Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.114/2018
in S.C. Suit No.2754/2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No. 114 of 2018
(CNR NO. MH CC01-000368-2018)
In
S.C. SUIT No. 2754 OF 2017
Mohammed Irfan Sadique Khan
…....Plaintiff
V/s.
The Brihan Mumbai Electric Supply & Transport & Ors.
.....Defendants
Appearance:-
Mr. Ram Singh, Advocate for the plaintiff.
None present for Defendant.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 20th February, 2020.
ORDER
1. By this notice of motion, plaintiff has prayed to restrain
defendants from removing the reinstalled Meter bearing No.M160504,
Meter No.M160528 and Meter No.E892868 supplying the electricity
connection to the suit premises i.e. Shed No.7, Ground Floor, 231/233,
Society Building, Maulana Azad Road, Madanpura, Mumbai.
2. In support of notice of motion, plaintiff has filed affidavit
and it is averred that notice of motion is filed for restraining defendants
from removing the electricity meters. He has relied on the contentions
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raised in the plaint and submitted that if reliefs sought for are not
granted grave loss, harm, injury and prejudice will cause to him.
3. Defendants failed to file reply to the notice of motion.
4. Following points arise for determination. Those are
reproduced along with the findings and reasons against each of them as
stated below.
SR. NOS.
POINTS
FINDINGS
1. Whether the plaintiff has
established prima facie case ?
In the Affirmative
2. Whether balance of convenience
tilt in favour of plaintiff ?
In the Affirmative
3. Who would suffer irreparable loss
if relief of injunction is not
granted ?
Plaintiff
4. What Order ? As per final order
REASONS
As to point Nos.1 to 3 jointly.
5. It is the contention of plaintiff that the suit premises were
visited by office of Vigilance Department of Brihan Mumbai Electricity
Supply and Transport (In short “BEST”) Undertaking (of the Brihan
Mumbai Mahanagarpalika, BEST BHAVAN, BEST MARG, MUMBAI) on
18.01.2017 and inventory of articles and materials lying in the suit
premises was taken. Defendant No.1 illegally and unlawfully removed
three electricity meters installed to provide electricity connection to the
suit premises. Each Meter bearing Consumer No.540/360/001, having
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in S.C. Suit No.2754/2017
corresponding Meter No. M094200 (Three Phase) and Meter
No.L981138 (Three Phase) and Consumer No.540/360/013,
corresponding Meter No.E892868 (Single Phase). The said electricity
meters were removed from the suit premises on the basis of false premise
of tampering of the said meters by various modes. The officer of
defendant No.1 took custody of the said three meters in unlawful manner
and without following the procedure laid down under the Electricity Act
2003. Further defendant No.3 from Assessing Department of BEST
carried out provisional assessment on 18.01.2017 without verifying
actual site of the installation of the said meters.
6. It is further averred that the defendant No.4 allegedly found
fault with two meters bearing Meter No. M094200 and Meter
No.L981138. Defendant No.4 carried out inventory of the various
articles and unlawfully removed the electric meter without carrying out
any panchnama. The signature of plaintiff or his servant or agent was
not taken on the inventory list prepared by defendant No.4.
7. It is further averred that defendant No.3 imposed provisional
civil liability of the sum of Rs.30,81,365/- upon the plaintiff for loss of
95442 KWH Units. In the provisional assessment 3rd meter bearing
No.892818 has never been installed for providing connection of
electricity to the suit premises owned by plaintiff. Therefore, the entire
provisional assessment carried out by defendant No.3 is false.
8. It is further averred that on 18.01.2017, defendant No.4
opened the cabin of aforesaid three meters situated in common passage
where there are other several meters installed in the said meter cabin.
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Defendant No.4 suddenly entered into the said premises without
disclosing his identity. After carrying out inventory, he disconnected the
electricity supply of the suit premises by illegally and unlawfully
removing the three meters. Meter No. M094200 is an electronic digital
meter and other meters bearing No.L981138 and Meter No.E892868 are
based on mechanical system which have been installed long back and are
in rusted condition due to passage of time. Neither defendant No.4 nor
the provisional assessment officer had paid any heed to the said
conditions of rusting of two meters. After carrying out inventory,
defendant No.4 took signature of plaintiff on various blank papers. The
case was filed bearing LAC No.23/2017 with Nagpada police station for
theft of Electricity under Section 135 sub section 1 clause A of the said
Act.
9. It is further averred that the plaintiff approached to the
office of defendant No.4 on 19.01.2017 with request to reinstall three
electricity meters and for supplying of electricity connection to the suit
premises. The defendant No.4 called upon the plaintiff to pay minimum
sum of Rs.10,00,000/- in the event that the representation of the plaintiff
could be considered. Therefore, under the compelling circumstances,
plaintiff made payment of Rs.10,00,000/- to BEST by cash and demand
draft. The defendants have compounded the said case bearing LAC
No.23/2017 for a sum of Rs.1,10,000/-.
10. It is the contention of plaintiff that being aggrieved with the
provisional assessment of civil liability prepared by the defendant No.3
for Rs.30,81,365/-, the plaintiff approached to defendant No.2 vide letter
dated 07.02.2017. The plaintiff sent reminder letters dated 14.02.2017
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and 24.04.2017 to defendant No.2 for revision of the provisional
assessment bill under case No. V(N)/0016/T17. Plaintiff also informed
review Committee that he has not received final assessment bill of the
said case. In the said letter dated 25.04.2017, the plaintiff pointed out
several irregularity and illegality in the provisional assessment bill.
Defendant No.2 revised the said provisional assessment dated
18.01.2017 vide order bearing No.REVIEW COM.I/VN-0016-
T17/391/2017 dated 21.03.2017 is also based on imagination and
estimation. The plaintiff was never called upon to explain his grievances
before defendant No.2 -Review Committee. By the said order,
provisional assessment bill was brought down to the tune of
Rs.16,95,680/- for total unit loss 62822.
11. Being aggrieved by revised assessment order dated
21.03.2017, plaintiff preferred Appeal No.925/2017 before the
Government of Maharashtra Appellate Tribunal, State of Mumbai
Electricity Supply Board but the same was not entertained on the ground
that the Tribunal is not having jurisdiction to entertain the same.
Despite this, the defendant called upon the plaintiff to make further
payment of Rs.6,95,680/- or else reinstalled meter shall be removed and
electricity shall be discontinued. Therefore, plaintiff filed Writ Petition
(L) No.2374 of 2017 before the Hon’ble Bombay High Court. The
interim reliefs were granted in favour of plaintiff vide order dated
28.08.2017. On 28.11.2017, the said petition was allowed to withdraw
with liberty to make the appropriate application. The ad-interim
protection was continued to operate for period of three weeks from
28.11.2017. Hence, it is prayed that the notice of motion may kindly be
made absolute.
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12. Plaintiff has relied on the copy of inventory list prepared by
defendant No.4, Copy of provisional assessment dated 18.01.2017
carried out by defendant No.3, Copy of statement of payment made to
BEST, Copy of letter dated 07.02.2017, 14.02.2017 and 25.04.2017
issued by plaintiff to defendant No.2, Copy of revised assessment order
dated 21.03.2017 passed by defendant No.2, Copy of record of meter
unit reading for the financial year 2015-2016 and 2016-2017, Copy of
order dated 01.08.2017 passed by Government of Maharashtra Appellate
Tribunal, Copy of English translation order dated 01.08.2017 passed by
Government of Maharashtra Appellate Tribunal, Copy of WP (L)
No.2374/2017 and order dated 28.08.2017, Copy of order dated
28.11.2017.
13. Heard learned Advocate for plaintiff. He vehemently
submitted that after passing of revised assessment order, suddenly the
amount was reduced from Rs.30,81,365/- to Rs.16,95,680/-. Substantial
amount of Rs.10,00,000/- which has been noted in the order in WP (L)
2374/2017 is paid by plaintiff and defendants have not shown any
illegality in respect of the consumption of electricity from the said three
electric meters. They have failed to file reply to the notice of motion.
Therefore, it is prayed that the notice of motion may kindly be made
absolute.
14. It is contention of plaintiff that after carrying out inventory
of the articles and materials lying in the premises of plaintiff, the three
electricity meters were removed. The provisional assessment dated
18.01.2017 was issued and Civil liability of Rs. 31,81,365/- was imposed
upon plaintiff for loss of 95442 KWH units. According to plaintiff in the
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provisional assessment, third meter bearing No.892818 had never been
installed for providing connection of electricity to the premises owned by
plaintiff. The case bearing LIC No.23/2017 was filed by defendants
against plaintiff in Nagpada police station under section 135 of Electricity
Act 2003. On 19.01.2017, on request of plaintiff to reinstall three
electric meters, defendant No.4 called him to pay sum of Rs.10,00,000/-.
Under the compelling circumstances, plaintiff made aforesaid payment of
Rs.10,00,000/- in the office of defendant No.1. The provisional
assessment bill was revised under the application of plaintiff and the
amount was brought down to Rs.16,95,680/-. Therefore, the record
shows that the substantial amount of Rs.10,00,000/- have been paid by
the plaintiff. Further more, the copy of reading of the consumption of
units shows that everything was normal for financial year 2015-2016 and
2016-2017 in respect of the meter bearing No. E-892868, meter No.
L981138 and meter No.M094200. It is pertinent to note that defendants
have not filed any reply to the contentions raised by plaintiff. Therefore,
prima facie it appears that the plaintiff is entitled for the relief of
temporary injunction against defendants from removing the reinstalled
meter bearing No.M160504 for supplying the electricity connection to
the premises owned by plaintiff. Accordingly, point Nos. 1 to 3 are
answered.
As to point No.4 .
15. In view of for going discussion, the prayer clause (a) in the
notice of motion requires favourable consideration to restrain defendants
from removing the reinstalled Meter bearing No.M160504, Meter
No.M160528 and Meter No.E892868 for supplying the electricity
connection to the suit premises. Considering documents tendered on
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in S.C. Suit No.2754/2017
record, I am of the opinion that plaintiff is entitled for the relief of
temporary injunction. Resultantly, for the answer of point No.4, I pass
following order.
ORDER
1) Notice of Motion No.114 of 2018 made absolute in terms of prayer
clause (a).
2) Notice of Motion No.114 of 2018 is disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 20/02/2020
Dictated on : 20.02.2020
Transcribed on : 02.03.2020 and 03.03.2020
Checked on : 03.03.2020
Signed on : 04.03.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
05.03.2020 03.20 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 20.02.2020
Order signed by P.O. on 04.03.2020
Order uploaded on 05.03.2020
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