DESU. Similarly, the appellant having failed to install the requisite capacitor was also liable to pay surcharge as contemplated by the said terms and conditions of supply. It is on the aforesaid basis and in accordance with the terms and conditions of supply that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February, 1992 was issued with the contemplation that if the same remained unpaid on or before 06.04.1992, electric supply to the premises of the plaintiff would be disconnected. 11. We have considered the submissions advanced before us. We have also perused the pleadings of the parties and the evidence of PW 1 and also DW 1 as well as the several documents brought on record including the notices dated 06.11.1991 and 03.12.1991 and the inspection report dated 14.6.1991 sent by the defendant to the plaintiff as well as the reply of the plaintiff dated 06.12.91 and the telegram dated 01.04.1992 in this regard. On such consideration what we find is that the present appeal raises what is pre-eminently a question of fact, namely, whether the Plaintiff had exceeded the sanctioned load as permissible for SIP consumers and whether the Plaintiff was responsible for low load factor as it had not installed the requisite capacitor. In a situation where three Courts have already dealt with the aforesaid question and have recorded concurrent opinions on the issue, it would be wholly inappropriate for this Court to go into the same unless an apparent perversity can be, ex-facie, found in the conclusions reached. It is from the aforesaid limited perspective that we had persuaded ourselves to go into the matter. On such consideration we find that the plaintiff in its reply dated 6.1.1992 submitted in response to the notices issued by the Defendant on 6.11.1991 and 3.12.1991 had only asserted that it is engaged in the manufacture and printing of calendars etc. and that it had not exceeded the sanctioned load. There is no positive stand taken with regard to the findings of the inspection as mentioned in the report dated 14.06.1991. Neither any evidence had been led by the plaintiff to establish that the machinery mentioned in the inspection note to have been found installed in its premises were not so installed or that such machinery was not used or utilized by the plaintiff for manufacture of PVC conduit pipes. It was incumbent on the part of the plaintiff, who had claimed in the suit that the report of inspection was incorrect, to prove the said facts by means of legally acceptable evidence. No such evidence was forthcoming, perhaps, because the plaintiff had taken the stand that no inspection at all was carried out. Though the plaintiff tried to prove the said fact i.e. that no inspection took place through PW 1, the evidence of the said witness on the aforesaid score is wholly inconsistent. The reliance placed on the evidence of DW 1 in this regard is also somewhat misplaced in as much as DW 1 had clearly stated that he was a member of the joint inspection team which had carried out the inspection on 14.6.1991 and that the report of inspection prepared was refused to be signed by the plaintiff’s representative though he was present at the time of inspection. The mere inability of the DW 1 to specify the status of the plaintiff’s representative present at the site would not, in any way, affect the credibility of the fact that an inspection was, infact, carried out. It has also to be noticed that the specific denial with regard to the business of manufacture of PVC conduit pipes in the premises of the plaintiff had come only in the telegram dated 01.04.1992 sent by the advocate representing the plaintiff. In the absence of any clear stand to the above effect in the reply of the plaintiff dated 6.12.1991, the subsequent plea put forth in the telegram dated 01.04.1992 must be understood to be an after thought on the part of the plaintiff and the result of an attempt to improve its case through its counsel.12. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is from the aforesaid limited perspective that we had persuaded ourselves to go into the matter. On such consideration we find that the plaintiff in its reply dated 6.1.1992 submitted in response to the notices issued by the Defendant on 6.11.1991 and 3.12.1991 had only asserted that it is engaged in the manufacture and printing of calendars etc. and that it had not exceeded the sanctioned load. There is no positive stand taken with regard to the findings of the inspection as mentioned in the report dated 14.06.1991. Neither any evidence had been led by the plaintiff to establish that the machinery mentioned in the inspection note to have been found installed in its premises were not so installed or that such machinery was not used or utilized by the plaintiff for manufacture of PVC conduit pipes. It was incumbent on the part of the plaintiff, who had claimed in the suit that the report of inspection was incorrect, to prove the said facts by means of legally acceptable evidence. No such evidence was forthcoming, perhaps, because the plaintiff had taken the stand that no inspection at all was carried out. Though the plaintiff tried to prove the said fact i.e. that no inspection took place through PW 1, the evidence of the said witness on the aforesaid score is wholly inconsistent. The reliance placed on the evidence of DW 1 in this regard is also somewhat misplaced in as much as DW 1 had clearly stated that he was a member of the joint inspection team which had carried out the inspection on 14.6.1991 and that the report of inspection prepared was refused to be signed by therepresentative though he was present at the time of inspection. The mere inability of the DW 1 to specify the status of therepresentative present at the site would not, in any way, affect the credibility of the fact that an inspection was, infact, carried out. It has also to be noticed that the specific denial with regard to the business of manufacture of PVC conduit pipes in the premises of the plaintiff had come only in the telegram dated 01.04.1992 sent by the advocate representing the plaintiff. In the absence of any clear stand to the above effect in the reply of the plaintiff dated 6.12.1991, the subsequent plea put forth in the telegram dated 01.04.1992 must be understood to be an after thought on the part of the plaintiff and the result of an attempt to improve its case through its counsel.12. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for.