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NON-REPORTABLE         IN THE SUPREME COURT OF INDIA

   CIVIL APPELATE JURISDICTION     CIVIL     APPEAL     No.     8207        of     2012   

Arising out of SLP (C) No.33409 of 2009)

Shree Om Enterprises Pvt. Ltd.     … Appellant  Versus

BSES Rajdhani Power Ltd.   … Respondent    

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J   

1. Leave granted.

2. The appellant is aggrieved by the dismissal of  

its suit by the learned trial court which decree  

has been affirmed in First appeal as well as by the  

High Court in Second Appeal.

3. The plaintiff is a Private Limited Company  

engaged in the business of printing of calendars,

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diaries, stationery items, packing materials since  

the year 1983 in premises located in A-98/3, Okhla  

Industrial Area, Phase II, New Delhi. The plaintiff  

claims to be registered as a small scale industrial  

unit under the Directorate of Industries, Delhi  

Administration.  According to the plaintiff it is  

also holding/held a license from the Municipal  

Corporation of Delhi for running the unit of  

printing press and has been registered under the  

Press and Registration of Books Act, 1867 and with  

the Registrar of Newspapers for India. The  

plaintiff also claims to have been allotted a code  

No. by the Reserve Bank of India for the purposes  

of import and export of calendars, diaries,  

booklets, wedding and greeting cards, printing  

books, posters and other material etc. printed in  

its unit at the premises described above.

4. According to the plaintiff it had been issued  

two separate electrical connections bearing No.K  

011 1304067 and K 011 1304075 for running the  

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printing press. The plaintiff received a letter  

dated 06.11.1991 (Ex.P-14) from the Assistant  

Engineer, Delhi Electric Supply Undertaking (DESU)  

stating that an inspection was conducted in the  

premises of the plaintiff  on 14.06.1991 in respect  

of electric connection No. K 011 1304067 in the  

course of which the connected load was found to be  

beyond the maximum permissible sanctioned load of  

100 KW for Small Industrial Power Consumers (SIP).  

The same had the effect of placing the plaintiff in  

the category of large Industrial Power Consumers  

(LIP). Accordingly, in the letter dated 06.11.1991  

the plaintiff was given an option to remove the  

excess load and it was further informed that till  

then the plaintiff would be billed at the higher  

tariff applicable to LIP consumers along with  

surcharge, as applicable, under the terms and  

conditions of supply. By the letter dated  

06.11.1991 the plaintiff was also informed that in  

the inspection carried out on 14.06.1991, the power  

factor was found to be below the prescribed limit  

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as the shunt capacitor had not been installed or  

maintained properly. Accordingly, the plaintiff was  

also informed that it was liable to pay surcharge  

at the prevailing rate on the total amount of bill.

5. In the plaint filed it was further stated that  

the plaintiff, who had no knowledge of the  

aforesaid inspection, received another letter dated  

03.12.1991 enclosing a copy of an Inspection Report  

dated 14.06.1991 (Ex.P.10).  In the said inspection  

report details of the machinery found installed in  

the premises of the plaintiff for manufacture of  

PVC conduit pipes were mentioned.  According to the  

plaintiff, on 06.01.1992, a common reply to the  

letters/notices dated 06.11.1991 and 03.12.1991 was  

sent claiming that the business of the plaintiff  

was printing of calendars, diaries, stationery  

items and packing materials; that there was no  

manufacture of PVC conduit pipes in its premises  

and further that there was no misuse of electricity  

and excess of load beyond the sanctioned load or  

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installation of inadequate and improper capacitor  

as alleged in the notices under reply.  However,  

according to the plaintiff, despite its reply dated  

06.01.1992 (Ex.P-11) a bill for Rs.3,38.378.02  was  

received by it for the period 06.06.1991 to  

February, 1992 threatening disconnection on failure  

to make payment of the said bill on or before  

06.04.1992.  It is in these circumstances that the  

plaintiff had filed the suit in question on  

06.04.1992 seeking a decree of perpetual injunction  

restraining the defendants from enforcing the  

disconnection notice and from disconnecting power  

supply against Meter No. K 011 1304067 installed in  

the premises of the plaintiff at A-98/3, Okhla  

Industrial Area, Phase II, New Delhi.  

6. The defendant, namely, General Manager, DESU  

filed a written statement in the case stating that  

on 14.06.1991 an inspection was carried out in the  

premises of the plaintiff which revealed that the  

total connected load in the premises was 190 KW  

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which is far in excess of the limit for SIP  

consumers, i.e., 100 KW. Accordingly, the notices  

dated 06.11.1991 and 03.12.1991 along with the  

inspection report dated 14.06.1991 were issued and  

on consideration of the reply dated 06.01.1992  

submitted by the plaintiff, the bill for  

Rs.3,38,378.02 was served and disconnection of  

electric power to the plaintiff’s premises was  

contemplated in the event the plaintiff failed to  

pay the bill on or before the due date. In the  

written statement filed by defendants it was  

categorically stated that machineries for  

manufacture of PVC conduit pipes were found  

installed in the premises of the plaintiff in the  

course of inspection held on 14.06.1991. It was  

further stated that such inspection was carried out  

in the presence of the representative of the  

plaintiff – Company.   

7. The parties had gone to trial on the aforesaid  

pleadings on the basis of which several specific  

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issues were framed. The plaintiff’s suit having  

been dismissed by all the courts, the present  

appeal has been filed contending that the dismissal  

of the suit, all along, is plainly opposed to the  

materials and evidence on record and that such  

dismissal, ex facie, discloses errors apparent on  

the face of the record.

8. We have heard Shri CS Vaidyanathan, learned  

senior counsel for the appellant and Shri K.Datta,  

learned counsel for the respondent.

9. Learned counsel for the appellant has  

elaborately taken us through the pleadings of the  

parties and the evidence of PW 1- Shri Gobind Ram  

Bafna and DW 1- Shri S.S. Gupta.  Learned counsel  

has submitted that from the evidence of PW 1 it is  

clear that no inspection was carried out in the  

premises of the plaintiff on 14.06.1991 as claimed  

which fact finds support from the evidence of DW 1  

who had admitted that he is not aware of the  

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identity and status of the person who was present  

on behalf of the plaintiff at the time of  

inspection. Learned counsel, by referring to the  

certificate issued by the Sales Tax Department  

(Exh.D-1), has submitted that in terms of the said  

certificate the plaintiff was entitled to purchase  

raw materials for the purpose of manufacture of,  

inter-alia, PVC pipes.  The said certificate only  

entitled the plaintiff to claim exemption from  

sales tax on such purchases and by no means could  

be understood to be proof of the fact that the  

plaintiff was actually manufacturing PVC pipes in  

its premises.  Learned counsel has also drawn the  

attention of the court to the Balance-sheet and  

Profit & Loss Account of the plaintiff –  Company  

enclosed in the Income-tax Return for the year  

ending 31st March, 1992 to show that no where in the  

said documents there is any mention of PVC conduit  

pipes which fact would have, in the normal course,  

found a mention had the plaintiff Company been  

engaged in the business of manufacture of such PVC  

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pipes. Learned counsel has also drawn the attention  

of the court to the telegram dated 01.04.1992  

(Ex.P-12) issued on its behalf whereby the findings  

recorded in the report of inspection dated  

14.06.1991 with regard to manufacture of PVC pipes  

had been categorically denied.

10. Learned counsel for the respondent, on the  

other hand, has submitted that the response of the  

appellant to the letters/notices dated 6.11.1991  

and 3.12.1991 issued by the competent authority of  

the DESU are absolutely vague and ambiguous.  Apart  

from asserting  that it was engaged in the business  

of manufacture of calendars, diaries, stationery  

items etc. and denying any misuse of electricity  

or exceeding the sanctioned load, the plaintiff in  

its reply dated 06.01.1992 had not taken any  

specific stand with regard to the findings of the  

inspection dated 14.06.1991. The said reply dated  

06.01.1992 does not contain any specific reference  

to the findings of the inspection regarding  

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installation of machineries which are normally used  

for manufacture of PVC conduit pipes.  The stand  

taken on 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  

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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  

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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  

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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  

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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  

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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.  

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13. For all the aforesaid reasons we find no merit  

whatsoever in this appeal. It is accordingly  

dismissed and the judgment and order dated  

18.08.2009 of the High Court of Delhi is affirmed.  

................J. [P.SATHASIVAM]

................J. [RANJAN GOGOI]

New Delhi, November 22,2012

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