Chandigarh

DF-I

MA/4/2019

Sh. Rajnish Kumar - Complainant(s)

Versus

The Sub-Divisional Engineer, Electricity - Opp.Party(s)

Shrey Goel

21 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	MA/4/2019 IN CC/560/1997
Date of Institution	:	23/01/2019
Date of Decision	:	21/04/2023

 

Sh. Rajnish Kumar s/o Sh. Yashpal Sharma r/o House No.2512, Sector 19-C, Chandigarh.

… Applicant

V E R S U S

The Sub-Divisional Engineer, Electricity (Operational) Sub-Divisional No.1, Sector 23, Chandigarh.

… Opposite Party

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SMT. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Shrey Goel, Counsel for Applicant
	:	Dr. Shri Ram, Govt. Pleader for OP

 

Per Pawanjit Singh, President

1. This order shall dispose of an application filed by the applicant-H J & Company through its partner, for permission to appear and contest Complaint No.560 of 1995 and for deciding the case on merits.  Brief facts of the application are as under:-

1. It transpires from the averments as projected in the application that in the year 1998, OP had issued an electricity bill of approx. ₹1,98,000/- (hereinafter referred to as “subject bill”) without the fault of the then consumer-Sh.Rajnish Kumar, who approached this Commission (erstwhile Forum) and challenged the same.  This erstwhile Forum vide order dated 7.11.2007 had directed the Electrical Inspector to decide the dispute within a period of two months and had also stayed the recovery of the amount from the consumer. The said dispute was not decided by the Electrical Inspector, UT, Chandigarh till 12.11.2012, rather he had discussed in the arbitration proceedings that he arbitration cannot be proceeded further, being not maintainable, in view of this Forum order dated 7.11.2007 and the matter has become time barred. The OP had neither approached the Consumer Forum against the said order by the Electrical Inspector, Chandigarh nor any application for extension of time was sought by the OP, rather it had accepted the amount of current electricity energy without the disputed amount of ₹2,04,000/- approximately.  However, later on the OP had issued bill dated 11.7.2014 and had shown the amount of ₹2,54,368/- as the disputed amount which was stayed by the Consumer Forum. The then consumer-Sh.Rajnish Kumar contacted Sh. Kirat Lal, the then SDO and requested him to accept the current energy charges of ₹4,500/- and honour the orders of the Consumer Forum, but, he did not bother to honour the orders passed by the Consumer Forum.  Accordingly, Sh. Rajnish Kumar deposited an amount of ₹4,500/- as current charges by way of demand draft.  However, again the OP had raised a bill of ₹2,76,008/- in the month of September 2014, which was received by the then consumer-Sh.Rajnish Kumar who prepared a demand draft of ₹7,442/- and deposited the same. Finally, the then consumer-Sh.Rajnish Kumar approached the Consumer Grievance Redressal Forum, UT, Chandigarh (hereinafter referred to as “CGRF”) and requested for correction of subject bill and CGRF had decided that as the matter is pending before the Consumer Forum, same cannot be decided by CGRF.  Later on, said Sh.Rajnish Kumar, the then consumer had vacated the premises in dispute and entered into compromise with the owner Sh. Sanjeev Kumar vide compromise deed dated 23.5.2017 and as per the compromise Sh. Sanjeev Kumar had agreed to take all the liabilities arising out of the complaint pending before the Consumer Forum. The said Sh.Sanjeev Kumar had filed an application dated 4.8.2017 under Section 151 CPC before this Commission and vide order dated 23.2.2018, this Commission (erstwhile Forum) had again referred the matter to CGRF for proper adjudication and the application was accordingly disposed of.  However, the said CGRF had passed an order dated 19.7.2018 and dismissed the complaint on the ground that the said complaint by Sh. Sanjeev Kumar was not maintainable being devoid of jurisdiction.  Thereafter, the present applicant had purchased the premises in dispute from Sh. Sanjeev Kumar on 14.7.2017 and thereby stepped into the shoes of Sh.Sanjeev Kumar and Sh.Rajnish Kumar and has right to get the original complaint restored and challenge the faulty bill.  Prayer has been made that the application be allowed and the applicant be permitted to appear and contest the original complaint and the same be disposed of on merits. 
2. The application is resisted by the non-applicant/OP, inter alia, taking preliminary objections of maintainability, locus standi and also that the present applicant has no concern whatsoever with the premises in dispute or the subject bill.  On merits, admitted that the complaint was originally filed by Sh. Rajnish Kumar challenging the subject bill and the matter was referred to the Arbitrator (Electrical Inspector) by the Consumer Forum and the same was decided by the Electrical Inspector vide order dated 25.7.2005.  It is further admitted that earlier two applications were filed by Sh. Rajnish Kumar and Sh. Sanjeev Kumar for deciding the complaint on merits and the same were disposed of and even the present application filed by the applicant-H J & Company is not maintainable as it has no locus standi to file the present application for restoration of complaint. Prayer is made that the application of applicant, being false and frivolous, be dismissed.

2. In order to prove their case, parties have tendered/proved their respective evidence.
3. We have heard the learned counsel/Govt. Pleader for the parties and also gone through the file carefully, including the written arguments.
   1. Admittedly, the premises in dispute consisting of SCO No.1038-39, Sector 22-B, Chandigarh was owned by Smt. Gobinder Kaur, who had leased out the same to Sh. Rajnish Kumar and as per the mutual understanding, lessee Sh. Rajnish Kumar had agreed to pay the electricity charges of the premises.  It is further an admitted case of the parties that the OP had raised a bill amounting to ₹1,98,965/- qua the premises in dispute which was payable on or before 21/23.4.1997 for the period of 5.2.1991 to 10.6.1995 on the ground that the meter remained sticky or defective during that period and the subject bill was challenged by the then lessee Sh. Rajnish Kumar against the OP, before the then Forum (now Commission) in the year 1997 and the said consumer complaint was decided on 3.12.2001 vide which the Forum had referred the matter to the Arbitrator (Electrical Inspector) with regard to the subject  bill with further direction that the same be disposed of by the Arbitrator, preferably within six months.  It is further an admitted case of the parties that in the year 2005, the then complainant Sh. Rajnish Kumar had filed M.A. No.222 of 2005 before the Forum for termination of the arbitrator appointed by the Forum vide earlier order dated 3.12.2001, but, the Forum had decided to give more time to the arbitrator to decide the dispute vide order dated 7.11.2007, as is also evident from the order which is available in the annexed file. It is further an admitted case of the parties that, in the meantime, the then complainant Sh. Rajnish Kumar had given his rights and liabilities qua the premises in dispute to one Sh.Sanjeev Kumar, who again approached this Commission (erstwhile Forum) for permitting him to appear and contest the original complaint No.560 of 1997 and the said application (MA/37/2017) was also disposed of vide order dated 23.2.2018 by the District Forum and accordingly the matter was referred to the CGRF for proper adjudication of the case.  It is further an admitted case of the parties that now a third (present) application has been filed by the present applicant M/s HJ & Company through its partner claiming that it had purchased the premises in dispute from Sh.Sanjeev Kumar and it has right to get the original complaint restored and the present complaint be disposed of on merits.
   2. The case of the applicant in the present application is that as the original complaint is still pending before this Commission, in which arbitrator has been appointed and the arbitrator has not decided the matter in accordance with law, the complaint be restored/revived and the same be decided on merits.  On the other hand, the defence of the OP is that as the applicant has no locus standi to file the present application, and further when it has come on record that the award had already been passed by the Arbitrator on 25.7.2005, which has never been challenged, set aside or modified by any competent court of law, the present application is not maintainable and the same is liable to be dismissed.
   3. In the backdrop of the foregoing admitted and disputed facts on record, it is to be determined if the instant application for restoration of the complaint is maintainable and the complaint is to be disposed of on merits after restoration of the same, as is the case of the applicant, or if the present application, being not maintainable and devoid of merit, is liable to be dismissed, as is defence of the non-applicant/OP.
   4. The learned counsel for the applicant contended with vehemence that as it stands proved on record that the arbitrator was originally appointed by this erstwhile Forum vide order dated 3.12.2001 and the said arbitrator had not passed the award till date, the applicant, being assignee of the disputed property, has locus standi to file the application and the same be allowed and the complaint be disposed of on merits.
   5. On the other hand, learned Govt. Pleader for the non-applicant/OP contended with vehemence that as it has come on record that arbitrator appointed by this Commission (erstwhile Forum) had passed award dated 25.7.2005, which is also available in the file of M.A.No.222 of 2005, annexed with present application, and the said award has neither been challenged, modified nor set aside by any competent court of law, same has attained its finality and application for restoration of complaint is not maintainable, especially when the consumer complaint has already been disposed of by this Commission (erstwhile Forum) vide order dated 3.12.2001.
   6. There is force in the contention of the learned Govt. Pleader as the order dated 3.12.2001 makes it clear that the complaint No.560 of 1997 has finally been disposed of by this Commission (erstwhile Forum) with following directions :-

                “So in these premises we deem it expedient to direct that competent authority of Electricity department shall refer the dispute in question to the Arbitrator- Electrical Inspector with regard to the bill in question amounting to Rs.1,98,965/- and the said dispute shall be determined by the Electrical Inspector after affording opportunity to the parties, by giving a reasoned award, expeditiously, preferably within six months. The complaint stands disposed of as such, however, without prejudice to the right of the complainant to seek remedy as permitted by law, if still he feels aggrieved of the award rendered by the Electrical Inspector/Arbitrator.”

 

7. It is further clear from the award dated 25.7.2005, which is available in M.A. No.222 of 2005 and further when it is an admitted case of the parties that neither the said award was challenged by either party before any competent court of law nor the same was modified or set aside in accordance with law, it is settled that once the award has been passed by the arbitrator, no such application by any party for restoration  of the complaint lies, especially when the remedy to the aggrieved person is provided under the Arbitration and Conciliation Act, 1996.
8. Further, when it has come on record that though this Commission (erstwhile Forum) has passed order dated 7.11.2007 by holding that the arbitrator has not passed the order, but, since the copy of the award is available in the case file (at page 28 of M.A. No.222 of 2005), even the order dated 7.11.2007 is of no help to the applicant as the only remedy for the then complainant was to challenge the award before the competent court of law, which has not been done by him.  
9. Another application has been filed by Sh. Sanjeev Kumar who claimed himself to be purchaser of the premises in dispute and has also claimed that Sh.Rajnish Kumar, the original lessee had given him right to challenge the subject bill, but, the same is also of no help to him (Sanjeev Kumar). 
10. Finally the instant application has been filed by the present applicant-M/s H J & Company by claiming that it had purchased the premises in dispute from Sh. Sanjeev Kumar and has sought restoration of the original complaint, but it is further made clear that since the original award has not been challenged by complainant till date, the subsequent minutes passed by the Electrical Inspector, U.T., Chandigarh (available at page 17-18 of the application) are of no help to the present applicant, especially when it is settled law that in case of award passed by the arbitrator, the power for modification or setting aside of the same, only lies with the “Court” as prescribed under the Act. 
11. As it has come on record that the arbitrator was appointed by the Consumer Forum in the year 2001 and at that time The Arbitration and Conciliation Act, 1996 was in force, even as per this Act, power to set aside or modify the award lies with the Court as per Section 34 and “Court” has also been defined under section 2 (e) and the relevant sections of the Act are reproduced as under :-

“34. Application for setting aside arbitral award.- (1)Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2)   An arbitral award may be set aside by the Court only if-

(a)  the party making the application furnishes proof that-

(i)   a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b)   the Court finds that-

 (i)   the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii)   the arbitral award is in conflict with the public policy of India.

Explanation.-Without prejudice to the generality of sub-clause (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.

(3). An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had bow disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4)   On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.”

 

2(e) "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

 

12. In view of the foregoing discussion, it is safe to hold that in the light of aforementioned provisions of the Arbitration and Conciliation Act, 1996, the application for restoration of the complaint does not lie, especially when the award dated 25.7.2005 passed by the arbitrator has not been challenged before a competent court and also that the original complaint (CC/560/1997) has already been disposed of vide order dated 3.12.2001 passed by the erstwhile Forum, the instant application is not maintainable and the same deserves dismissal. 

4. In the light of the foregoing discussion, the present application of the applicant, being not maintainable, is dismissed, leaving the parties to bear their own costs.
5. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 21/04/2023 hg			[Pawanjit Singh] President
			[Surjeet Kaur] Member