1.      This revision petition has been filed by the petitioner BSES Yamuna Power Ltd., against the order dated 16.02.2009 of the State Consumer Disputes Redressal Commission, Delhi (in short ‘the State Commission’) passed in Appeal No.A-08/40.

2.      Brief facts of the case are that the petitioner herein was the opposite party No.2 in the original complaint No.520 of 2005 filed by the complainant/respondent No.2 herein.  The complainant filed a consumer complaint before the District Consumer Disputes Redressal Commission, Delhi (in short ‘the District Forum’) for refund of the amount paid to erstwhile DESU, opposite party No.1 in the original complaint case which is now respondent No.1 herein. The complainant had deposited this amount with DESU for electrification of the society. However, the work was delayed by DESU and later on the complainant got the work done privately and asked for refund of the amount paid. The District Forum vide its order dated 08.11.2007 ordered as under:-

“In view of the above discussion and on the basis of letter of DERC dated 13.06.2005, the forum orders OP-1:

1. To refund the amount of Rs.1,12,750/- with interest at the rate of 9% from 06.08.1994 (date of legal notice issued to OP by Sh. P.C. Sharma, Advocate for complainant) till realization.

2. To pay a sum of Rs.5,000/- (Rupees five thousand only) as compensation to the complainant.

3. To pay a sum of Rs.2,000/-(Rupees two thousand only) as cost of litigation of the complainant.”

   Period of 60 days from the date of this order is granted to OP to comply the above direction failing which the OP will be liable for action under Section 25 and 27 of the Consumer Protection Act.”

3.      The opposite party No.1 preferred an appeal bearing No.A-08/40 before the State Commission alleging that opposite party No.1 is the holding company and the liability remains with distribution companies.  The State Commission vide its order dated 16-02-2009 allowed the appeal as under:-

“7.  In our view, it is the rules framed under the transfer scheme which has the statutory force and not the circular issued by the Government of Delhi.  As per the transfer scheme the liability of the holding company arises only in the following eventualities:-

         In case the respondent No.2 exhausts the limit of Rs.1.00 Crore per annum and the excess amount is not allowed by DERC in the revenue requirements of Discom then only the holding Company becomes liable.

8.   In the instant case, none of the aforesaid facts exist and as such, we allow the appeal by directing the respondent No.2 to refund of the amount as it has failed to show whether it has exhausted One crore per annum or rejection of revenue requirement by DERC.  However, in the peculiar facts and circumstances of the case, we direct respondent No.2 to refund the amount of Rs.1,12,750/- without interest and pay Rs.25,000/- over and above as compensation and cost of litigation.

9.  Appeal stands disposed of in aforesaid terms.”

4.      Aggrieved by the order of the State Commission, the present revision petition has been filed by the petitioner/opposite party No.2.

5.      Heard the learned counsel for the parties and perused the record.

6.      Learned counsel for the petitioner argued that the order of the State Commission shifting the liability from opposite party No.1 to opposite party No.2 is illegal as no appeal was filed by the complainant.  The State Commission had right to either accept or reject the appeal filed by opposite party no.1, but the State Commission did not have the authority to pass impugned order because no liability was fixed on opposite party No.2 by the District Forum. The State Commission could have remanded back the matter for fresh adjudication by the District Forum in the light of its observations.  The learned counsel pointed out that the complainant had prayed in the complaint that order be passed against respondents for refund of the deposited amount.  As District Forum passed the order only against one opposite party, the complainant could have preferred an appeal against that order for fixing liability on both the opposite parties.  Thus, the State Commission exceeded its jurisdiction and therefore, order cannot be sustained.   

7.      It was further pointed out by the learned counsel for the petitioner that amount was deposited in the year 1993, whereas the complaint has been filed in the year 2005 and the complaint was barred by limitation, but both the fora below have not given any attention to this fact.  Even the same was alleged in the written statement filed by the opposite parties.  The cause of action had arisen during the time of DESU as the DESU did not complete the work and application for refund was moved in the year 1994 itself.  As per the Consumer Protection Act, 1986, the period of limitation from cause of action is only two years.  For recovery suit, this limitation period is three years.  The complaint has been filed beyond these two limitation periods and therefore, District Forum should have not entertained this complaint on the ground of limitation.

8.      On the plea of the complainant that period of limitation stands automatically extended as the opposite parties acknowledged the liability, though shifted the same on one another, the learned counsel for the petitioner argued that the correspondence with the complainant started only after the limitation period was over and therefore, period of limitation cannot be considered as extended due to any correspondence.  In support of his arguments on limitation, the leaned counsel referred to the following judgement:-

National Bureau of Plant Genetic Resources Vs. North Delhi Power Ltd., & Ors., CC No.315 of 2012, decided on 15.12.2015 (NC).  It has been held that:-

“12.       On reading of the above, it is clear that the acknowledgment of liability extends the period of limitation only if the acknowledgment of debt is done in writing before the expiry of period of limitation for initiating the proceedings.  In the instant case, the period of limitation for raising a consumer dispute as per Section 24-A is two years.  The consumer complaint relates to the allegation of over charging on account of electricity connection upto December 2000.  The limitation for raising a consumer dispute in respect of said allegation obviously was till the end of December 2002. Letter dated 27.01.2004 from which the counsel for the complainant is seeking extension of period of limitation does not categorically acknowledge the liability. Even if the content of letter is taken to be acknowledgment, then also it is of no avail to the complainant because the limitation for filing the consumer complaint had already expired in December 2002 before the issue of letter dated 26.01.2004.  Thus, in our view letter dated 28.01.2004 does not extend the limitation.   Reference be made to the judgment of Supreme Court reported in (2008) 2 SCC 444 J.C. Budhraja Vs. Chairman, Orissa Mining Corpn. Ltd.  In view of the discussion above, it is clear that cause of action for raising a consumer dispute last occurred in December, 2000.  Consumer Complaint has been filed on 3.12.2012  i.e. almost 12 years after the arising of the cause of action.  Thus/in our view, the complaint is hopelessly time barred.  It is accordingly dismissed as barred by limitation.”

9.      The learned counsel for the petitioner further relied upon the judgment of High Court of Delhi in the case of Standing Conference of Public Enterprises Vs. Bses Rajdhani Power Ltd. & Ors., 2012 ELR (Delhi) 1298, wherein the High Court has observed that:

“16. The petitioner relies on acknowledgment of liability by BRPL in the letter of 25th Septembr,2004. However for such admission to extend the period of limitation within the meaning of Section 18 of the Limitation Act it has to be before the expiry of the prescribed period of limitation. Though the language of the Statute is clear in this regard, reliance if any needed can be placed on J.C. Budhraja supra and on the recent dicta in Suresh Kumar Joon Vs. Mool Chand Motors in CS (OS) 389/2009 decided on 22nd August, 2012 and the earlier judgment cited therein. The prescribed period of limitation for the excess payment for the month of May, 2001 would lapse in May/June, 2004 and the acknowledgment even if any, of liability in the letter dated 25th September, 2004 is thus not within the period of three years.

10.    Learned counsel for the petitioner further stated that this Commission vide its order dated 15.07.2016 had given direction to the complainant/respondent No.2 herein to clarify how the State Commission has power to shift the liability from opposite party No.1 to opposite party No.2 in an appeal filed by only opposite party No.1.  This order was again reiterated by this Commission in its order dated 21.04.2017.  However, till date the complainant has not explained the same.

11.    On the other hand, the learned counsel for respondent No.1 stated that the respondent No.1/opposite party No.1 is only the holding company and all the liabilities are to be shouldered by the distribution companies including the opposite party No.2.  The State Commission has relied upon the judgment of Hon’ble High Court in the matter of Govt. of NCT of Delhi & Ors. Vs. K.R.Jain & Ors., 2006 (88) DRJ 439 (DB) where it has been clarified that the responsibility of liabilities remains with the distribution companies.  Thus, it is clear that the holding company i.e. opposite party No.1/respondent No.1 is not responsible for refund of any amount to the complainant.  The State Commission has rightly allowed the appeal filed by opposite party No.1.

12.    Learned counsel for the respondent No.1 cited the following judgment in support of his arguments:-

North Delhi Power Limited V. Govt. of National Capital Territory of Delhi & Ors.,AIR, 2010 SC, 2302.  It has been held that:-

“29. The learned counsel next contended that the High Court had erred in interpretation of Rule 8(3) of the transfer scheme. It was urged that if the Rule is construed widely, it will be arbitrary and affect the foundation of the privatisation which is mutual agreement. We do not think so. On the other hand, the purpose of sub-Rule (3) is to cap any liability arising out of litigation, suits, claims etc. either pending on the date of transfer and/ or arising due to events prior to the date of transfer to be borne by the relevant DISCOM 1, DISCOM 2 or DISCOM 3, respectively. However, it will be subject to a maximum of rupees one crore per annum and any amount above this shall be to the account of the holding company and, even for any reason the Commission does not allow the amount to be included in the revenue requirements of the DISCOMS. The language is extremely clear. All that it obtains is capping of the liability. However, the nature of the liability and its being imposed on the DISCOMS alone is as clear as sunshine. To that extent, there can be no doubt that it includes all the liabilities including the liabilities on account of the personnel. Unlike Rule 3, Rule 8 (3) does not make any difference between the liabilities  32arising out of the transfer under Rule 4 or the liabilities contemplated in Rule 6. The contention is clearly incorrect.”

13.    Learned counsel for the respondent No.2/complainant stated  that the complaint was filed against both the respondents as they were shifting the liability to each other.  The complainant society was pursuing with DESU and its successor DVB, but to no avail.  Later on scheme of transfer was implemented and therefore, the complaint was filed because both the opposite parties i.e. opposite party No.1 and opposite party No.2 were shifting the responsibility to each other.  When the money was deposited with DESU, it must have come to the assets and liabilities of any company. As per the judgment of the Hon’ble High Court in Govt. of NCT of Delhi & Ors. Vs. K.R.Jain & Ors., 2006 (88) DRJ 439 (DB) (supra), the responsibility now rests with the opposite party No.2/petitioner herein.  It was a continuing cause of action till the money was refunded. Hence, there is no question of delay in filing the complaint.  Obviously, the complainant could not have filed any appeal against the order of the District Forum because District Forum had accepted the complaint of the complainant and ordered opposite party No.1 to refund the amount.  As both the opposite parties were shifting responsibility on each other, the District Forum fixed responsibility on one of them and therefore, the complainant was satisfied with the order of the District Forum.  Even now the complainant is satisfied with the order of the State Commission because one party has been asked to refund the amount deposited by the complainant.  The only interest of the complainant is that money should be refunded either by opposite party No.1 or by opposite party No.2 or by both.  Learned counsel for the complainant relied on the following judgements in support of her assertion:-

(1)    Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra & Ors., AIR 2013 SC 58.  It has been held that:-

“8.  A “legal right”, means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361).

(2)     Banarsi and Ors. Vs. Ram Phal, AIR 2003 SC 1989.  It has been held that:

“Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal, [1967] 3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., [1971] 3 SCR 247; Smt. Ganga Bai v. Vijay Kumar and Ors., [1974] 3 SCR 882. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.”

14.    I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record.  Learned counsel for petitioner has raised the issue that State Commission was not authorised to transfer the liability from opposite party No.1 to opposite party No.2 at the appellate stage as there was no order by the trial court i.e. District Forum against opposite party No.2.  I do not find any force in this contention. Section 107 of the Code of Civil Procedure, 1908  (CPC) mentions the following:-

“107. Powers of Appellate Court-(1)  Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a)   to determine a case finally;

(b)   to remand a case;

(c)   to frame issues and refer them for trial;

(d)   to take additional evidence or to require such evidence to be taken.

(2)   Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.”

15.    Moreover, the Hon’ble Supreme Court in C. Venkata Swamy Vs. H.N.Shivanna (D) by L.R. & Anr. etc. [Civil Appeal Nos.670-671 of 2011], decided on December 04, 2017 (SC) has held that:-

“11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the 4duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.”

16.    Thus, from the provision of Section 107 of CPC as well as from the judgment of the Hon’ble Supreme Court in C. Venkata Swamy Vs. H.N.Shivanna (D) by L.R. & Anr. etc. (supra), it is brought out that the first appellate court enjoys the powers of the trial court as well.  From this consideration, I do not find any illegality in the impugned order dated 16.02.2009 if the appellate court shifted the liability from one opposite party to another opposite party.

17.    The question of assets and liabilities between the holding company, the Delhi Power Company Ltd and the distribution companies like the petitioner herein has been adjudicated by the Hon’ble High Court of Delhi in Govt. of NCT of Delhi & Ors. Vs. K.R.Jain & Ors.,(supra). It is now settled that the liabilities for a consumer dispute has to be borne by the distribution company only and not by the holding company.  From this legal position, the petitioner is liable for returning the amount deposited by the respondent No.2 with the DESU.

18.    Coming to the question of delay in filing the complaint as raised by the learned counsel for the petitioner.  It has been contended by the learned counsel for respondent No.2/complainant that as the money was not returned back, it remained a continuous cause of action.  As Section 3 of the Consumer Protection Act, 1986 provides alternate remedy to the consumer and when the complaint is filed under Section 3 of the Consumer Protection Act, the provisions of this Act will be applicable.  Therefore, the present case is not a recovery suit and therefore, this limitation of three years shall not apply in the present case.  The limitation is two years for filing a complaint under Section 24A of the Consumer Protection Act, 1986 from the date of cause of action.  The Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), has held:-

“4. In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot.”

19.    Relying of the above judgment, I am of the view that in the circumstances of the present case the cause of action continued till the date of filing of the complaint. 

20.    Based on the above examination, I find that there is no illegality in the impugned order dated 16.02.2009 of the State Commission, if the liability of payment is shifted from opposite party No.1 to opposite party No.2/petitioner.  I also find that the complaint was not delayed as the cause of action continued till the date of filing of the complaint.  On the other hand it is also true that the complainant did not make sufficient  effort  in  the  matter  when  the  DESU was present or its successor  DVB was present.  The delay in filing of the complaint even if the cause of action continued cannot be allowed to become a source for enrichment.  The State Commission has allowed the refund of Rs.1,12,750/- without interest, which I find clearly reasonable in the facts and circumstances of the case. 

21.    On the basis of above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 16.02.2009 of the State Commission which calls for any interference from this Commission.  Accordingly, the RP No.3326 of 2009 is dismissed. The petitioner/opposite party No.2 to comply with the order of the State Commission within a period of 45 days from the date of this order.  No order as to cost for this revision petition.