SRI BIJOY KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of non-refund of security deposit by the Ops to the Complainant are the allegations arrayed against Ops.
2. Complaint in brief reveals that, Complainant to maintain his livelihood intended to run a Chuda Mill in the name and style as M/S Maa Sahada Sundari Chuda Mill, and to avail the power supply, applied to CESU, authorities(Op-1) and accordingly deposited Rs. 1,53,470/- as security money and obtained money receipt bearing No. 040135 on dt. 6/5/2014. The Complainant sold the unit to one Saroj kanta Dhal after execution of the saledeed and the copy of the saledeed is enclosed with the complaint. Subsequently, Sri Saroj kanta Dhal(Op-2)to run the unit deposited Rs. 1,46,174/- as security deposit vide M.R. No. 888889/AV, dt. 7/12/16 with same consumer No. REV360. The money receipt is enclosed. It is further revealed from the complaint petition, that after sale of the unit to Op-2, the security deposited amount is refundable, which has not been refunded and compelled this complainant to file the complaint and such non-refund of the security deposit amount by the Ops caused financial loss and mental agony and termed as deficiency in service. Hence it is prayed that a necessary order may be passed for refund of security amount of Rs. 1,53,470/- with compensation for mental agony of Rs. 30,000/- along with cost of litigation of Rs. 5,000/-.
3. Being Noticed, Manager (Electrical)-cum- Executive Engineer, Kendrapara Electrical Division No-1, CESU (Op-1)appeared through their Authorized officer and filed written statement to the proceeding. Op-1 in his written statement averred that Complaint is not maintainable and there is no cause of action to file the complaint against the Op-1. It is averred that Complainant on executed an agreement on dt. 10/6/2014 with Op-1 for availing power supply to his Chuda Mill with connected load of 56K.W. deposited Rs. 1,53,470/- as security deposit vide M.R. No. 040135 dt. 6/5/2014 and the agreement shall continue from the date of its execution and shall continue to be in force until the expiry of 05 (five) years. It is further averred that on sale of unit to one Saroj Kanta Dhal, Op-2 by the Complainant. Op-2 executed another agreement with Distribution Franchise, M/S Enzen Global Solutions Pvt. Ltd. of Op-CESU and Op-2 Saroj Kanta Dhal deposited an amount of Rs. 1,46,174 as security deposit vide M.R. No.-888889/AV dt. 7/12/2016 for availing power supply to his unit. On receipt of application of refund of security deposit of Complainant dt. 13.2.17, the application of Complainant was sent Op-1’s Head Office, the proposal of refund of security deposit was turned down on the grounds of non-completion of initial period of agreement with further direction to Op-1 to demand charge amounting of Rs. 2,77,200/- for the balance remaining period of completion of the initial period of agreement. The written statement of Op-1 concludes with the prayer that Complainant instead of paying the demand charges files the present case, which is to be dismissed with cost.
On receipt of Notice, Saroj Kant Dhal, Op-2 of the present proceeding appeared and filed his written statement and substantiated the facts/ allegations of the Complaint and further states that, he has no objection, if the legitimate dues of the complainant is returned.
4. Heard the submissions of Complainant, who appeared personally and case of the Ops on merit as non-appears on behalf of the Ops in date of hearing. Parties appeared into the dispute filed following documents to substantiate their case.
Documents filed by Complainant-
- Attested Xerox copy of M.R. bearing No.940135 dtd. 6/5/2014 showing payment of Rs. 1,53,470/- by complainant to CESU, Op-1.
- Attested Xerox copy of Agreement executed between Complainant & CESU, Op-1, dt. 10/6/2014.
- Attested copy of saledeed executed by Complainant to one Saroj Kanta Dhal (Op-2).
- Attested Xerox copy of letter addressed to Op-1 dt. 13/2/17 and dt. 9/5/17 by the complainant for refund of security.
- Attested Xerox copies of No dues certificate with letter dt. 15/11/16 granted to complainant by Asst. General Manager, Enzen Global Solutions Pvt. Ltd. Rajnagar, Sub-Division.
Documents filed by CESU, OpNo.1-
- Xerox copy of letter bearing No.7260 dt. 28/8/17 to complainant by CESU(Op-1).
- Xerox copy of letter along with photocopies of note sheets by DGM (Finance) Resources, CESU, Bhubaneswar to Op-1.
Documents filed by CESU, OpNo.2-
- Xerox copy of Agreement dt. 27/12/2016 executed between Saroj Kanta Dhal (Op-2) and M/S Enzen Global Solution Pvt. Ltd., the Distributor Franchise of ‘Licensee’, CESU.
- Attested Xerox copies of M.R. No. 888889 dt. 7/12/16 showing payment of Rs. 1,46,714, consumer No. REV-360 by Saroj Kanta Dhal (Op-2), &CESU (Op-1).
On perusal of Complainant, written statement of Ops and documents filed by the parties, the admitted facts of the case are that Complainant, Subrat Kumar Mohanty to run a Chuda Mill, namely M/S Sahada Sundari Chuda Mill, applied and availed power supply by executing an agreement with Op-1 on dt. 6/5/2014 and as per the agreement complainant paid an amount of Rs. 1,53,470/- as security deposit. It is also admitted that, Complainant after 2 years of running of said Chuda Mill sold the property to one Saroj Kanta Dhal(Op-2), by executing a sale deed and there was no outstanding arrear dues pending on the Complainant’s unit, further the complainant obtained a No-Due certificate from the Op’s franchise holder in connection to non-pending of any arrear dues. Subsequently, the new owner of the unit, Op-2 applied and availed the power supply being consumer No. REV-360 and executed an agreement with Distribution Franchise of CESU on dt. 7/12/2016 and also deposited an amount of Rs. 1,46,714/- as security deposit. It is further admitted that on transfer of unit to Op-2, request letters were made on different dates to Op-1, CESU by the Complainant to refund his security deposit as Complainant was neither the owner nor availing the power supply from the Op- Authorities, but till-date Ops have not refund the security deposit amount to the Complainant. It is further admitted fact that for availing the power supply to the said unit the first agreement was executed by Op-1 and complainant on dt. 6/5/2014 and the second agreement was executed between Distribution Franchise of Op-1 with Op-2 on dt. 7/12/2016, without terminating the earlier agreement.
The question before us to decide here that, whether reasons stated by the Op-electricity authorities as per their letter bearing No. 7260 dt. 28/8/17 for refund of security deposit and charging of demand charge of Rs. 2,77,200/- for the balance remaining period of completion of agreement is sustainable in eye of law or not? The plea of non-refund of security amount, Op- electricity authority states that, as per the agreement executed between Op and complainant, the terms and condition shall continue to be in force until the expiry of five years, which otherwise termed as ‘initial period of agreement’. Though the complainant sold his unit to Saroj Kanta Dhal(Op-2) after two years, and the Op-electricity authority also executed an agreement with Op-2, but as per the terms & condition of the agreement, on non-completion of ‘initial period’ of agreement, Op-1 has not in position to refund the security amount to the Complainant.
On perusal of the agreement, it is seen that Complainant executed the agreement with Op-1 being treated as a consumer of electricity to avail power supply. ‘Consumer’ under I.E. Act-2003 defined as “Consumer means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;”. In the present dispute, it is clear that so far the ‘supply of electricity’ is concerned Complainant can’t be treated as a consumer as per the definition under I.E. Act-2003, as Complainant is not availing any power supply to his unit rather a new owner, Op-2 is the recognized consumer under Ops, is availing the ‘electricity supply’ to run the ‘unit’ in question. On the other hand as per C.P.Act1986, Complainant as a ‘consumer’ has not received his security deposit from Op-1, which according to complainant is a deficiency in service of the Op-electricity Authority. As the Op- electricity authority challenge the maintainability of the Complaint by submitting that Complainant has neither any locusstandi nor has any cause of action to file the Complaint. In this regard, we, opine that, when the security amount remains with Op-1 till date, without providing any power supply, the case of is continued till-date and Complaint is maintainable before this Forum.
The agreement present before us reveals that, there is no specific condition in regards to ‘termination of Agreement’ or ‘refund of security’. In the present dispute though the agreement is silent regarding ‘refund of security’, and ‘termination of Agreement’ but in clause-2 of the Agreement’ condition & supply’, which speaks that Complainant/consumer under takes to abide by the contents of OERC Distribution (condition and supply) code, 2004. If we, take into consideration of Regulation 16 &22 of the said code which relates to ‘termination of the agreement’ and refund of ‘security deposit after termination of the Agreement’. But both the Regulations are not applicable to the present dispute as neither the agreement of the complainant is terminated nor the initial period of the agreement is completed. Further the OERC-Code-2004 (condition and supply) is equally silent, when the situation like present dispute arises. In the case in hand, the Agreement and OERC-code-2004 reveals that before completion of ‘initial period’ of agreement no security shall be refund to the consumer. Similarly the OERC-code 2004 doesn’t allow the license(Op-1) to execute a fresh agreement with new consumer, when according to the agreement initial period is not completed and the earlier agreement is in force. The fact discloses that, after 2 years of execution of the agreement, complainant sold his unit to Op-2, without any pending arrear dues and Op-2 executes a fresh agreement with Op-electricity authority, when the so called ‘initial period’ of the agreement executed with Complainant is not completed. In the context both the Op-electricity authority and OERC, code-2004 are completely silent for return of security amount. If for the shake of argument and not admitting the pleas, it is presumed that the Op-electricity authority after execution of agreement with complainant and before completion of the duration of the agreement is entitled to execute a fresh agreement, with another Consumer (Op-2) without terminating the earlier agreement which according to Op-electricity authority shall remain in force for a period of five years. Our unanimous view is that on execution of a second agreement the first agreement lost its force and the terms and conditions of first agreement is not binding on the parties. It is a fit case where the Court/ Forums should intervene to provide Justice to the aggrieved parties, in absence of any specific contract and unilateral interpretation of the agreement by one of the parties. Accordingly, it is the lawful right of the complainant to get back his security deposit pending with the Op-1 and the ultimate demand charge of Rs. 2,77.200/- of the remaining balance period of completion of the agreement is not in accordance with law and Op-electricity authority can’t claim such a amount on the complainant as per our aforesaid observations. Complainant is entitled to get back is security deposited amount along with other legitimate financial benefits and the acts of Op-electricity authority is treated as deficiency is service. It appears from the acts of the Op-electricity authority that such non-refund of security amount definitely causes financial loss and mental agony to the Complainant. Complainant in his petition prayed for a compensation of Rs. 30,000/- for mental agony, and Rs. 5,000/- for cost of litigation, which according to us is in a higher side.
Having observation reflected it is directed that, Op-1, Manager (Electrical) –cum- Executive Engineer, KED-1, Kendrpara shall take necessary steps to refund the security amount of the Complainant of Rs. 1,53,470/- (Rs. One lakh Fifty three Thousand Four hundred Seventy only) with 6% S.I. calculating from dt. 15/11/2016 (The date of issue of NDC) till its realization and to pay Rs. 2,000/- (Rs. Two thousand only) as cost of litigation. The ordered amount shall be paid to the Complainant within one month of receipt of this order, failing which 9% interest will be charged for the delayed period and action will be initiated as per the provisions C.P.Act, 1986 for non-compliance of the order.
Complaint is allowed in part with cost.
Pronounced in the open Court, this 22th day of November,2017.
I, agree. I, agree.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
